COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Davies(2) and Wilcox(1) JJ

CWDS
  Evidence Act 1971, ss.64, 76F
  Oaths and Affirmations Act 1984, s.15
  Criminal Justice Act 1988 (U.K.), s.34
  R v Brasier (1779) 1 Leach 199; 168 ER 202
  Omichund v Barker (1744) Willes 538; 125 ER 1310
  Attorney-General v Bradlaugh (1885) 14 QBD 667
  R. v Schlaefer (1992) 57 SASR 423 at 429-437
  R. v Taylor (1790) Peake 15; 170 ER 62
  Cheers v Porter (1931) 46 CLR 521
  Da Costa v The Queen (1968) 118 CLR 186
  Harriman v The Queen (1989) 167 CLR 590
  S v The Queen (1989) 168 CLR 266
  R. v Beserick (unreported, NSW Court of Criminal Appeal, 16 February 1993)
  R. v Rogerson and Paltos (unreported, NSW Court of Criminal Appeal, 16
December 1992)
  Chidiac v The Queen (1991) 171 CLR 432
  R. v Brown (1977) Qd R 220
  R. v Domonic (1984) 14 A Crim 4 418
  R. v Ball (1911) AC 47
  Paton v The Queen (unreported, Wilcox, Miles and von Doussa JJ, 22 July
1992)
  Chamberlain v The Queen (1983) 153 CLR 521
  Morris v The Queen (1987) 163 CLR 454
  Kilby v The Queen (1973) 129 CLR 460
  Smith v Commonwealth Life Assurance Society Limited (1935) 35 SR (NSW) 552
  K v The Queen (1992) 34 FCR 227

HRNG
CANBERRA, 31 March and 1 April 1993
#DATE 15:4:1993
  Counsel for Appellant:        Mr J.H. Brewster
  Solicitors for Appellant:     Legal Aid Office (A.C.T.)
  Counsel for Respondent:       Mr J. Ibbotson
  Solicitors for Respondent:    Director of Public Prosecutions (A.C.T.)

ORDER
THE COURT ORDERS THAT:
  1.  The appeal is allowed and the conviction set aside.
Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
GALLOP and WILCOX JJ  This is an appeal against conviction and sentence for an
offence of committing an act of indecency upon a person under the age of 10
years imposed in the Supreme Court of the Australian Capital Territory on 1
December 1992.
2.  On 23 November 1992 the appellant was arraigned on an indictment charging
him with one offence that on 30 April 1990 at Canberra in the Australian
Capital Territory he engaged in sexual intercourse with a person under the age
of 10 years, namely 8 years, and an alternative count of committing an act of
indecency upon the same person under the age of 10 years, namely 8 years.  On
his arraignment the appellant pleaded not guilty to both counts.  On 24
November the jury returned verdicts of not guilty on the count of engaging in
sexual intercourse with a person under the age of 10 years, and guilty of the
alternative count of committing an act of indecency upon a person under the
age of 10 years.
3.  Following the jury's verdict the trial judge heard evidence relative to
sentence on 25 November and submissions on 1 December 1992. Having heard
submissions on 1 December 1992 he sentenced the appellant to a term of
imprisonment of two and a half years and fixed a non-parole period of 9
months, both periods to date from 24 November 1992.
4.  The grounds of appeal as set out in the Notice of Appeal are:
    "2.   That the verdict was unsafe and unsatisfactory.
     3.   That the Learned Trial Judge was in error in admitting
          evidence of prior incidents of a sexual nature between the
          accused and the complainant.
     4.   That the Learned Trial Judge was in error in allowing the
          evidence of the complainant to be given on oath.
     5.   That the Learned Trial Judge was in error in sentencing the
          accused in using the decision of This Honourable Court in
          the matter of Wilks v. R (unreported decision dated 6
          November 1992) as a 'benchmark' for this type of case.
     6.   That the sentence was in the circumstances manifestly
          excessive."
5.  Grounds 5 and 6 were not pressed on the hearing of the appeal.
6.  Counsel for the appellant argued Ground 4 first, namely that the trial
judge was in error in allowing the evidence of the complainant to be given on
oath.  At the commencement of the trial, counsel for the appellant raised with
the trial judge whether it was appropriate for the complainant to give
evidence on oath or not, and whether any enquiry as to that matter should be
heard in the absence of the jury.  The trial judge did embark upon an enquiry
and asked the complainant a series of questions before she gave evidence.  We
set out those questions and her answers.
    HIS HONOUR: Now, are you (the complainant's full name)?
    WITNESS:          Yes.
    HIS HONOUR: Right, thank you.  Now, where do you live?
    WITNESS:          (She gave her full residential address).
    HIS HONOUR: Right.  Now, I am going to ask you a few questions
    about yourself now and then later on somebody else might ask you
    some questions about something else.  But I am just asking you
    about, do you understand that?  Where do you go to school?
    WITNESS:          At Latham Primary School.
    HIS HONOUR: Right.  What class are you in?
    WITNESS:          Grade 5.
    HIS HONOUR: Right.  How old are you?
    WITNESS:          Ten.
    HIS HONOUR: And has anybody told you the date of your birth?
    WITNESS:          Yes.
    HIS HONOUR: When was that?
    WITNESS:          3 April.
    HIS HONOUR: So that is when you have your birthday, is it?
    WITNESS:          Yes.
    HIS HONOUR: Do you know what year it was you born in?
    WITNESS:          1988 I think.
    HIS HONOUR: Now, apart from going to school do you go to Sunday
    school at church or anything like that?
    WITNESS:          No, I do sometimes with my friend but not
    usually.
    HIS HONOUR: Which one is that?  Which church or Sunday school do
    you go to?
    WITNESS:          The one up in Kippax.
    HIS HONOUR: Right.
    WITNESS:          Somewhere around near Kippax.
    HIS HONOUR: Has it got a name?
    WITNESS:          I do not know the name.
    HIS HONOUR: At any rate, do you know some people here would like
    to ask you some questions about something that happened a while
    ago?
    WITNESS:          Yes.
    HIS HONOUR: Right.  I will stop shouting.  If you are asked
    questions about what happened, what would you do?  Would you
    answer truthfully?
    WITNESS:          Yes.
    HIS HONOUR: Do you know how important it is to answer truthfully?
    WITNESS:          Yes.
    HIS HONOUR: What do you think would happen if you did not answer
    truthfully?
    WITNESS:          I would be telling a lie.
    HIS HONOUR: Would there be anything wrong with that?
    WITNESS:          Yes.
    HIS HONOUR: Why is that?
    WITNESS:          You would not be getting the information you
    want.
    HIS HONOUR: That is true.  All right.  This is a court case.  Have
    you ever been in a court before?
    WITNESS:          Yes.
    HIS HONOUR: Have you.  You were in court before about these same
    things that happened, were you?
    WITNESS:          Yes.
    HIS HONOUR: And that is what you are going to tell us about?  If
    you were given the Bible to take an oath, do you think you would
    know what was involved in that?
