Clarke v The Queen [2013] VSCA 206

1 I will invite Buchanan JA to deliver the first judgment.

2 After a trial in the County Court, the applicant was convicted on a charge of incest (charge 5), a charge of attempted incest (charge 4) and two charges of an indecent act with a child under 16 (charges 2 and 3).

3 After a plea, the applicant was sentenced to be imprisoned for a term of 9 years and 2 months. A nonparole period of 7 years was fixed.

4 An application for leave to appeal against conviction was refused by a single judge of the court. The applicant has elected to renew his application to a court constituted by two or more judges.

5 Having regard to the nature of the ground of application, the facts may be shortly stated.

6 The complainants were two of the applicant's natural daughters.

7 Charge 2 arose from an occasion on which the applicant instructed his daughter to masturbate his penis after placing lubricant on her hand. The applicant said, 'If you tell mum I'll kill you'.

8 Charge 3 was constituted by the applicant rubbing his fingers on the vagina of his daughter when she was in the bath. Charge 4 concerned an occasion on which the applicant took his daughter into a bedroom, climbed on top of her and commenced going up and down, trying to insert his penis into her vagina. He was unable to do so, so he rubbed her vagina instead. Charge 5 was constituted by the applicant rolling on top of his daughter after entering her bedroom. The applicant put his penis into his daughter's vagina.

9 The sole ground of the application is as follows:

A substantial miscarriage of justice occurred as a result of the trial judge's directions to the jury on trial witnesses and on the procedures pertaining to their complaints to the police and their evidence at the trial.

10 Section 375 of the Criminal Procedure Act 2009 (Vic) provides:

If a recording of a special hearing is admitted into evidence under section 374, the trial judge must warn the jury -

(a) that it is routine practice for the evidence of the complainant who is under the age of 18 years or has a cognitive impairment to be recorded at a special hearing before the trial; and

(b) no adverse inference may be drawn against the accused as a result of the evidence being recorded; and

(c) that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded.

11 The trial judge gave the jury the directions required by the section and also gave directions which travelled beyond the ambit of the section. He told the jury to be cautious in evaluating the evidence of witnesses using VATE tapes. He referred to the timing of the occurrence of the various steps and the time delay between examinationinchief and crossexamination. He described matters which could cause problems and cautioned the jury to be careful when dealing with the evidence. At one point he said that it seemed to him that the witnesses were recalling what was said on the tape and not recalling what occurred. The judge concluded his remarks by telling the jury that children were not in a special category of witnesses and told the jury that they were to take into account matters of common understanding in assessing witnesses.

12 Counsel for the applicant submitted that the effect of giving this extended warning was that the jury would give greater weight to the evidence because it had been recorded, in breach of the provisions of s 375(c).

13 I do not agree. The logical reaction to the judge's directions was to subject the complainants' evidence to greater scrutiny rather than to give it greater weight. I do not think the jury is to be taken to have acted illogically.

14 It is, I think, unfortunate that the trial judge embarked upon an evaluation of

the evidence of children and recorded evidence. Certain of his Honour's remarks constituted reservations and criticisms of evidence of this nature, contrary to s 375(c). I do not think the statements were directed at deficiencies in the evidence in this case. Rather, they constituted general statements as to a class of witness and the nature of the evidence rendered admissible by s 374 of the Act, which were expressed as propositions, not merely suggestions, which the jury might consider. Nevertheless, I do not consider that the trial judge's statements caused a miscarriage of justice.

15 Accordingly, I would refuse leave to appeal against conviction.

16 I, too, would refuse leave to appeal against conviction. Subject to what follows, I would do so for the reasons which his Honour has given.

17 The argument for the applicant was premised on the proposition that the statements by the judge to the jury about child witnesses, and about the tape recording procedure used to record the evidence of these particular child witnesses, contravened two separate provisions - s 375 of the Criminal Procedure Act 2009 (Vic), and s 165A(1) of the Evidence Act 2008 (Vic). (For ease of reference, the full extract from the charge is attached as an appendix to these reasons.)

18 The primary argument was directed at s 375, which concerns the tape recording procedure. As appears from the reasons of Buchanan JA, s 375(c) imposes on the trial judge an affirmative obligation about what the jury must be told. Its corollary is a prohibition on any statement to the effect that the evidence of a complainant which is admitted into evidence under s 374 is to be given any greater or lesser weight as a result of the evidence having been recorded.

19 I respectfully agree with Buchanan JA that his Honour's remarks about matters which could 'cause concern' because of the recording procedure would seem to be contrary to that prohibition.

20 The secondary argument was directed at s 165A(1) of the Evidence Act. Counsel for the applicant drew attention to the following extract from the charge, which includes references in what appear to be general terms to the ability of children to remember, and appropriately characterise, events from the past:

But some things can occur, but children's memories, and this is not being critical of them as a class of witness, from your own life experience, their memories can become blurred. They can potentially , and you are looking at the individual child, not just generalisations here, misinterpret things. All right? For example, here, the defence say that what happened in the bath just simply did not happen. But if you found that it did, you have to look carefully at whether it is being misinterpreted, as I said to you before, whether it was wilful, whether it was a sexual connotation to it.

