Criminal Law - Evidence - Complaints - Other matters - Warnings - Possible unreliability of hearsay evidence.

Evidence Act 2001 (Tas), s 165.

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Singh v Director of Public Prosecutions [2006] NSWCCA 333; (2006) 164 A Crim R 284, referred to.

Criminal Law - Evidence - Credibility - Other matters - Warnings - Sexual offences against children - Evidence of adult of event in childhood.

Evidence Act 2001 (Tas), s 165(1)(c).

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187; FGC v Western Australia [2008] WASCA 47; (2007) 183 A Crim R 313; Anderson v Western Australia (2014) 46 WAR 363, referred to.

Criminal Law - Sentence - Sentencing procedure - Factual basis for sentence - Evidence - Burden and standard of proof.

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629, followed.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Indecent assault on partner's child - Sentence of four months' imprisonment not manifestly excessive.

Respondent: Acting Director of Public Prosecutions

Judgment Number: [2014] TASCCA 6

1. The appellant was tried on a single charge of maintaining a sexual relationship with a young person under the age of 17 years. The young person was his partner's daughter. At his trial, the Crown contended that he had committed unlawful sexual acts upon her on three identifiable occasions. The jury found him not guilty of the crime charged, but found him guilty of one crime of indecent assault. The learned trial judge, Pearce J, convicted him of that crime and sentenced him to four months' imprisonment. He appealed against both his conviction and his sentence. On 14 November 2014 we dismissed his appeal. These are our reasons for dismissing it.
2. The complainant gave evidence at the trial of the appellant committing unlawful sexual acts on three identifiable occasions, as follows. First, she said that on an occasion between about 2003 and 2005 the appellant licked her vagina. Second, she said that on an occasion between 2002 and 2005 the appellant attempted to penetrate her vagina with his penis. Third, she gave evidence of an occasion in 2005 when she was sitting in a bean bag. She said that the appellant touched her vagina with his fingers and inserted his finger into her vagina. There was also evidence of sexual touching of the complainant by the appellant on other occasions, but the Crown relied on that evidence only as background evidence or relationship evidence. There was no evidence of any complaint by the complainant at the times of the first and second alleged occasions relied upon by the Crown, but there was evidence that she complained promptly to her mother after the third occasion. The mother gave evidence of that complaint at the trial. She said that the complainant told her that the appellant "touched her vagina" - not that he had inserted a finger into her vagina. The mother gave evidence that she spoke to the appellant alone after her daughter complained, that she asked him about the complaint, and that he said he did not do it.
3. After the jury retired to consider its verdict, it sent a question to the learned trial judge, asking whether, in relation to the third occasion relied upon by the Crown, it could find the appellant guilty of indecent assault instead of aggravated sexual assault. His Honour told the jury that they could. Section 337B(1)(f) of the Criminal Code allows a jury to take that course. Following that direction, the jury found the appellant guilty of a single crime of indecent assault. It is clear that that verdict related to the third occasion relied upon by the Crown. It seems clear that the jury was not satisfied beyond reasonable doubt of the truth of the complainant's evidence, except to the extent that it was corroborated by the evidence of her mother that she had complained of the appellant touching her vagina on the third occasion.
4. The notice of appeal contains three grounds relating to the appellant's conviction. They read as follows:

"1 The verdict is unreasonable and cannot be supported having regard to the totality of the evidence.

1. The learned trial Judge erred by refusing to give a warning pursuant to section 165(1)(c) of the Evidence Act 2001, sought by the applicant on the basis of the age of the witness at the time of the alleged offence, with respect to the evidence of [the complainant].
2. The learned trial Judge erred by not giving a warning pursuant to section 165(1)(a) of the Evidence Act 2001 with respect to the recent complaint evidence of [the complainant]."
3. It is appropriate to deal with grounds 2 and 3 first since the outcome of those grounds could have an impact on the way in which some of the evidence is assessed for the purposes of ground 1.

