R v L [1992] QCA 127

"K is the sole source of the evidence that the accused did that which is alleged. Her evidence is not corroborated unless there is firstly other evidence before you of a certain quality. The quality that that evidence must have is, first, that it is from a source separate and apart from and independent of K. Next, that it of its own strength confirms or tends to confirm that the offence charged was committed and by the accused".

His Honour then referred to the evidence of distress, made some adverse remarks of a general kind about the evidence of children and the reliability of complaints of sexual offences and returned to the subject of corroboration. He said, speaking of the evidence of distress:

"So that evidence cannot possibly be corroborative unless you are satisfied, on the evidence as a fact, that the distress exhibited, if there was any exhibited, which is also a fact for you, originated not from K's will but involuntarily, so that it can truly be said to be from a source independent of K.

Next, if you are satisfied about that, in order for the evidence to have any hope to be of corroborative quality, you must be satisfied that the cause for that distress was the accused's alleged offence and the fear which that originated, to induce that distress to the exclusion of other causes for the distress. Thirdly, you must be satisfied that that evidence of distress is probative of the accused having committed the offence alleged, that the offence was committed by the accused".

His Honour went on to say, in effect, that unless the jury were able to infer that the only cause for that distress, if there was any, was that the accused had committed the offence, they could not conclude that the girl's evidence was corroborated.

I cannot see how the Crown could have got any help from this. The argument the judge suggested was, with respect, circular. The jury could not have been satisfied that the distress was caused by the accused having committed the offence unless they were first satisfied that the accused had in fact committed the offence. Yet the supposed purpose of the corroboration was to help to prove that very thing.

If the jury applied the trial judge's directions, they could not have attached much significance, if any, to the evidence of a distressed condition in October 1990. The important evidence, as it seems to me, was that of the complainant who said that her father put his penis in her vagina a number of times and that of the appellant who denied having done so. It was legally permissible for the jury to convict the appellant if they were satisfied that he had committed the offence, even in the absence of corroboration.

The jury was warned in strong terms of the danger of convicting unless they were satisfied that there was corroboration. It is a difficult, although necessary, task for this Court to review the jury's work. The general thrust of the appellant's argument is I think that circumstances were proved which render the complainant's story, however truthful she may have appeared to the jury to be, improbable. Assessing the argument perhaps involves this Court's forming opinions about the typical reactions of sexually abused children (as to making complaints and the like) and judging this child's behaviour in accordance with those opinions. It need hardly be said that judges do not profess special expertise in relation to child abuse.

It is said on behalf of the appellant that, for a number of reasons, the conviction is unsafe. One is the bad relationship between the complainant and the appellant. She said that when the appellant left the matrimonial home (before the alleged offence) she thought the trouble between her parents was her father's fault, that he was the cause of the problems and that she did not like him at all; she qualified that by saying that she then liked him "a little bit". Later, it would appear her dislike went to the extent of writing to him, saying that he should go away and stop pestering her.

In contrast, the evidence was that she liked her "step-father" Christofis and thought him very nice, although very strict.

From this, one is to infer it appears that the complainant disliked her father enough to fabricate these complaints against him, perhaps with the idea of ensuring that she was able to stay with her mother and Christofis, rather than have to return to her father. On the other hand, there seems to have been no suggestion that there was a risk that the father would obtain custody, nor that the complainant was told, or thought, that he might.

It is I suppose possible that the story was fabricated, in order to deny the appellant access, rather than custody. One difficulty about the theory is that, as is pointed out in the reasons of the majority, the complaint did not arise until long after rights of access began; the appellant and his wife separated in October 1989 and there was a considerable amount of access had before April 1991. No particular event in 1991 was identified as likely to induce the making of a false complaint in April 1991.

The explanation the complainant gave for late complaint was a threat which her father made. It is not known in what terms or circumstances the child first complained; the Crown's attempt to introduce evidence on that subject was successfully resisted by the defence, at the trial.

There was also evidence of a conversation with a Mrs. Frost. This took two forms. Firstly, the complainant was asked in cross-examination whether she told Mrs. Frost that her father had "touched her on the boobs". The answer was yes and the evidence continued:

"But then you said that you thought it was an accident because you said he had given you a hug when you saw him; didn't you?--I didn't say that".

A little later, the complainant said she did not remember saying to Mrs. Frost that she thought it was an accident and admitted that when Mrs. Frost asked if anything more happened she said no.

It should also be mentioned that the complainant said that on one occasion there was blood on her underclothing as a result of the appellant's activities at his residence. Her mother noticed no such blood; there are possible explanations for this which are consistent with the appellant's innocence but others which are not.

When all is said and done, the only special reasons for doubting the complainant's story are that she did not like her father, nor enjoy his having access. To my mind, her not having complained until well after the event is not surprising if she was, in fact, threatened as she claims to have been.

Medical evidence was that the complainant had a stellar rupture of the hymen. The doctor said this could have resulted from activity other than sexual intercourse. He did not give any opinion as to whether he thought this likely. It is of interest to note the remark in "Understanding and Managing Child Sexual Abuse" (1990) edited by Professor R.K. Oates of Sydney University:

"There is a persistent myth that girls frequently sustain accidental injury to their genitalia including the hymen by falling, by playing sport and that accidents of this kind, though not remembered or reported, are a likely cause of hymenal tears even though a girl claims she has been sexually abused" (135).