    WITNESS:          Yes, telling the truth.
    HIS HONOUR: That is right.  Have you seen people take the Bible
    before to tell truth?
    WITNESS:          Yes.
    HIS HONOUR: Have you heard what they say?
    WITNESS:          Yes.
    HIS HONOUR: Do you know the sort of thing you would be asked to
    say about telling the truth?
    WITNESS:          Yes.
    HIS HONOUR: Would that help you tell the truth?
    WITNESS:          Yes.
    HIS HONOUR: All right.  Well I think I will have the witness
    sworn.  All right, now, (name), we are going to ask you to go
    outside again and we will ask you to come back in a bit later,
    probably about a quarter of an hour later, and there will probably
    be some more questions then, do you understand that?
    WITNESS:          Yes."
7.  In answer to further questioning from his Honour the child indicated that
she would prefer to give evidence in camera.  Members of the public were
excluded, the complainant was then sworn in the ordinary way as a witness and
gave her evidence.  His Honour did not indicate what assessment he had made of
the complainant as a person competent to take the oath.  It is reasonable to
assume, however, that the girl demonstrated to his Honour sufficient
intelligence to understand the duty to speak the truth.
8.  Section 64 of the Evidence Act 1971 provides:
          "64.  (1)  Where the evidence of a child who has not
    attained the age of fourteen years is required in a proceeding,
    the court may receive that evidence without administering an oath
    or requiring an affirmation or declaration and, subject to the
    next succeeding subsection, without any formality.
          (2)  The court shall, before receiving evidence in pursuance
    of the last preceding subsection, explain, or cause it to be
    explained, to the child that he is required to tell truthfully
    what he knows about the matter to which his evidence relates.
          (3)  Evidence admitted in pursuance of subsection (1) of
    this section on the trial of a person charged with an offence
    shall be disregarded unless it is corroborated by other evidence
    implicating that person."
9.  It is relevant also to note s.76F of the Evidence Act, which is in the
following terms:
          "76F.  (1)  Any rule of law or practice requiring the
    corroboration of evidence or requiring the judge to give a warning
    to the jury in criminal proceedings to the effect that it is
    unsafe to convict a person on uncorroborated evidence is abolished
    in so far as the rule applies to or in relation to evidence given
    by the complainant in thetrial of a person for a prescribed sexual
    offence.
          (2)  Nothing in this section shall affect the right of the
    judge in prescribed sexual offence proceedings to comment on any
    evidence that may be unreliable but the judge shall not, in such
    proceedings, give a warning to the jury to the effect that it is
    unsafe to convict the accused person on the uncorroborated
    evidence of the complainant.
          (3)  Nothing in this section affects the operation of any
    rule of law or practice which requires -
    (a)   a judge, on the trial of a person for a sexual offence
          alleged to have been committed before the commencement of
          this section, to give the jury a warning as referred to in
          subsection (1); or
    (b)   a judge, on the trial of any person, to give the jury a
          warning to the effect that it is unsafe to convict a person
          on the uncorroborated sworn evidence of a child.
          (4)  Nothing in this section affects the operation of
    subsection 64(3)."
10.  The submission on behalf of the appellant was that if the complainant's
evidence had not been given on oath it would have to have been disregarded
pursuant to s.64(3) as it was uncorroborated.  It was common ground on the
hearing of the appeal that there was no corroboration of the complainant's
evidence.
11.  From the complainant's answers to the trial judge it is clear that she
did not understand the nature of an oath.  She was accordingly incompetent to
take an oath.
12.  Section 15 of the Oaths and Affirmations Act 1984 (ACT) provides:
          "15.  Where a person required or permitted by law to take an
    oath -
    (a)   appears to a person before whom an oath may be taken to be
          incompetent to take an oath;
    (b)   is objected to, on grounds a person before whom an oath may
          be taken considers reasonable, as incompetent to take an
          oath; or
    (c)   wishes to take an oath in a form and manner permitted under
          section 21, but it is not, in the opinion of the person
          before whom an oath may be taken, reasonably practicable
          without inconvenience or delay for him to take that oath at
          the appropriate time and place,
    the person before whom an oath may be taken may require that
    first-mentioned person to make an affirmation instead of taking an
    oath."
13.  It is clear law that a child of tender years cannot give evidence on oath
unless it appears that he or she has sufficient knowledge of the nature and
consequences of an oath (R v Brasier (1779) 1 Leach 199; 168 ER 202; Omichund
v Barker (1744) Willes 538; 125 ER 1310; Attorney-General v Bradlaugh (1885)
14 QBD 667).  The cases are collated in the judgment of Matheson J in R. v.
Schlaefer (1992) 57 SASR 423 at 429-437.
14.  It has been held that it is proper to ask a witness, whose competency to
take an oath is in question, whether he believes in God, in the obligation of
an oath, in a future state of rewards and punishments (R v Taylor (1790) Peake
15; 170 ER 62).
15.  In Cheers v. Porter (1931) 46 CLR 521 it was held in relation to s.13 of
the Oaths Act 1900 (NSW), a comparable provision to s.15 of the Oaths Act 1984
(ACT), that it authorises affirmations when the incompetence of the witness to
take an oath does not arise "from immaturity or from unripeness or disorder of
the intelligence".
16.  Hence, his Honour may have admitted the evidence upon affirmation
pursuant to s.15 of the Oaths and Affirmations Act 1984, but it would seem
that he did not have the terms of the section in mind when he decided that the
child could be sworn as a witness.  If the evidence had been given by the
child on affirmation, s.64(3) of the Evidence Act 1971 would not have operated
so as to cause the child's evidence to be disregarded.
17.  In any event, it is probably now too late to contest the admissibility of
the child's evidence based upon her lack of understanding of the nature of an
oath.  In Da Costa v. The Queen (1968) 118 CLR 186, dealing with a similar
argument, Windeyer J doubted whether the point could be taken for the first
time after verdict and sentence.  He said that after the trial has concluded,
no objection having been taken to the admissibility of evidence at the trial,
it may be too late to say that the receipt of the evidence was defective
because of the witnesses (two Aborigines) being sworn when they did not
understand the nature of an oath.
18.  The ground of appeal directed to the operation of s.64(3) of the Evidence
Act 1971 in relation to the child's evidence because she did not understand
the nature of an oath and yet was sworn as a witness in the ordinary way must
fail.
19.  The next ground argued was Ground 3, namely that the trial judge was in
error in admitting evidence of prior incidents of a sexual nature between the
accused and the complainant.  It was submitted on behalf of the appellant that
the evidence was not admissible because the appellant was not charged in
relation to those incidents, no doubt because they could not be
particularised.  The thrust of the submission was that charges should not be
brought that cannot be properly particularised.  Such charges make it
impossible to found a defence of alibi or properly to test the complainant.
20.  Counsel referred to Harriman v. The Queen (1989) 167 CLR 590 and to the
dicta of Brennan J at 593 and Dawson J at 599 to the effect that evidence of
prior similar acts should not be admitted unless it is highly probative.