Ground 2 - an adult's evidence of an event during childhood

1. The appellant contends that, in relation to the 2005 bean bag incident, the learned trial judge should have given the jury a warning in accordance with s 165 of the Evidence Act 2001 to the effect that the complainant's evidence might be unreliable. The relevant provisions in s 165 read as follows:

"(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(c) evidence the reliability of which may be affected by age ...;

(2) If there is a jury and a party so requests, the judge is to -

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."

1. Before the closing addresses at the trial, counsel for the appellant requested the learned trial judge to warn the jury that the evidence of the complainant might be unreliable because of her age at the time of the alleged acts, and because of the length of time between the alleged acts and the trial. The complainant was 11 years old at the time of the 2005 incident, and 19 years old at the time of the trial, which was between 8 and 9 years later. No other circumstances were relied upon by counsel as contributing to the asserted unreliability of her evidence.
2. The Evidence Act has been amended to prohibit judges from giving certain warnings as to the supposed unreliability of the evidence of children. Section 165 now contains the following subsection:

"(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3)."

1. Section 165A provides as follows:

"(1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following:

(a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses;

(b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults;

(c) give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child;

(d) in the case of a criminal proceeding, give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child.

(2) Subsection (1) does not prevent the judge, at the request of a party, from -

(a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable; and

(b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it -

if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information.

(3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury."

1. The learned trial judge refused to give the requested direction. He said this:

"I think it would be an entirely artificial construction to warn the jury that the evidence of a child, by reason of the status of the witness as a child, at the time that the events took place would subvert the intention of section 165 and 165A, even though the witness is an adult now. In my view, and this is the direction that I would propose to give, is that to direct the jury that a - that children are not unreliable - are not to be treated as a class of unreliable witness by virtue of their age and that there ought not be any direction of a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. That a direction like that ought to be given in respect of this witness but there ought to be a direction which relates to the passage of time between the time of the events that are being albeit are the subject of the evidence and the evidence which is, in fact, given in the normal course and the requirement that there be care for a range of reasons in assessing the evidence on that basis."

1. The complainant was an adult when she gave her evidence. It follows that neither s 165(6) nor s 165A was directly applicable. However the giving of the warning sought would have been inconsistent with the intention and purpose of those provisions, as his Honour observed.
2. His Honour gave the jury a thorough direction as to the possible difficulties encountered by the appellant in defending a charge relating to events said to have taken place between 8 and 12 years previously. He referred to the risk of contamination or distortion of memory over the years, noting that at the time the alleged events occurred the complainant was a child, aged between 8 and 14, and most likely not older than 12. He went on to deal with matters regarding the complainant's evidence, giving an "essential Crown witness" direction in the course of doing so. He said this:

"Now there is nothing inherently unreliable about evidence of a child or about her evidence just because she was a child. Children are not unreliable witnesses just because they're children but the principles I've explained to you about the lapse of time on the reliability of evidence apply to her as they apply to every witness.

And the fact that the prosecution in almost all relevant respects relies very heavily on her evidence leads me to the last direction that I'm going to give to you.

Now it's up to you how you assess [the complainant's] evidence. You may accept it or not accept it. I'm not attempting to persuade you either way but the care or caution you are required to observe about her evidence arises not only because of the lapse of time but also because her evidence is so essential to the Crown case.

The Crown case depends almost entirely on you accepting the truth and accuracy of what she says. In considering her evidence and whether it does satisfy you of the guilt of [the appellant] you can of course look to see if it's supported by other evidence. Her complaint in 2005 is one such piece of evidence. But the allegations she makes are serious and confronting. They inevitably attract strong emotions but in such a case where there is little or no supporting evidence you should scrutinise her evidence with great care and caution and that is so because unless you are satisfied beyond reasonable doubt that she's both an honest and accurate witness you can't find the accused guilty.