The passage quoted is from a chapter written by Dr. Grunseit, the Chairman of the New South Wales Government Child Protection Council. To put the matter at the lowest, it was of assistance to the Crown case that the medical evidence was consistent with a substantial object's having been thrust into the child's vagina.

The Court can hardly hold that the girl's saying that, even before her father had intercourse with her, she did not like him much is a strong circumstance rendering a fabrication of the complaint of incest likely. Nor, in my opinion, could one ascribe a high degree of probability to the theory that, having unwillingly submitted to the appellant's access to her for well over a year, the complainant tired of it and decided to concoct the tale. One reason for thinking this not very likely is that on the evidence the complainant was in April 1991 to be taken to live in another State which, whether that was the intention or not, would presumably have reduced opportunities for the appellant to have access to her.

It is sometimes said that children are quite likely to make up these sorts of complaints, but when the matter has been investigated that proposition is commonly not supported. Some recent work is referred in Spencer and Flin "The Evidence of Children" at pp.255, 259, 267 and 269. Unfortunately, like so many disciplines, this area of knowledge has been affected by suspicion attaching to views expressed by people on one side of the argument or the other who may have a financial interest in establishing a reputation as suitable expert witnesses. But, as a matter of common experience, it is surely an improbable assertion that children of 10 or 11 years of age are especially likely to invent elaborate accusations against others and adhere steadfastly to them. Children, like adults, commonly lie, but the child's inferior ability to keep to a false story under rigorous questioning is well known. Their lack of skill in keeping to the details of a story, when pressed, is simply a product of their state of intellectual development and limited experience in verbal contests. Here, the complainant was put through quite a battery of questioning, not all of it easy to respond to. Some of the questions in cross-examination were very long indeed and others, although of medium length, by no means so framed as to put the child at her ease. To take but one example:

"The more time that went on the more difficult it became. I will put that in a different way. Even after you separated the problems were not over because you considered that your Dad was pestering you all the time or pestering the family? Am I right in saying that? Actually it felt worse after the separation than before the separation; didn't it?---I don't know".

The child was also cross-examined at the committal.

It must be kept in mind that the jury had the advantage of seeing and hearing the child questioned by a police officer on the police video, as well as seeing and hearing the child questioned at some length in court and, again, had the advantage of seeing and hearing the evidence of the appellant. I have studied the child's complaint as shown on the police video (Exhibit 1) and have seen nothing in that to oblige a jury to doubt the general truth of the allegations. The child appears to be shy and embarrassed, neither bold nor glib; the police officer conducted the interview with commendable care.

With absolutely no encouragement to do so from the trial judge, the jury accepted the child's story and disbelieved the appellant.

To return to the general question of credibility, Spencer and Flin say at p.269:

"... our general conclusions about false complaints in sex cases are these. First, there is no doubt that adults sometimes do make false allegations of sexual crimes ... and given the severity of the penalties for such offences these cases tend to retain a certain notoriety; however, the incidence of such false allegations is now thought to be considerably lower than was once believed ... Secondly, children have also been known to make false sexual complaints ... and Goodwin (1982) describes a number of false allegations of incest; however, the most recent scientific evidence shows that a significant proportion of false allegations are in fact made by adults on behalf of children (e.g., in custody disputes), and that false complaints made by children are very rare. This is a consistent finding which has now been replicated across several substantial samples of data. Thirdly, when children do make a false report it is generally for identifiable reasons ... Fourthly, and ironically, the major problem is not the risk of false allegations but is the significant rate of false retractions which are much more common and if undetected can be potentially dangerous for the children ...".

For the purposes of determining the present case, it would, I think, be unorthodox for the Court to rely upon works of authority in an effort to derive an idea of the likelihood of this child's having invented and adhered to the story she has told against the appellant; we have to rely on our own views. It is sometimes suggested that complaints of this kind by children are especially likely to be false. That is, plainly, not an opinion as to the law; it is not one which I hold.

As the majority point out, it is possible that what the Crown alleged was incorrect; few decisions of any court are free of that possibility. Here, the jury was satisfied of the truth of what was said against the appellant. I am far from convinced that there is any particular reason to doubt the truth of the jury's verdict. There being evidence reasonably capable of supporting a conviction and no plain deficiency in the Crown's case, the Court, merely on reading the record, will not commonly decide that a conviction is unsafe. The detection of a possible motive for lying, such as that the complainant child did not like the allegedly incestuous father having access to her and did not like him much even before the alleged incidents cannot, in my respectful opinion, justify setting the conviction aside. It would not be astonishing to find that an incestuous father has had a bad relationship with his child, even before committing incest on her; after incest, one would expect the child to express dislike.

PROPOSED MINUTE OF ORDER: The appeal against conviction is dismissed.

CATCHWORDS: CRIMINAL LAW - INDECENT DEALING - Appellant claimed evidence of complainant's distressed condition wrongly admitted as corroboration - whether distressed condition eight months after alleged offence was relevant - whether any causal connection - whether other explanation for condition - appeal allowed.

Solicitors: Director of Prosecutions for the appellant