21.  It is now well established law that in a case of a sexual nature,
evidence of prior sexual behaviour not charged is admissible to show the
relationship that existed between the accused and the complainant as
background to the circumstances in which the charged offence was committed
(see Harriman v. The Queen, supra, S v. The Queen (1989) 168 CLR 266; R. v.
Beserick (unreported decision, New South Wales Court of Criminal Appeal,
delivered 16 February 1993; R. v. Rogerson and Paltos (unreported decision,
New South Wales Court of Criminal Appeal, delivered 16 December 1992).
22.  In our view the trial judge was correct in admitting the evidence of
prior sexual behaviour and properly directed the jury as to the use of that
evidence.
23.  The most significant issue raised by the appeal is Ground 2, that the
verdict was unsafe and unsatisfactory.  This ground must be approached with
caution.  As Mason CJ pointed out in Chidiac v The Queen (1991) 171 CLR 432 at
443, it is not the function of an appeal court to re-try the case.  The
verdict is the responsibility of the jury, which enjoys the considerable
advantage of seeing and hearing the witnesses. Mason CJ went on, at 444, to
describe an appeal court's function as being "to determine whether there is a
significant possibility that an innocent person has been convicted because the
evidence did not establish guilt to the requisite standard of proof".  His
Honour stipulated that "the court must necessarily recognise that issues of
credibility and reliability of oral testimony are matters for the jury";
rarely will a conviction be set aside "as being unsafe because the evidence of
a vital Crown witness lacked reliability or credibility". He went on:
    "Nonetheless, occasions do arise when a jury proceeds to a conviction
    when the Crown case rests upon oral testimony which is so unreliable or
    wanting in credibility that no jury, acting reasonably, could be
    satisfied of the accused's guilt to the required degree.  Then the
    appellate court must discharge its responsibility to set aside the
    conviction as one which is unsafe.  When that happens the court is not
    substituting its view of credibility for that of the jury; the court is
    giving effect to its conclusion that, notwithstanding the jury's
    apparent willingness to accept the particular witness or witnesses as
    credible, the evidence was, having regard to its nature and quality,
    insufficient to satisfy a reasonable jury of the accused's guilt
    according to the criminal standard of proof."
24.  Mason CJ made special reference to "(c)onvictions based upon certain
categories of testimony which the law has traditionally regarded with great
caution".  Those categories include "convictions based upon ... the
uncorroborated evidence of sexual complaints".  The conviction entered in the
present case is, of course, such a conviction; but with the additional feature
that the complainant was only eight years old at the time of the alleged
offence.  In relation to these categories Mason CJ commented, at 444-485:
    "The instances in which this jurisdiction has been exercised are, of
    course, cases in which there was sufficient evidence to go to a jury to
    entitle it to bring in a verdict of guilty where nonetheless the quality
    of the evidence was not such as, in the opinion of the appellate court,
    to establish the guilt of the accused beyond reasonable doubt, after
    taking into account the jury's assessment of the credibility of the
    witnesses based on the advantage which it had in seeing and hearing
    them."
25.  The other members of the Court, in Chidiac, expressed views on matters of
principle consonant with those of the Chief Justice. There is no need for us
to set them out.  But it is useful to mention the observation of McHugh J, at
462, concerning the attitude which an appeal court should take to the fact of
the jury's verdict:
    "In exercising this extraordinary jurisdiction, the Court of Criminal
    Appeal has to be mindful of the great advantage which a jury has in
    seeing and hearing the witnesses.  It must act on that view of the
    evidence which is most consistent with the conviction except to the
    extent that it is satisfied a reasonable jury would not have so acted.
    But unlike an appeal against a jury's verdict in a civil action, the
    Court is not bound to act upon that view of the credibility of the
    witnesses which is most consistent with the verdict of the jury.  In an
    appropriate case, the Court is entitled to hold that, despite the jury's
    verdict, a reasonable jury would not have accepted the evidence of a
    particular witness or witnesses to the extent necessary to be convinced
    beyond reasonable doubt of the guilt of the accused.  Thus, in Ralph and
    George (1988) 37 A Crim R 202, the Court of Criminal Appeal set aside
    two convictions which depended upon the uncorroborated evidence of a
    convicted drug dealer who was an admitted liar and perjurer.  The Court
    was of the opinion that, although the evidence, if accepted, was legally
    sufficient to convict the appellants, the nature and quality of that
    evidence made it unsafe or unsatisfactory to allow the convictions to
    stand."
26.  In the present case, there was much common ground in the accounts of the
events of 30 April 1990 given by the complainant and the appellant.  But they
were in direct conflict on the critical question: whether the appellant
touched the complainant in the region of her vagina.  The complainant's
account of that matter was not inherently improbable; and it is obvious from
their verdict that the jury preferred that account to the appellant's denial.
The complainant was apparently an impressive witness.
27.  We have given these factors great weight in our consideration of Ground
2.  But, notwithstanding their force, we have reached the conclusion that the
verdict is unsafe and unsatisfactory. There are important inconsistencies in
the complainant's evidence and several puzzling aspects of the surrounding
circumstances.
28.  During the course of his submissions, counsel for the appellant
identified seven alleged inconsistencies in the complainant's evidence, as
compared with what she described on an earlier occasion. An eighth matter
emerged in discussion.  Some of the so-called inconsistencies are matters of
no consequence, the sort of minor variation in a witness' accounts of an
incident that usually arises; and in the absence of which a court might wonder
whether the witness had learned her/his evidence by rote.  Some of the claimed
inconsistencies may have been merely verbal mannerisms.  An example is the
complainant's use of the words "all the time" to describe to the investigating
police officer the frequency of the appellant's intrusion into the boys'
bedroom when she was changing; whereas she said at the trial that this
happened "a few times".  People often use the phrase "all the time" to refer
to a recurring phenomenon, without intending to convey that it occurred on
every available occasion.  The same comment applies to the complainant's
statement to the police officer that she had "always" taken all her clothes
off when he entered the room; as against her evidence that sometimes she had
her leotard on and sometimes just her undies.
29.  There were three non-verbal "inconsistencies" about the incidents which
allegedly occurred before 30 April.  At the trial the complainant described
how she used to change in the bedroom occupied by the appellant's two small
sons.  She said that she was unable to shut the bedroom door because there was
a "cot kind of thing" in the way, which she had to climb over.  This statement
leaves a gap in the complainant's evidence.  She did not say that the
appellant climbed over the cot, if that is what it was; or otherwise indicate
how he succeeded in reaching her while she was changing.  But the statement
did more than create a gap in the evidence.  The complainant's account of a
"cot" blocking the closing of the door, given in evidence in chief and
repeated in cross-examination, conflicted with evidence she gave in the
Magistrate's Court:
    "But there were lots of other kids around, weren't there, (name)?
    Yes, all of the kids were playing in the toy room while the door was
    shut, and I was getting changed in the boys' room with the door shut.
    All right, so you used to always shut the door, as well, did you?  Is
    that right?