It may be that you regard her evidence as so convincing and [the appellant's] denials on oath and in his interview as so unconvincing that it is possible for you to reach that state of mind, that is, that you can safely act on her evidence to the high standard required in a criminal trial. You must be satisfied of guilt beyond reasonable doubt and in this trial it seems to me that you could only be satisfied of that beyond reasonable doubt if you were satisfied of the truth and reliability of [the complainant's] evidence beyond reasonable doubt."

1. Counsel for the appellant submitted to us that the evidence of the complainant was "evidence of a kind that may be unreliable" because it was based upon her perceptions of an event that occurred when she was 11 years old. He relied on a passage in the judgment of Deane J in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. That case concerned two alleged offences, said to have occurred when the complainant was 6 years old and 10 years old, each involving indecent touching when she had been asleep. The evidence as to the alleged offences was given more than 20 years after they were said to have occurred. Deane J said this at 101:

"It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance. The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant's evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinized with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant's guilt."

1. That passage was cited with approval by Kirby J in Doggett v The Queen (2001) 208 CLR 343 at [124].
2. Counsel for the appellant also relied on a passage in the judgment of McHugh J in Longman v The Queen (above) at 107-108, where his Honour said:

"The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), pp 269-270."

1. In JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187 - a case to which counsel did not refer us - Spigelman CJ commented on the observations made by Deane and McHugh JJ in Longman, saying this at [2]-[8]:

"The observations by Deane J and McHugh J are just that - observations. They have never been given authoritative force either from the High Court or from any intermediate court of criminal appeal.

Their Honour's observations are based on assumptions about child psychology which are widely held but which are not necessarily well founded. Many judges share a conventional wisdom about human behaviour, which may represent the limitations of their background. This has been shown to be so in sexual assault cases. (See R v Johnston (1998) 45 NSWLR 362 at 367-368.)

Legislative intervention was required to overcome the tendency of male judges to treat sexual assault complainants as prone to be unreliable. The observations of Deane J and McHugh J in Longman reflect a similar legal tradition that treated children as unreliable witnesses. In the past both categories of witnesses required corroboration.

Jurors may also reflect these widely held assumptions about children, as they may also do about sexual assault complainants. Such prejudices may be reinforced by the profession and the bench in the conduct of a criminal case. (See Quas JA et al, 'Do Jurors "Know" What Isn't So about Child Witnesses?' (2005) 29 Law and Human Behaviour 425.)

There is a significant debate as to whether expert evidence should be admissible about the ability of children to give accurate evidence, especially in child sexual assault proceedings. See, most recently, Uniform Evidence Laws Report, ALRC Report 102, NSWLRC Report 112, VLRC Final Report, December 2005 at 9.138-9.158; Criminal Justice Sexual Offences Task Force, Responding to Sexual Assault, Final Report, Sydney, December 2005, pp 165-176. These two recent reports refer to a range of earlier studies and reports. They also outline the legislation that already exists in some jurisdictions to permit such evidence and make recommendations for further legislative intervention.

There is a substantial body of psychological research indicating that children, even very young children, give reliable evidence. (See eg the references in Ligertwood, Australian Evidence (4th ed) LexisNexis Butterworths, Australia, 2004, para 7.31, fn 10 and 11.) These are complex issues, as reflected in reviews of the research on the ability of young children to distinguish fantasy from reality (see Woolley JD, 'Thinking About Fantasy: Are Children Fundamentally Different Thinkers and Believers from Adults' (1997) 68 Child Development 991; Taylor M, 'The Role of Creative Control and Culture in Children's Fantasy/Reality Judgments' (1997) 68 Child Development 1015; Sharon T and Woolley JD, 'Do Monsters Dream? Young Children's Understanding of the Fantasy/Reality Distinction' (2004) 24 British Journal of Developmental Psychology 293 at 294-296). The same is true of research about a child's ability to accurately recall stressful events (see McNally RJ, Remembering Trauma, Harvard Uni P, Cambridge Mass, 2003, pp 58-62).