21 It seems to me, with respect, that jurors would have understood his Honour's statements that '[children's] memories can become blurred' and that '[t]hey can potentially ... misinterpret things' - as general statements about the fallibility of children's memories and of their interpretations of events. Counsel for the applicant submitted that those statements were contrary, if not to the letter, then at least to the spirit and the underlying policy of s 165A(1), in particular sub-ss (b) and (c). Section 165A(1) provides:

165A Warnings in relation to children's evidence

(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.

22 In my respectful view, that submission is also well founded. Although his Honour disavowed any intention to comment on children generally, the remarks were expressed in general terms and were calculated to invite greater scrutiny of the complainants' evidence than if they had not been witnesses of a young age. His Honour's expression of scepticism about the reliability of children's memories would seem to be contrary to the clear legislative policy in s 165A(1).

23 That section was enacted in Victoria on the basis of a joint recommendation of three Law Reform Commissions, based on experience in New South Wales with a like provision.[2] The policy underpinning the recommendation had been clearly spelt out in an earlier discussion paper, as being to:

clarify the law in respect of warnings about children's evidence, to ensure that warnings about children as a class are not given and trial judges focus on the particular circumstances of the child giving evidence when considering whether to warn the jury about the reliability of that child's evidence.[3]

24 The tenor of his Honour's remarks, as I have said, seems to have had the effect of placing the evidence of child witnesses - and of course, relevantly, the child witnesses in this case - in a special category because of their age. I note, however, that the Crown, in response to a question from the bench, did not accept that these remarks were contrary to either the letter or the spirit of the provisions.

25 The clear language, and policy, of s 375 and s 165A would seem to preclude a judge from expressing any generalised concern to the jury either about the tape recording procedure or about the reliability of children's evidence. It would, I think, be appropriate for the Criminal Charge Book Editorial Committee, which maintains a close watch on jury directions, to examine this issue. The Committee might consider whether, in the light of the decisions referred to in argument,[4] any clarification is required concerning the scope and limits of comments by a judge on topics of this kind.

26 The critical point for present purposes, however, is that these statements were unmistakeably helpful to the defence. Mr Kassimatis argued forcefully that the statements were calculated to create a risk that the jury would take the children's evidence more seriously or, as he put it, would treat the recording procedures and the children differently, such that any defects in their evidence would be 'catered for'.

27 In my opinion, that submission must be rejected. As I have said, his Honour's remarks highlighted defects, or potential defects, in the children's evidence and provided no basis for thinking that those defects might be overlooked or somehow disregarded. After all, s 165A(1) is a section which is included to assist prosecutors, not defendants, by ensuring that any presumptions about the unreliability of children are avoided and that children's evidence is taken on its merits, as it should be.

28 Accordingly, although it seems arguable that there was non-compliance with the provisions, there was in my opinion no risk whatever of the jury being influenced in a manner adverse to the defence.

29 The order of the Court is: application for leave to appeal be refused.

All right, what I want to do now, ladies and gentlemen, is just explain a couple of things in a general sense. They are directions of law that I am giving to you, but they are essentially explanatory rather than anything else. And they are particularly directed towards a trial of this nature, where the witnesses are children. All right? And a lot of this is common sense, and I apologise in advance if I am offending your common sense principles, but it needs to be gone through. And I will take a little time to do it.

The situation has been now, for quite some time, that in trials where the allegations are of a sexual nature, coming from children, that a process takes place where within as quick a time as possible after the complaint is made to the police, police interview the child, and you see, what you get is the VATE tape. That then becomes the evidence of the child. And it is, I simply can say this, it is very unusual for that to be added to. That becomes the evidence. Now, there are a number of things that arise with that that cause concern from the start.

Whilst the police that carry them out are trained, obviously, they are not prosecutors. They are not lawyers. And it is not uncommon for the evidence to come out in a fairly generalised, jumbled sort of a way, all right? And when I go through the summary of the evidence, I will have to - now that you have got them with you, I will have to (indistinct). Quite a bit of the questions are in a general sense: 'When he would do this.' Now, in a criminal trial, we cannot do that. It has got to be a specific charge. As I said to you before, you cannot have a generalised charge.

So that is a problem that exists from the start. Often depends on how young the child is, too. So there is all that that takes place. What is also important to understand, when that VATE tape is being prepared, is unlike any adult witness, there is no defence barrister there to say, 'Hang on, hold the phone. Ask that properly, or what about this, or what about that?' The defence have no input into it. Now, do not get me wrong - I am not being critical of endeavouring to do it this way. I practiced law with five year olds sitting in there, and it was just awful.