    Yes".
30.  The second non-verbal "inconsistency" concerns the way the appellant used
to pick up the complainant.  It appears that, at both the committal hearing
and the trial, the complainant used a doll to demonstrate the appellant's
action.  At the trial she referred to only one form of handling.  It was
described by counsel variously as holding her with "one hand round your back
as much as one would a baby" and "(h)e would hold you in the crook of his
arm".  In the Magistrate's Court the complainant referred to two methods of
handling her.  One method was the appellant holding her round the back,
apparently with one arm.  She agreed with a description of the other method
that "both his hands were under your armpits, and that she was lifted straight
up with her legs dangling down".  She said the appellant put her down "when he
had finished feeling me".
31.  We put no weight on this point.  The description given at the trial is
consistent with one of the two methods described at the committal hearing.  It
is true that, at the trial, the complainant made no reference to the other
method.  But this does not amount to a conflict of evidence.  It merely means
that the trial evidence may have been incomplete.  In any event, the
difference between the two methods may easily be exaggerated.  The complainant
stated at the committal proceeding that the appellant touched her genital area
on these occasions.  If so, he could not have continued throughout to hold her
with both hands under her armpits.  At some stage he  must have shifted her to
a cradling position.
32.  The remaining pre-April 30 "inconsistency" is unclear in the appeal
materials.  During the course of cross-examination at the trial, the
complainant was asked this question:
    "Again, I suggest you were asked, in the Magistrate's Court, you were
    asked about whether a finger was put in at his house and at your house,
    and you said, 'Does that mean that putting his finger inside you was at
    your place or just touching you on the outside was at your place?'  And
    you answered, I suggest, 'He just touched me on the outside at my
    place.'  That wasn't right?---No".
33.  On the face of it, by this answer the complainant conceded that she
falsely told the magistrate that the touching that took place in the
appellant's home (as distinct from any touching in her home on 30 April) was
confined to "the outside".  But it is clear that, in another part of her
committal hearing evidence, the complainant claimed that, on one or more of
these occasions, the appellant digitally penetrated her vagina.  There is
nothing in this point.
34.  The three remaining "inconsistencies" arise out of the complainant's
account of the incident of 30 April.  At the trial the complainant said that
the appellant "came in and said goodnight to us and turned the light off".
She was referring to the bedroom occupied by herself and her younger sister.
The complainant added that "the hall light was still on and we read a little
bit".  They were able to do this "because the hall light shone right into the
room".  She said that the appellant came back into the room and said goodnight
again.  According to her trial evidence, the appellant then "took me out and
said that I could read the book to him on the couch".  She got out of bed and
followed the appellant to the lounge room.  He lay on the couch.  She lay
facing him and read the book aloud.
35.  There are three apparent discrepancies between this evidence and the
complainant's earlier accounts of the same events.  The first relates to
lighting.  At the committal proceedings, the complainant said that she and her
sister read "for about 15 minutes".  We are unclear whether this time was
measured from the time her parents left the house or the time the appellant
arrived.  It does not matter.  The complainant said that the appellant then
switched the hall light off.  Her sister asked if she could have it on; but
the appellant replied:  "No, you have to go to sleep now".  At the trial the
complainant was asked:  "That's not right, either?"  She replied:  "No".
36.  Despite the complainant's concession, it is not clear that this evidence
involves an inconsistency.  It is possible that the appellant switched off the
hall light, and refused to allow it back on, immediately before he made the
suggestion that the complainant should come to the lounge room to read.  The
trial evidence may have been merely incomplete.
37.  The second matter is a true inconsistency.  At the committal hearing the
complainant was asked whether the appellant picked her up or she walked to the
lounge room.  She replied:  "He picked me out of bed". At the trial she agreed
that this was wrong.
38.  Finally, a more complicated matter.  As mentioned, the complainant said
at the trial that she lay on the couch facing the appellant.  She was in that
position when, according to her, the appellant touched her vaginal area.  At
least on one view of the matter, she earlier gave two different accounts of
her position at that time. During the course of her cross-examination the
complainant's mother was asked the terms of the complainant's conversation
with her on the morning after the alleged incident.  She replied that the
complainant told her that the appellant -
    "got me out of bed and he took me into the lounge room and told me that
    he wanted me to read him a book and he sat me down on his knee on the
    couch and he told me to pull my knickers down and I told him I wasn't
    going to and he said that he would tell me (that is, the mother) that
    she'd been a bad girl if she didn't do it.  So he did it anyway".
The complainant's mother added that the complainant told her "he rubbed the
front of her".
39.  At the trial the complainant was asked about the account of the incident
she gave to a police officer.  It was put to her that the police officer
asked:  "Where were you sitting?" and that she replied: "On the couch".  It
was then suggested that she was asked:  "Where was Mr Martin sitting?" and
that she replied:  "On the couch next to me". She said that this account was
not right.
40.  As we have indicated, we are not troubled by all the inconsistencies
mentioned by counsel.  Some inconsistencies of recollection are to be
expected.  It seems to us that there is a proper distinction between evidence
which depends upon a witness' analysis of a larger mosaic of facts (for
example, in this case, whether the appellant "always" entered the bed room as
she was changing) and evidence concerning an incident in which she was
involved.  Many witnesses, perhaps especially small children, will vividly
remember an incident but be inconsistent in analysis.  The more significant
the incident to the witness, the more likely that the witness will remember
it.  According to her evidence, the complainant was very aware of the
appellant's handling of her, both on 30 April and the earlier occasions, and
resented that treatment.  So one would expect a clear memory of the incidents,
even in an eight year old.  For these reasons we are troubled by the
complainant's inconsistent statements about the shutting of the door on the
earlier occasions and the last two matters mentioned in connection with the 30
April incident: whether she was picked out of bed, or got out and walked, and
the positions of herself and the appellant during the reading.
41.  In considering the weight to be given to these inconsistencies, we have
to remember that the complainant's account of the appellant's conduct is
uncorroborated.  But, important as they are, it is not only the complainant's
inconsistencies that cause us to consider the verdict unsafe and
unsatisfactory.  There are several puzzling and unexplained circumstances.
Most of them arise out of the evidence of the complainant's mother.
42.  In considering the evidence of the complainant's mother, it is relevant
to know that, at the date of the trial, she was Director of Occupational
Therapy at a large hospital in the Australian Capital Territory and a senior
counsellor in its Psychiatric Department.  The evidence does not disclose
whether the complainant's mother held these positions during 1989 and 1990.
But it does disclose that she worked at the hospital at that time and that she
is a trained occupational therapist and psychiatric counsellor.  She attended
a course concerning child sexual abuse in late 1988.  It is reasonable to
infer that a person with this background would have been sensitive to the
subject of child sexual abuse and aware of its insidious and harmful nature.