The complexity of these issues is not reflected in the observations of Deane J and McHugh J in Longman, which should, accordingly, be treated with caution."

1. That passage was cited with approval by Wheeler JA, with whom Buss JA and Murray AJA agreed, in FGC v Western Australia [2008] WASCA 47; (2007) 183 A Crim R 313 at [68]. That case may be regarded as authority for the proposition that, unless there is some factor that suggests that the age of a witness at the time of the alleged abuse impaired the ability to recall, evidence by an adult of what occurred in his or her childhood does not require a warning to a jury.
2. Longman was decided 25 years ago. A pertinent observation about "Longman warnings" was made recently in another case in the Western Australian Court of Appeal - Anderson v Western Australia (2014) 46 WAR 363 - by McLure P, with whom Buss and Mazza JJA agreed, at [41]:

"However, given the now proven magnitude of past sexual offending against children and the scepticism which allowed it to flourish, the time may have arrived to reassess the rationale for or terms of the warnings given in child sexual abuse trials."

1. We agree with that observation.
2. This case concerns an event that is said to have occurred when the complainant was 11 years old and awake. Whatever she said to her mother, it is clear that she was old enough to understand the significance of what the appellant allegedly did to her, and how wrong it was. In our view there was no reason to treat the evidence of the complainant as to that event, given as a young adult, as "evidence of a kind that may be unreliable". The learned trial judge was right to refuse to give the warning that was sought. And the verdict of the jury shows that it approached the complainant's evidence with caution in determining whether to accept it, without any need for a warning. This ground therefore failed.