Guilty or not guilty is not the point. But the evidence is created, if you like, obviously, by what is said by the child, but under the auspices of a non-lawyer non-prosecutor police officer. And there is no one there from the defence to say, 'What do you mean by that?' Or clarify that - do you see what I mean? It is a production. Now, what then happens is that there is then a period of time before that version is tested. Now, in this particular scenario, that period of time is 18 months. Now, you are dealing with an eight year old, getting to nine and a half. I think I am right about this. And a seven year old getting to like eight and a half.

So there is an 18 month gap between the tape being made, and the testing of it, all right? Now, as [the prosecutor] properly put to you this morning,

cross-examination is how you test evidence. Now, with a child of tender years, that is a quarter of their life. So that you have got a prepared piece of evidence at one point, where they have then go to recall back, with the difficulty of the barrister cross-examining them, they have got to then recall

back to what happened. And this is a comment from me - sometimes, it seems to me, that they are recalling what is on the tape, not what was back then.

So that is something that should be - I am not saying that it happened here. I am just saying that these are things to be alert to when you examine these tapes, and the difficulty that a barrister can have, endeavouring to challenge it. All right? And it is the lapse of time affects - it affects everybody's memory. With a child, from as I say, from seven to eight and a half is a quarter of their life. That is a long time to then have to remember back. Then, and again, totally properly they are then shown the tape a few days before they - or often on the morning of, when they do that special hearing, and they say, 'Is that true and correct?' And they say: 'Yes.'

I have not seen one yet that said no. And away you go. But there are inherent matters that relate to that that can cause problems. Now, I am not saying here that they do. I am just alerting you to the potential of that process. And I am not, and again, I make this very clear, I am not decrying the process at all. Simply the potential that a jury has to be really careful of when you are dealing with that. You see, in this particular trial, for example, and certainly, you understand, so I am not being critical of anyone involved here, the mother is led by the Crown, who gives evidence of complaint, right? What was said to her.

And then the Crown rely on that for consistency. It is not evidence of the truth, I mean, you can say the same thing twenty times, and that does not make it any truer. But it is relied upon by the Crown as consistency. Here she is, she said this, and then later on she said this, and you have seen her cross-examined again after that, and she said that. Her version is consistent, that adds to her credibility.

The defence on the other hand, in a situation such as this, say, 'Well, hang on. That was not said, this was not said, that was different, that's totally different. And that is inconsistency.' But that is all based on what the mother says here. Right? At no point in time has the child ever been asked, 'Is that what you said to mum?' Or, 'What did you mean by that?' Or, 'Explain that.' They are never asked that. So what you have got is, and I am not saying it is right or wrong, what you have got is mum's interpretation of what was being said, and often what is being said under very difficult circumstances.

Right, so again, you have got to take that into the equation, from both sides' points of view when you are evaluating that. That the child has never been asked to explain any of this. All right, now that is what has happened. That is not either of these fellows' fault. So that is, and that is just an example of it. You will find a number of things through the evidence of mum which do not seem to be covered previously. Right, so you do not know what the child is saying about it. Anyway.

So just be careful as you go through this process. What you are then dealing with is this. That there is certainly not the situation that children are to be regarded as an unreliable class of witnesses, all right? That is not the case at all, and [defence counsel's] addressed you again after lunch about what he said before lunch. That is not the case. Each child must be looked at in their own right. There are some factors though, when you look at a witness to see whether you accept them or not, age is obviously something you take into account. I mean, you do not pretend they are adults.

But some things can occur, but children's memories, and this is not being critical of them as a class of witness, from your own life experience, their memories can become blurred. They can potentially, and you are looking at the individual child, not just generalisations here, misinterpret things. All right? For example, here, the defence say that what happened in the bath just simply did not happen. But if you found that it did, you have to look carefully at whether it is being misinterpreted, as I said to you before, whether it was wilful, whether it was a sexual connotation to it.

And you might look at the context evidence, the uncharged acts. There are other things you can take into account. You have just got to be careful as you would be, with kids, in terms of what happens to their memories. Because the timeframes, to us, are not that big. But to a kid, they are massive. A couple of years, to a six year old is just the end of the world. You may as well - it is never going to happen, all right? So just be careful of those things.

There is a passage that I will read to you from a judgment which I think probably sums this up pretty well. And that is not to say that kids tell the truth every time either, that is not what it is about. But I think this sums it up pretty well: 'Like adults, some children will provide truthful and accurate testimony and some will not. However, children are not miniature adults, but children, and are to be treated and judged for what they are - not what they will, in years ahead, grow to be.'

'Therefore, although due allowance must be made in the trial process for the fact that they are children, with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures that apply to the evidence of children carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable, and that which is not - whether it comes from an adult or a child. In a trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic that may bear on the issue of credibility, along with the rest of the available evidence.'

[1] To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Joint report of Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102 (2005), 608-10 [18.64]-[18.68].

[3] Australian Law Reform Commission, Review of the Uniform Evidence Acts, Discussion Paper No 69 (2005), 473 [16.90].

[4] C M G v The Queen [2011] VSCA 416; K R I v The Queen [2012] VSCA 186; R v Barker [2010] EWCA Crim 4.