43.  The complainant's mother gave evidence that Mrs Martin, the wife of the
appellant, regularly cared for the complainant and her sister.  Mrs Martin was
an accredited child minder.  The complainant's mother knew that Mr Martin
worked shift-work and was often at home while the girls were being minded
after school, including on occasions when the complainant was changing for
ballet.  The complainant's mother said that, before April 1989, when she
commenced to work at the hospital, "(The complainant) had already indicated
some alleged interference". Between April and October the complainant's mother
worked hours that enabled her to be home when it was time for the complainant
to change for ballet.  During this period there was no complaint about
interference.  But, in about October 1989, the mother's work hours were
varied.  Once again, the complainant had to change for ballet at the Martin's
home.  According to the complainant's mother, her complaints resumed.  The
complainant's mother said that the complainant told her "Mr Martin is still
touching my fanny".  She gave evidence of a behavioural problem.  As the
school holidays approached, the complainant "became increasingly agitated,
saying that she didn't want to go back there".  At one stage in her evidence,
the complainant's mother said that, in the period shortly before April 1990,
the complainant said nothing about interference but "behaved atrociously".  At
another point in her evidence, she agreed that she had told a police officer
that, in the four to six months until about April 1990, "(The complainant)
started talking about it again with frequency, perhaps once a week or more".
She attributed to the complainant the words:  "I hate going there, Mummy,
because Mr Martin plays with my fanny" and "I wish Mr Martin wouldn't play
with my fanny".  The complainant's mother said she discussed the complainant's
behaviour, and her dislike of going to the Martins, with her husband.  But she
said:  "I don't think we actually discussed any alleged sexual interference".
44.  If this evidence is true, it is difficult to understand why the
complainant's mother continued to send the complainant to the Martins' home.
When she was asked about this, the complainant's mother replied that the
family had few friends in Canberra.  They moved to Canberra only in mid-1987.
We accept that it might not have been easy to find an alternative
child-minder, although we note that the complainant's mother found an
alternative in one day immediately after 30 April; but we have difficulty in
believing that, whatever the problems about alternative minding, a mother
trained in psychiatric counselling and child sexual abuse would be prepared to
accept the risk of continued abuse of her young daughter.  Upon the
complainant's mother's version of the matter, the complainant could hardly
have been more explicit about Mr Martin's conduct.
45.  Another puzzling aspect of the mother's evidence is that she said nothing
to her husband about Mr Martin's alleged conduct, notwithstanding that they
discussed the complainant's dislike of returning to his home.  We would have
thought it impossible to discuss the problem without adverting to its cause.
The omission, which is unexplained, causes us to wonder whether the
complainant did make the statements which the complainant's mother claims.
46.  The evidence of the complainant's mother concerning events after 30 April
also creates difficulties.  She said that she first learned of the incident on
the following morning, when she went to the breakfast bar where the
complainant was sitting.  The complainant's mother said that she was going to
ask how things turned out, expecting her to reply that "everything was fine";
but the complainant cried and made the statement set out above.  According to
the complainant's mother, she was "absolutely shocked".  She spoke to her
husband about the matter before he went to work.
47.  The complainant's father gave a different account of learning about the
allegations.  He said that on the morning of 1 May the complainant told him
something about what had happened the previous night.  He went to the ensuite
and spoke to his wife, who was showering at the time.
48.  However the complainant's mother learned about the events of 30 April,
after that time she had, according to her evidence, "absolutely no doubt at
all" about Mr Martin's activities.  Yet she did not confront Mr Martin with
the complainant's allegations or report him to the police.  On the morning of
1 May, she took both her daughters to Mrs Martin to be minded, presumably
until it was time for them to go to school.  During the day the complainant's
mother made arrangements for an alternative child minder.  That evening she
went to the Martins' house to inform Mrs Martin that the girls would not be
coming again; but, when asked the reason, she replied that it was better for
them to be with girls their own age.
49.  After 1 May the complainant's mother maintained social contact with both
Mr and Mrs Martin.  The complainant's father left the home on 13 March, at the
commencement of what proved to be only a temporary separation arising out of
marital difficulties between himself and his wife.  The complainant's mother
asked Mr Martin to change the locks on the house doors.  She gave him a spare
key to the house.  The complainant's mother had tea with Mr and Mrs Martin
from time to time and they reciprocated.  On three occasions "at the most",
according to the complainant's mother, the two families (apparently without
the complainant's father) went out for dinner together.  In July the
complainant's mother took the children away for holidays.  She asked Mr Martin
to feed the household pets.  Then, also in July and under circumstances wholly
unexplained by the evidence, the complainant's mother contacted the Family Day
Care organisation.  Mrs Martin's child minder accreditation was withdrawn, or
perhaps suspended.  The complainant's mother was contacted by the Sexual
Assault Unit of the Federal Police.  An investigation ensued and criminal
proceedings commenced.
50.  The complainant's mother is not on trial.  We do not wish to be
unnecessarily critical of her actions.  Her relationship with Mr and Mrs
Martin and her sensitivity towards the complainant are not matters directly in
issue in this case.  But we cannot regard these matters as irrelevant.  The
history we have recited strongly suggests that there is more to this case than
the evidence reveals.  We appreciate that, on 1 May, the complainant's mother
was undergoing the stress of serious marital difficulties.  She was close to
Mr Martin.  Without elaborating the point, the complainant's mother
volunteered during the course of her evidence the comment:  "Mr Martin was
closer to me than my own father and I trusted in him and he supported me
greatly in the marriage difficulties that we had".  If that was so, it must
have been difficult for the complainant's mother to accept the import of what,
according to her, the complainant kept telling her before 30 April.  Yet, once
again according to her, on the morning of 1 May, she did accept the
significance of the complainant's statement.  Notwithstanding that fact,
between 1 May and some time in July, she not only made no complaint or
accusation; she actively put the complainant in proximity to Mr Martin.
51.  We do not impute any improper behaviour to the complainant's mother.  We
do not pretend to understand the dynamics operating between these people in
the period April - July 1990.  They were not explored at the trial.  Perhaps
counsel thought them irrelevant; but without more information it is impossible
for us to feel satisfied that the mother's delay in reporting the alleged
offence (and then not to the police) is compatible with the complainant having
made the clear statement she attributes to her on 1 May.  If it was clear,
from the events of 1 May, that a profoundly disturbing incident had taken
place the previous evening, it would be easier to accept the inconsistencies
in the complainant's versions of the incident.  But that is not clear.  The
complainant's mother, the person best placed to evaluate whatever the
complainant told her, did not act as if a profoundly disturbing event had
occurred.  Her reaction causes us to wonder whether the complainant did make
the statement her mother attributed to her.  Uncertainty on that matter must
affect the question whether the evidence, considered as a whole, was capable
of satisfying the jury beyond reasonable doubt.
52.  We wish to make it clear that we are not saying we are satisfied that the
complainant's evidence was false.  The evidence does not establish that
conclusion.  But that is not the issue.  The prosecution had to prove the
appellant's guilt beyond reasonable doubt. In the context of this case, that
means that it had to prove that the complainant's evidence was true.  If the
matter was left uncertain, the appellant was entitled to an acquittal.