Ground 3 - hearsay evidence of an indecent assault

1. The mother's evidence of the complaint that the appellant touched her daughter's vagina was hearsay evidence. It was evidence of something her daughter told her, not something of which she had first-hand knowledge. However that evidence was admissible by reason of s 66(2)(b) of the Evidence Act. Under that provision, if a person has been called to give evidence, the hearsay rule does not apply to the evidence of a previous representation, given by a person who heard it, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. That was the situation here. The occurrence of the asserted fact was fresh in the memory of the complainant when she made the representation to her mother; the complainant was called to give evidence; and evidence of the complaint given by the mother was therefore admissible. It was admissible as evidence of the truth of the facts asserted: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297. However s 165(1)(a) requires evidence admitted under s 66(2)(b) to be treated as "evidence of a kind that may be unreliable".
2. The learned trial judge did not give the jury a s 165 warning about the mother's evidence of the complaint. By ground 3, the appellant contends that he should have.
3. The evidence of the making of the complaint was not disputed. The appellant contended at the trial that the complaint was false, but he did not contend that the complaint had not been made. The mother's evidence as to the making of the complaint was not challenged when she was cross-examined. The appellant gave evidence of the mother discussing the complaint with him promptly after it was made. The defence relied on the mother's evidence as to the complaint, arguing that it indicated the complainant's account lacked credibility.
4. Before counsels' closing speeches, the appellant's counsel requested a s 165 warning in respect of the mother's evidence of the complaint. The learned trial judge queried whether the evidence of the making of the complaint was not really in dispute. Counsel for the appellant responded, "No I would agree and withdraw the submission in respect to that particular piece of - of recent complaint." With respect, it seems that both he and the learned trial judge missed an important point. Warnings are given about the potential unreliability of hearsay evidence because it might not be as reliable as first-hand evidence. The warning that could have been given under s 165 was a warning about the potential unreliability of the assertions made in the complaint, not a warning about the reliability or otherwise of the evidence that a complaint was made.
5. Because of the opening words of s 165(2), a trial judge is not obliged to give a s 165 warning unless "a party so requests". By virtue of s 165(3), a trial judge need not give a s 165 warning "if there are good reasons for not doing so". If a request for a warning is made but then withdrawn, that would ordinarily be a good reason for not giving that warning.
6. Counsel for the appellant submitted that, although his request for a s 165 warning was withdrawn, the learned trial judge should have given the jury a warning that there was a need for caution in treating the mother's evidence as evidence that the appellant had touched the complainant's vagina. He referred us to authorities which establish that there are some situations in which a trial judge has a duty to give an appropriate caution or warning, even when there is no statutory obligation to do so: Longman v The Queen (above) per Deane J at 95-96; Singh v Director of Public Prosecutions [2006] NSWCCA 333; (2006) 164 A Crim R 284 per Basten JA, with whom Whealy and Latham JJ agreed, at [44].
7. We were referred to an extract from the Victoria Criminal Charge Book, published in Odgers Uniform Evidence Law, 11th ed, Law Book Co, 2014. Counsel for the appellant argued to the effect that the jury ought to have been directed as follows:
   • That it was not possible for it to assess the complainant's credibility at the time she made her complaint, and so it could not know whether or not she was then being honest.
   • That the process of repeating a statement compounds any weaknesses of the people involved, such as imperfect perception, memory or sincerity. Errors can occur when the original statement is made, when it is heard, or when it is repeated in court. If it accepted the mother's evidence as truthful, it might not be an accurate representation of what happened, either because of problems in what the mother heard or remembered, or because the complainant's complaint itself was not accurate or truthful.
   • That the complainant may have been subject to pressures that caused her to make a false statement, and which the jury could not know about.
   • That the complaint was not made in a court environment, and so the complainant was not under the same obligation to tell the truth as she would have been if she had been giving evidence in court.
8. The question for us was whether a miscarriage of justice resulted from such warnings not being given. Different approaches are taken in different States as to the thoroughness of a trial judge's charge to a jury. In our view there was no need for the jury to be given an elaborate direction about the evaluation of the reliability or otherwise of the evidence of the complaint to the mother. The absence of such a direction did not make the trial an unfair one. Any such direction could have distracted the jury from the central task of assessing the complainant's credibility, and could have given undue importance to the evidence of her complaint. In our view it was not inappropriate for the learned trial judge to take the course that he did, not giving a s 165 warning or a similar warning, giving the jury an "essential Crown witness" direction in relation to the complainant, and mentioning the complaint to her mother simply as one piece of evidence that supported her evidence. We therefore concluded that this ground should fail.

1. Section 402(1) of the Code provides as follows:

"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence ...".

1. The question that this Court has to determine in relation to ground 1 is whether the jury, acting reasonably, should have entertained a reasonable doubt as to the guilt of the accused in relation to the crime of indecent assault: Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443.
2. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494-495:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 - 619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443 - 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 - 462)."

1. The appellant contended that the evidence in relation to the bean bag incident lacked probative force to such an extent that this Court should have had a reasonable doubt as to the appellant's guilt, and should have concluded that the jury should have had such a doubt.
2. The evidence and contentions relied upon by the appellant can be summarised as follows:
   • The jury was not satisfied beyond reasonable doubt of the truth of the complainant's evidence as to the first and second occasions relied upon by the Crown. It was entitled to use its conclusions in relation to her credibility in respect of the first and second occasions when evaluating her credibility in respect of the third occasion.
   • As to the bean bag incident, the complainant gave evidence that the appellant had inserted a finger into her vagina, and that she had told her mother so, whereas the mother's evidence was to the effect that the complainant only said that the appellant had touched her vagina. It was argued that the accounts were inconsistent and that the inconsistency reflected adversely on the complainant's credibility. It was also argued that, as the jury was not satisfied beyond reasonable doubt of the truth of the complainant's evidence that the appellant inserted his finger on that occasion, that also reflected adversely on the complainant's credibility.
   • The complainant's evidence as to uncharged acts was as follows. After the bean bag incident, the appellant moved out, but he came back to the same address about two weeks later. She had memories of him touching her vagina and inserting his fingers into her vagina. That happened less after he returned to the home than it did before he left. After he returned, that happened probably two or three times per week. It happened in the lounge room, in the complainant's bedroom, and in the appellant's bedroom. He would still do it if there were other people in the lounge room, but not in an open way. Before he moved out, it happened about four times per week for about five years. Counsel for the appellant argued that this evidence lacked credibility because of the asserted frequency of the uncharged acts, the lack of any specific details with respect to any of them, the unlikelihood of the appellant indecently assaulting the complainant in front of witnesses, and the lack of corroborative evidence from any such witnesses.
   • In relation to the bean bag incident, the complainant gave evidence that the appellant was moving his finger in and out of her vagina for between two to five minutes. It was argued that that time estimate was so long as to lack credibility.
   • The complainant gave evidence that she had been playing with a Play Station immediately before that incident, and that afterwards she remained where she was, playing with the Play Station, until her mother came home. Both the complainant and the appellant gave evidence that there was an interval of half an hour to an hour before the mother came home. It was argued that it was not credible that she would have remained where she was, nor that she would have continued to play with the Play Station.
   • The complainant gave evidence that, in her complaint to her mother, she did not disclose any earlier touching by the appellant. She said that her mother asked whether the appellant had ever touched her before, but that she lied in her answer because she could not tell her mother the truth, and was too scared. It was argued that that evidence reflected adversely on her credibility.
   • The complainant gave evidence about her physical position and that of the appellant at the time of that incident, as follows. She was sitting on the bean bag in her pyjamas. He stood over her so that he was between her and her Play Station game. He straddled her legs and faced her. He put his hand down the front of her pants. He was kneeling when he did that. He moved from a standing position into a kneeling position. It was argued that the complainant's evidence lacked credibility because of the unlikelihood of the appellant being able to touch the complainant as described from the position she described.
   • The mother gave evidence that on that occasion, when she returned to the house, she was accompanied by a friend. She said that the complainant came to her and said that she wanted to talk to her in private, and that that they then had a private talk in the bathroom. She said that after that she spoke to the appellant in the kitchen while the friend was in the lounge room, and that she also remembered talking to the appellant outside the house. The friend gave evidence at the trial. She did not remember seeing the complainant that day. She said that she was drinking coffee with the mother in the kitchen, and that the mother mentioned that the complainant had said something to her about the appellant touching her in an inappropriate manner. It was argued that the discrepancies between the friend's evidence and the other evidence reduced the probative force of the evidence against the appellant.
3. Evidence concerning the bean bag incident was given not only by the complainant and her mother, but also by the appellant. He said that he was attempting to help the complainant stand up, that one of his feet slipped, that he toppled onto the complainant, making contact with her body, and that he rolled off to one side and apologised. He gave a similar version of events to the police during an interview, an audio-visual recording of which was tendered as an exhibit on the trial.
4. The jurors had the complainant's evidence of the incident. They had evidence from both the complainant and the mother of a prompt complaint to the mother once she got home. That was confirmed by evidence from the appellant that the mother had spoken to him immediately about the complaint. The jurors had evidence from the mother that her daughter seemed upset when she arrived home, and that she was crying when she described what had happened. The appellant's evidence, and what he said to the police, confirmed that there had been some sort of physical contact between him and the complainant in the bean bag.
5. In the circumstances, it was no doubt open to the jury to be satisfied beyond reasonable doubt that the appellant indecently assaulted the complainant on that occasion by touching her vagina. There may have been strong arguments in favour of disbelieving the complainant, or at least giving the appellant the benefit of the doubt. However it was reasonably open to the jury to disbelieve the version of events given by the appellant in his evidence and to the police, and to accept the evidence of the complainant, to the extent that it was corroborated by her mother. Having considered the relevant evidence and all the arguments, we were not persuaded that the evidence against the appellant was so lacking in probative force that, after making full allowance for the advantages enjoyed by the jury in seeing and hearing the Crown witnesses and the appellant, this Court should experience a reasonable doubt, nor that the jury ought to have experienced one. This ground therefore failed.