53.  If, notwithstanding the jury's apparent acceptance of the complainant's
account of the matter, we are satisfied that the difficulties in the evidence
were such as to make it insufficient to satisfy a reasonable jury of guilt
beyond reasonable doubt, we must intervene.  That is our position.  In our
opinion the verdict of the jury is unsafe and unsatisfactory.  The appeal
should be allowed and the conviction set aside.
54.  It is, perhaps, desirable to point out the seriousness of child sexual
abuse.  Such conduct is totally unacceptable to right thinking members of
society.  Where child sexual abuse is proved, it ought to be severely
punished, usually by a term of imprisonment.  But, precisely because of the
serious nature of the offence, the stigma that attaches to a conviction and
the punishment which generally follows, it is important to ensure that any
conviction is supported by material sufficient to enable a reasonable jury to
be satisfied of guilt beyond reasonable doubt.
55.  We have considered whether we should order a new trial.  A new trial will
not reduce the number of inconsistencies, although it may serve to explain
some of them.  It may yield insights into the other matters we have discussed;
possibly enabling a jury to be satisfied of the appellant's guilt beyond
reasonable doubt.  But the advantage of obtaining an unimpeachable jury
verdict, one way or the other, has to be weighed against the disadvantage of
requiring the complainant, yet again and three years after the critical
events, to recall them to her mind. As a result of the jury's verdict, the
appellant has already served four months in prison.  This fact would have to
be taken into account in fixing a new sentence after any new conviction.  The
appellant's family now reside far from Canberra.  On release he is likely to
resume cohabitation with them and unlikely to come into further contact with
the complainant.  Indecent assault of a young child is a very serious offence.
But in all the circumstances of this case, it would not be appropriate to
order a new trial.

JUDGE2
DAVIES J   This is an appeal from the conviction of the appellant on the
charge that, on 30 April 1990, he committed an act of indecency upon a girl
who was then under the age of 10 years.  An appeal against sentence was not
pursued.
2.  At the trial, evidence was given on behalf of the prosecution by the girl,
her mother, her father and by two other persons with whom the accused had had
conversations.  Evidence was also given by a medical practitioner but that
added little or nothing to the case.  Evidence for the defence was given by
the accused himself and by his wife.  At the time of trial, the girl was aged
10 but at the time of the offence she was aged 8.
3.  At the trial, the girl gave evidence on oath.  The first ground of appeal
is that she was not shown to be qualified to do so, in the sense that she was
not shown to have understood the nature of the oath. Counsel for the appellant
relied upon R. v. Brown (1977) Qd R 220; R. v. Domonic (1984) 14 A Crim R 418;
R. v. Schlaefer (1992) 57 SASR 423. However, the trial Judge closely
questioned the girl and was satisfied that she understood the significance of
giving evidence and the necessity to tell the truth.  On the answers given,
his Honour's discretion under s.64(1) of the Evidence Act 1971 (ACT) to permit
the girl to give evidence did not miscarry.  The girl was therefore entitled
to give evidence either on oath or on affirmation.  She took an oath and no
objection was taken pursuant to s.15(b) of the Oaths and Affirmations Act 1984
(ACT) on the ground that she was incompetent so to do.  At this point in time
it is too late to raise a matter which, if it was to be raised at all, had to
be raised when the girl was sworn.
4.  In the course of the trial, evidence was given by the girl as to earlier
occasions extending over a period of more than a year during which the accused
had indecently handled her.  The mother gave evidence of the girl's complaints
of these matters and of the girl's apparent upset at the incidents.  The trial
Judge admitted this evidence.  I see no error in the exercise by the trial
Judge of his discretion in this respect.  The evidence of past incidents made
it more likely that the offence charged had in fact occurred and that the
incident of 30 April 1990 was not a mere accidental touching which had been
magnified in the mind of the girl into a circumstance of an entirely different
character. The evidence of past events was essential if the jury was to weigh
up the evidence of both the girl and the accused.  The evidence placed the
incident of 30 April 1990 into a context in which its probability could be
judged.  Standing alone, evidence as to the events of the night of 30 April
1990 could have seemed to the jury to be unreal and unlikely.
5.  Accordingly, although the evidence as to earlier incidents showed a
propensity on behalf of the accused to commit the crimes of the nature
charged, its persuasive value outweighed its prejudicial effect. The trial
Judge was not in error in admitting the evidence.  See R. v. Ball (1911) AC
47; Harriman v. The Queen (1989) 167 CLR 590; Paton v. The Queen (unreported,
Wilcox, Miles and von Doussa JJ, 22 July 1992); R. v. Beserick (unreported,
Hunt CJ at CL, Finlay and Levine JJ 16 February 1993).
6.  Accordingly, the appeal turns on the issue whether the verdict of the jury
was unsafe or unsatisfactory, that is to say, whether it was open to a
reasonable jury to be satisfied beyond reasonable doubt of the accused's
guilt.  Chidiac and Asfour v. The Queen (1990) 171 CLR 432; Chamberlain v. The
Queen (1983) 153 CLR 521; Morris v. The Queen (1987) 163 CLR 454.  The
principle to be applied in this appeal was stated in Chidiac v. The Queen by
Mason CJ at 443-444 as follows:-
      "In deciding whether a verdict should be set aside as
      unsafe or unsatisfactory, the question for the
      appellate court to determine is whether the jury,
      acting reasonably, must have entertained a reasonable
      doubt as to the guilt of the accused: Whitehorn (1983)
      152 CLR, at p 686; Chamberlain (No 2) (1984) 153
      CLR, at pp 534, 606-608; Morris (1987) 163 CLR,
      at p 461.  Or, to put it another way, it is for the
      court to decide whether, on the relevant evidence, it
      was open to the jury to be satisfied beyond reasonable
      doubt of the accused's guilt: Morris (1987) 163 CLR,
      at pp 472-473.  The appellate court does not discharge
      its responsibility by finding that there was evidence
      sufficient to entitle the jury to convict because a
      verdict may be unsafe or unsatisfactory when there is a
      sufficiency of evidence for that purpose:  Chamberlain
      (No. 2) (1984) 153 CLR, at p 531; Morris (1987) 163
      CLR, at p 473.
      In deciding whether the jury, acting reasonably, should
      have entertained a reasonable doubt, it is the duty of
      the appellate court to make an independent assessment
      of the evidence:  Ratten (1974) 131 CLR, at pp 515-516;
      Chamberlain (No. 2); (1984) 153 CLR, at p 534;
      Morris (1987) 163 CLR, at pp 463, 473.  In making
      that assessment, the court must necessarily take into
      account the nature and quality of the evidence, as this
      Court did in Morris, when it set aside the conviction
      as being unsafe or unsatisfactory because it proceeded
      upon the jury's evident acceptance of an admission of
      guilt which, in the opinion of the Court, was unreliable.
      ...
      In resolving that question, the court must necessarily
      recognize that issues of credibility and reliability of
      oral testimony are matters for the jury.
      ...