1. The appellant's notice of appeal contained two grounds of appeal relating to the sentence. They read as follows:

"1 The learned sentencing Judge erred by finding that the Applicant was not able to establish on the balance of probabilities that there had not been sexual touching by the Applicant prior to 2005, when the burden of establishing those acts rests with the crown and to the standard of beyond reasonable doubt.

1. The sentence imposed is manifestly excessive in all the circumstances of the case."

No mitigation based on the crime being an isolated event

1. In the course of his sentencing submissions to the learned trial judge, counsel for the appellant argued that the indecent assault that was the subject of the verdict should be treated as an isolated incident. He relied on the fact that the jury had not found the allegations as to the other acts relied upon by the Crown proved beyond reasonable doubt. The learned trial judge rejected that submission. In his comments on passing sentence, he said this:

"The defendant submits he should be sentenced on the basis that the crime was an isolated event and that entitles him to mitigation. I must assume that the other specific acts relied on by the Crown did not occur. The Crown led evidence during the trial of other sexual touching by the defendant of the complainant throughout the time the defendant lived in the family home. The defendant is not to be punished for that touching even if it were proved because it was not the subject of any charge. The purpose of the evidence was to place in context the particular acts relied upon by the Crown. The complainant's evidence was that the sexual touching was very frequent and continued, even after the 2005 indecent assault, until the defendant left the home three years later. She said the touching, which consisted mostly of the defendant putting his hand inside her pants, touching the outside of her vagina and penetrating her vagina with his finger, occurred even when other members of the family were sitting together in the living room. The complainant was a convincing witness who, I find, gave her evidence honestly. Her distress when doing so was obvious and genuine. However I am satisfied on the balance of probabilities that other touching did not occur after October 2005. I regard her account of events after that date as unlikely. I have trouble envisaging how such acts could go unnoticed over such a long period when committed in the presence of others. I must of course allow for the complainant's age, the relationship with the defendant, his authority over her and her natural reluctance to complain for many possible reasons, including a fear of not being believed again. However her conduct in permitting such acts after 2005 without any form of resistance or complaint, after having already strongly complained about another assault, is inconsistent with the sort of conduct that would reasonably be expected of a child who has been assaulted in that way. I consider that conclusion to accord with the jury's verdict in other respects. It attracts some mitigation.

I have a different view in respect to the allegations of touching before 2005. Even if some of the complainant's evidence may have been overstated, I am not persuaded that there was no other sexual touching, not the subject of charges, before 2005. I am not persuaded that I should give any sentencing discount on the basis that there was no other offence of any nature before then."

1. On the hearing of the appeal, the appellant contended that the learned trial judge erred by reversing the onus of proof in the passage quoted above. He argued that the Crown bore the burden of proving beyond reasonable doubt that uncharged acts occurred, and that an offender does not bear the burden of proving that uncharged acts did not occur. That argument was misconceived. In sentencing proceedings, in the absence of any concession or agreement, the burden of proof as to such matters lies upon the party making an assertion. If the Crown asserts that the offender offended on other occasions that were not the subject of charges, and that is not conceded, then the Crown bears the burden of proving its assertions beyond reasonable doubt. If the offender asserts that his crime was an isolated one, and that is not conceded, then he bears the burden of establishing that assertion on the balance of probabilities. In these respects, there is no strict dichotomy between aggravating factors and mitigating factors.
2. Thus in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, Gleeson CJ, Gaudron, Hayne and Callinan JJ said at [25]:

"References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it."

1. Olbrich was a drug importation case. The offender pleaded guilty. At his sentencing hearing, he contended that he was only a courier. That was not conceded. The sentencing judge rejected the contention, neither finding that the offender was a courier nor finding that he was a principal. There was a somewhat similar situation in this case. The appellant was sentenced without the learned trial judge either making a finding that he had committed uncharged acts or making a finding that he had committed none.
2. The relevant principles were considered by the High Court again in Weininger v The Queen (2003) 212 CLR 629. The appellant in that case had pleaded guilty to a charge of importing a commercial quantity of cocaine. He had no prior convictions. The sentencing judge was provided with a statement saying that he had told a police informant that he was involved in a continuing cocaine importation syndicate. The sentencing judge commented that he could therefore not "be treated as a first offender with the attendant leniency that that status usually attracts". The High Court held, by majority, that she had not erred in taking that approach. Gleeson CJ, McHugh, Gummow and Hayne JJ said the following at [23]-[24]:

"Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.

As was pointed out in Storey [[1998] 1 VR 359 at 372],, it is important to avoid introducing 'excessive subtlety and refinement' to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that." [Emphasis added.]

1. In this case, the learned trial judge rejected a submission that the crime found proven was an isolated one. He was entitled to do that. He went no further than that. He did not sentence on the basis that the appellant was guilty of other uncharged crimes. His rejection of the submission that the crime in question was an isolated one did not imply that he was satisfied that the appellant had committed other uncharged crimes. The appellant bore the onus of proving that the established indecent assault was an isolated incident. He was unsuccessful as to that. The learned trial judge made no error as to the burden of proof. Ground 1 of the grounds of appeal relating to the sentence therefore failed.

1. The appellant contended that his sentence of four months' imprisonment was manifestly excessive. The principles to be applied by an appellate court when considering such a contention are as stated by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 in the following passage at 504-505:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. The appellant's contentions were to the effect that his sentence was unreasonable or plainly unjust, even if no specific error in the sentencing process could be established.
2. The appellant was convicted of a serious indecent assault. The verdict of the jury indicated that it was satisfied beyond reasonable doubt that he touched the complainant on the vagina, though perhaps only for a very brief period. The learned trial judge made findings of fact that the touching occurred inside the complainant's pants, but that the appellant left his hand on her vagina for no more than a brief period, probably only seconds. There was no challenge to those findings. The complainant was 11 years old. The appellant was her mother's partner. He was in a parent-like role. The complainant was in his care. He was more than 40 years older than her. He was in a position of trust. He breached the trust placed in him by both the complainant and her mother.
3. The impact on the victim was significant. The learned trial judge made findings that the complainant understood the significance of what had occurred, understood what was wrong, was disturbed by the assault, and remained psychologically affected by it almost a decade later. It is clear from the evidence at the trial that the complainant must have found herself in a very unfortunate situation after the crime was committed as her mother appears to have disbelieved her complaint, and as the appellant returned to live as part of the household about two weeks after the crime was committed. The complainant had to go on living in the household with the man who had indecently assaulted her, without the support that she needed from her mother.
4. Some common mitigating factors were absent in this case. Whilst it cannot be said that there was a charge to which the appellant should have pleaded guilty, it can be said that he did not admit to the indecent assault that was found proven. There was no expression of remorse. The learned trial judge did not accept that the crime was an isolated one.
5. There was not a great deal for the learned trial judge to take into account by way of mitigating circumstances. The appellant had a good relationship with his children and grandchildren. He had no relevant prior convictions. He had an impressive employment history. His employment and prospects of future employment were likely to be damaged by his conviction and imprisonment. He had spent a lot of money defending the charge against him, with partial success.
6. There may have been little need for a sentence that would deter the appellant from further offending, but it was very appropriate to impose a sentence that should deter others from committing sexual crimes. In all the circumstances, a sentence of imprisonment could not be said to be unreasonable or plainly unjust.
7. We concluded that, in all the circumstances, the sentence was not manifestly excessive. We consider that it was somewhat heavy, but not too heavy. It was within the range of sentences that could reasonably have been imposed, but at the heavy end of that range. The final ground of appeal therefore failed.