      Convictions based upon certain categories of testimony
      which the law has traditionally regarded with great
      caution provide compelling illustrations of the
      exercise of this jurisdiction.  Thus, the courts have
      set aside as being unsafe convictions based upon
      unsatisfactory evidence of identification or the
      uncorroborated evidence of sexual complainants and
      accomplices, notwithstanding that the judge has
      cautioned the jury in appropriate terms about the risk
      of acting upon the evidence or acting upon the evidence
      unless it is corroborated, as the case may be."
Dawson, Toohey, Gaudron and McHugh JJ each expressed the test in slightly
different terms; but the case shows that the function of an appellate court is
to examine the evidence for itself, not to substitute its own view for that of
the jury, but to assess whether a reasonable jury properly appreciating its
task was entitled to convict on the evidence before it.
7.  The girl gave evidence that she and her family and the accused and his
family were neighbours and that she had often visited his home, particularly
for the purpose of changing her clothes before going to ballet school.  She
said that on the evening of 30 April 1990, the accused came to her home to
babysit her and her younger sister.  The girl said that she and her younger
sister were in bed together and she was reading a Dr Seuss book.  She gave
this evidence inter alia:-
      "How long were you reading the book, do you believe,
      after Mr Martin arrived?  How long were you reading it
      in bed, I should say?---I can't remember.
      He came down and had a talk with you about reading it
      to him, is that what you say?---Yes, he said, 'Come out
      here and you can read the book to me.'
      You got out of bed then?---Yes.
      Had he already left and gone back down to the lounge
      room or whatever, or did you go down with him?---I
      think he'd gone down before me.
      So you joined him in the - is the lounge room, or
      family room?---It was the lounge room.
      You joined him in the lounge room?---Yes.
      When you got there, where was he?---On the couch.
      Was he sitting on the coach, or lying on the couch?---
      He was lying on the couch.
      What did you do?---I came up and lay down next to him
      and read the book to him.
      ...
      You were lying on the couch.  How long were you reading
      the book before he began to touch you?---I don't know.
      I'm sorry?---I don't know.
      Do you remember, did you start again at the beginning
      of the book or did you continue reading from where
      you'd reached?---I continued reading.
      Could I just have a look at the book, please.  I will
      just go back to what you told Mr Sabharwal.  You say he
      pulled your nightie up and put his hand down your
      knickers?---Yes.
      He kept saying, 'Open up' to you; what did you say, if
      anything?---I said, no, and kept on reading my book.
      You said 'No'.  So, what, you kept your legs together,
      did you?---Yes.
      And you kept them together the whole time, did you?
      You didn't 'open up" as he asked?---I kept them
      together.
      The whole time?---Yes.
      Now, for about how long was he touching then in the
      lounge-room that night?---I don't know because when I
      was younger I didn't have much sense of the time.
      Do you remember how many pages you might have read
      while it was happening?---No.
      And you kept reading to him aloud; is that right?---Yes.
      You said, after lunch - when Mr Sabharwal was asking
      questions - you said, 'He put his finger into your
      vagina'?---Yes.
      And did that hurt at all?---No.
      Again, I suggest you were asked, in the Magistrate's
      Court, you were asked about whether a finger was put in
      at his house and at your house, and you said, 'Does
      that mean that putting his finger inside you was at
      your place or just touching you on the outside was at
      your place?' And you answered, I suggest, 'He just
      touched me on the outside at my place.'  That wasn't
      right?---No.
      In fairness, though - I have to say,
      'In fairness' - you did, at other times, I suggest, during the
      Magistrate's Court, say that he did put his finger in?- --Yes.
      And when he had finished touching you, what happened?---He
      told me to go back to bed.
      And did you do that?---Yes.
      And what did you do, did you read in your bed or go to
      sleep?---I went to sleep.
      Now, when you woke up, what, was it the next morning?---Yes.
      And did you say something to either of your parents
      about what happened?---I told both of my parents.
      Who did you tell first?---My mum."
That evidence was given in cross-examination but it puts the substance of her
story.
8.  I see nothing improbable in that evidence, when read in the light of the
evidence as to prior events.  I may have had a doubt as to the evidence that
the accused was "lying on the couch" for it is usual for an adult to sit
rather than lie on a couch.  However, the accused gave evidence that when the
parents came to his house on the following night, "I was lying on our couch
watching the television".  So there is no reason to doubt the girl's evidence
in that respect.
9.  The accused gave evidence in chief as follows:-
      "Did you have a conversation with her?---Yes, I'd been
      down to the laundry to untangle the sheets as (the
      mother) had asked me to check in the dryer - there were
      some sheets in the dryer - and on the way back I put my
      head in the bedroom to see that everything was quiet
      and everything was all right.
      And was there a conversation with (the girl)?---Yes.
      And what was that conversation?---She was still looking
      at a book, as I recall, and I can't remember the exact
      words but she offered to read me some of the book.
      And was there a conversation about the terms under
      which you might agree to that request?---I said to her
      that to avoid disturbing (the sister), who was asleep,
      or trying to go to sleep, that she should sit out in
      the lounge room and read it for a while if that's what
      she wanted to do.
      And what did you do then?---I went back to the lounge.
      And what happened?  Did (the girl) later end up there?---Yes.
      With a book?---Yes.
      And were you doing anything at the time that she
      arrived?---I'd taken a video with me which I'd recorded
      from the television regarding the space shuttle crash
      and I was watching that.
      And where were you?---On the couch.
      Were you sitting or lying on the couch?---I was sitting
      on the couch.
      And what did (the girl) do?---She came in and sat on
      the couch as well.
      And did she read her book?---Yes.
      This was aloud?---Yes.
      For how long did that go on?---I would say maybe only
      between five and 10 minutes at the most, I would say.
      What happened then?---I said to her, 'Well, I think,
      you know, that's enough for now and you'd better go
      back to bed.'.
      And did she do so?---Yes.
      And was there any form of touching at all between you
      and (the girl) on that evening?---No."
10.  Members of the jury would be likely to have considered that version of
events to be improbable or incomplete.  Members of the jury would have
expected that, in the ordinary course of events, the accused who had got the 8
year old girl out of bed, would have been likely to have initiated some
discussion about school or about ballet or the day's events, even that he
would have taken the girl back to the bedroom when she had finished reading
and would have settled her into bed and said goodnight to her.  The accused's
account of the incident seems stark, lacking in the human responses that one
would expect between an adult and a child who knew each other well.  Note the
contrast between the irrelevant detail of the untangling of the sheets and the
sparseness of the events in the loungeroom.
11.  The girl appears to have given her evidence well.  Her answers were short
and to the point.  She did not prevaricate or seek to avoid questions and was
not expansive in the way that witnesses who try to put across a point of view
so often are.  I see no indicia of unreliability in her evidence and am left
with the impression that she was an excellent witness.
12.  There were several discrepancies in evidence on which counsel for the
appellant relies; but these were all put to the jury by counsel in his address
and by the trial judge in his summing up.  I do not propose to discuss the
discrepancies individually.  Some were brought about by the girl's answers to
leading questions put during the committal.  None of the discrepancies causes
me any concern, perhaps because I would not expect a girl of 10 years or less,
that is to say at an age when language is not used with the precision that
might be expected of an adult, to go through the process of statement to the
police, evidence in the committal proceedings and evidence of the trial
without there being some discrepancies.
13.  There is a difference between the girl's evidence and what her mother
said was her complaint on the morning of 1 May 1990.  But to some extent, this
discrepancy supports the girl's evidence, for it shows that the girl was not
repeating by rote a story that her mother had impressed upon her.  Indeed, the
transcript of evidence suggests to me, as her evidence must have suggested to
the jury, that the girl was giving her evidence from her actual recollection
of the events and not from a story in which she had been tutored.
14.  Counsel for the appellant has submitted that, if the jury believed the
girl's evidence, then it was inconsistent for the jury to acquit the appellant
of the more serious charge of sexual intercourse with her.  However, having
regard to the child's age, the limited extent of the finger penetration which
the girl described, and her evidence that she refused to open her legs, I
would not have expected the members of the jury to be satisfied that the more
serious offence was proved beyond reasonable doubt.
15.  The girl's evidence was supported by the complaint she made to her
parents on the following morning.  Such a complaint was described by Barwick
CJ in Kilby v. The Queen (1973) 129 CLR 460 at 472 as "a buttress to the
credit of the woman who has given evidence of having been subject to the
sexual offence".  In Kilby's case at 475, Menzies J said that "evidence of the
recent complaint is admitted not as evidence of the acts complained of, but as
affording greater probability that the evidence of the woman who has made such
a complaint is true."  As Jordan CJ said in Smith v. Commonwealth Life
Assurance Society Limited (1935) 35 SR (NSW) 552 at 556:-
      "the fact that a complaint was made at the time in
      terms similar to the evidence afterwards given, goes to
      negative the possibility that what is now said in
      evidence is an afterthought - an invented story
      prepared after the event - a possibility which is
      regarded as existing in a special degree in this class
      of case."
16.  As the girl's evidence was buttressed by her early complaint to her
parents and the mother's evidence that the girl was upset, which was
confirmatory of her evidence, the prosecution presented a straightforward and
substantial case.  The allegation by counsel for the appellant that the girl's
complaint was a response to her parents' marital problems does not seem
credible having regard to the period over which the girl made such complaints
to her mother.
17.  A curious feature of the case was the conduct of the girl's mother, who,
notwithstanding the complaints that she had received over more than 12 months,
did not take adequate steps to protect her daughter and took only limited
steps after receiving the complaint on 1 May 1990. But her conduct does not
cast doubt upon the girl's story.  The explanation lies in the mother's
reliance on the appellant.  As the mother said in evidence:-
      "Mr Martin was closer to me than my own father and I
      trusted in him and he supported me greatly in the
      marriage difficulties that we had."
I have had an opportunity to read the reasons for judgment of my brothers,
Gallop and Wilcox JJ   I note that their Honours have a doubt that the girl
made the complaint of which she, her mother and her father gave evidence.
However, I have re-read the transcript of the evidence in this light and do
not myself find any reason to doubt the evidence of those witnesses.  The step
taken on the evening of 1 May 1990 of removing the girl in the future from the
care of the appellant and his wife was consistent with it.
18.  On the other hand, the appellant's evidence at the trial had elements
which the jury might well have disbelieved.  And, the jury might have thought
that the evidence of the appellant's wife was evasive.  For example, in
cross-examination as to the earlier events, the appellant's wife gave this
evidence:-
      "I suggest to you that (the girl) went and changed in
      (the appellant's sons') bedroom?---No.  Only a couple
      of occasions she did that.
      Did you tell her to go and change there?---Probably.
      It was probably when we had visitors or something.  I
      don't recall telling her to go and change there but
      I - I don't recall her getting changed there very often.
      But she did go and change there?---Yes, occasionally."
19.  There was, moreover, a conversation between the appellant and a female
security supervisor at the appellant's place of work.  The supervisor gave
evidence, inter alia:-
      "He (the appellant) then went on to say that he did not
      consider that a finger or a thumb constituted
      penetration."
In cross-examination this evidence was given:-
      "And I further suggest that he did not say that he
      didn't consider that a finger or a thumb constituted
      penetration but that he said, he had been unaware of
      the fact that in law, apparently, penetration by a
      finger or thumb is sexual intercourse?---No, it was not
      said like that, sir."
The members of the jury would probably have considered that both the statement
of which the supervisor gave evidence and the statement as alleged by counsel
for the appellant were very strange statements by a person whose case was that
the incident which the girl alleged was a figment of her imagination.
20.  In these circumstances, it seems to me that it was open to the jury to be
convinced that the evidence of the girl was correct and the evidence of the
appellant was false and that it was open to a reasonable jury to conclude
beyond reasonable doubt that the appellant was guilty in respect of the lesser
offence of an indecent act with which he was charged.  The girl's evidence, if
accepted, proves all the essential elements of the charge.
21.  There is a rule of practice or of law which requires a judge to warn the
jury of the danger of convicting on the uncorroborated evidence of a child.
This rule is discussed in K v. The Queen (1992) 34 FCR 227 at 232-3.  The rule
has been removed in some jurisdictions, as by s.34 of the Criminal Justice Act
1988 (U.K.), but it is retained by s.76F(3)(b) of the Evidence Act 1971 (ACT).
The trial Judge gave the warning to the jury.  There is no challenge to the
summing up by the trial Judge in this or in any other respect.  Counsel for
the appellant did hint on occasions that the summing up by the trial Judge was
not in "traditional form" but when pressed, made no challenge to the summing
up and no ground of appeal was directed to it.
22.  The trial Judge warned the jury that the jury "should look particularly
carefully at the evidence of a young child" and "be particularly careful
before convicting on the uncorroborated evidence of a young child" and "must
bear in mind the dangers of so convicting". This warning having been given,
the matter was, it seems to me, a matter for the jury.  If the members of the
jury were satisfied of the truth and accuracy of the evidence given by the
child, they were entitled to act upon it, taking into account the Judge's
warning of the danger in so doing.
23.  Young though she was, the girl's evidence was clear and probable.  Her
credibility was confirmed by her early complaint and her distress on the
morning after the incident.  It seems to me that a jury, taking note of the
warning given by the trial Judge as to the danger in acting on the
uncorroborated evidence of the girl, was entitled to assess her as a witness
of the truth and to assess the evidence of the appellant as false.  The
members of the jury saw the witnesses giving their evidence and would have
been in a position to assess their veracity.  If the girl was an excellent
witness, as she appears from the transcript to have been, it seems to me that
the jury was entitled to be satisfied beyond reasonable doubt that the offence
of an indecent act had occurred.  The acquittal of the appellant on the more
serious charge is an indication that the jury turned its mind seriously to the
task of ensuring that a conviction be made only on proof beyond reasonable
doubt.
24.  For these reasons I would dismiss the appeal.