Crofts v The Queen

High Court of Australia|1996-10-10|Before: Kirby JJ, Dawson J

High Court of Australia Dawson, Toohey, Gaudron, Gummow and Kirby JJ Crofts v The Queen [1996] HCA 22

Set aside the order of the Victorian Court of Criminal Appeal and in lieu thereof order that the appeal to that Court be allowed, the appellant's convictions be quashed and a new trial be held.

The following written reasons for judgment were published: -

Two grounds of appeal were argued by the appellant. The first was that the trial judge erred in failing to discharge the jury after inadmissible evidence was elicited by the prosecutor in re-examination of the complainant. The second was that the trial judge failed to direct the jury that the absence of recent complaint might be considered by them in assessing the credibility of the complainant.

The first ground may be disposed of shortly. Apart from the offences with which the appellant was charged, the complainant maintained that she was the victim of other sexual offences committed by the appellant over a considerable period of time. The trial judge ruled that evidence of these other offences was inadmissible under the rules governing the admissibility of propensity evidence. He recognised the danger of the emergence of such evidence in the course of the trial, but indicated that he would deal with such an eventuality if and when it occurred. He cautioned the prosecutor to take care to avoid the inadmissible evidence being given inadvertently.

However, at the conclusion of his re-examination of the complainant the prosecutor asked the following questions and received the following answers:

Over the years that he was doing these sexual things to you, did you see any way open to you to get him to stop doing these things to you? - Yes, I did.

What was that? - Are you meaning something I could've done to stop him?

Yes? - What I was going to do is the next time that he ejaculated in my mouth, I was going to keep it, put it in a jar and take it with me and that was my proof that he definitely did it because I knew he'd be able to lie through his teeth. I knew that he'd make it look as if it was all bullshit. That was the only thing I thought that I could do to have definite proof against him.

Did that happen again? - It happened many times but I never had the opportunity to do anything about it.

Counsel for the appellant immediately sought the discharge of the jury. He contended that the introduction of the evidence was not accidental but deliberate, an allegation denied by the prosecutor, and that the prejudice to the appellant caused by its introduction could not be eliminated by an appropriate direction from the trial judge. Counsel for the appellant drew the judge's attention to the fact that the inadmissible evidence was elicited at the conclusion of the complainant's evidence and immediately before the Court was about to adjourn for the weekend. When the Court resumed the trial judge ruled against discharging the jury and put to counsel the direction which he proposed to give the jury. Counsel for the appellant agreed that, if there were to be no discharge, the direction was "an adequate and proper warning". Accordingly, the trial judge directed the jury as follows:

Now that the complainant has finished her evidence, it is appropriate for me to say to you that you will bear in mind, in this case, that the accused, as you were told by the Prosecutor in his opening, has been charged with thirteen specific offences, relating to seven specific occasions, and you have got those summaries with you. In so far as the complainant on odd occasions in her evidence may have gone outside the scope of those specific complaints against the accused, such references are quite irrelevant to the specific charges that we are dealing with here, and should be totally excluded by you from your considerations.

At the end of the evidence, and I will warn you again of this fact, you have to decide whether you are satisfied beyond reasonable doubt that the accused is guilty of one or more of the thirteen specific offences with which he is charged, and you will reach that conclusion based on all of the relevant evidence as you have then heard it. Of course, you haven't heard it all yet, but will at that stage reach your considered view on the guilt of the accused based on the relevant evidence, and you will exclude, as I am telling you to do in this case, you will exclude anything from your consideration anything that's irrelevant, and so any references to - any oblique references or complaints that may appear to be broader in compass than the particular ones that have been outlined in front of you are to be excluded from your consideration. Is that clear? Thank you.

No objection was taken to that direction and it was repeated in similar terms by the trial judge in his charge to the jury at the conclusion of the trial.

Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that "a high degree of need for such discharge" must appear before a discharge will be ordered. [16] When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.

See Winsor v The Queen (1866) LR 1 QB 390 at 394; Swinburne v David Syme & Co [1909] VLR 550 at 563, affd David Syme & Co v Swinburne (1909) 10 CLR 43; R v Boland [1974] VR 849 at 866.

In this case it was open to the trial judge to reach the conclusion that an appropriate warning to the jury was sufficient to overcome any prejudice which the admission of the evidence in question caused to the appellant and that any such direction would not draw the jury's attention to the evidence in a manner prejudicial to the appellant. In reaching that conclusion the trial judge did not take into account anything which he ought not to have taken into account nor did he fail to consider any matter which he ought to have considered. The warning which he gave was adequate and there is no reason to suppose that the jury did not follow the direction which they were given so that any prejudice which might otherwise have been occasioned to the appellant was thereby avoided. The refusal to order a discharge of the jury lay within the discretion of the trial judge and there is no basis upon which it can be said that the discretion miscarried. It is not open to this Court simply to substitute its view of the manner in which the discretion ought to have been exercised for that of the trial judge, even if it were minded to do so. The first ground of appeal must fail.

I turn now to the second ground of appeal. The date upon which the complainant first complained of the offences which the appellant was alleged to have committed was 22 June 1993. There was, therefore, delay in making the complaint. Section 61 of the Crimes Act 1958 Vict provides that on the trial of a person for certain sexual offences which include those with which the appellant was charged:

(a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and

(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must -

(i) warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and

(ii) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in complaining about it.

(2) Nothing in sub-section (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.

The trial judge in his charge gave the following direction:

one inference you should not draw, as a matter of law, in this case, for the reasons I will mention later, is that because the complainant did not complain about the offences immediately after they happened, that they did not happen or that she was not bothered by them or that she consented - not that consent is an issue in this case, but you would not be entitled to draw those inferences. (Emphasis added.) Subsequently, his Honour gave a further direction upon the topic. This was in terms of s 61(1)(b) of the Crimes Act. He said: The second matter - and I adverted to this earlier, but I am now giving you the formal direction, relates to the delay in making the complaint. The law requires me to give you this advice, but again, when fully considered, it is a matter that accords with commonsense and human experience. Delay in complaining in sexual abuse cases does not necessarily mean the allegations are false; there may be good reasons why victims of sexual assaults hesitate in making complaints about them. The experience of the law confirms that complaints are often not made immediately after sexual assaults. [The prosecutor], in his address to you, suggested that she was young, confused, feelings of guilt, fear of disbelief, fear of family upheaval, fear of accusation against a family friend were all suggestions that were put forward that may explain such a delay, and there may well be others. Experience has shown that it is not uncommon for such a delay and the law requires me to say that it does not necessarily mean the allegations are false.

The first direction given by the trial judge was in error. It would appear that he was attempting to express the proposition of law established in Kilby v The Queen [17] that a complainant's delay in making a complaint in cases of a sexual nature has "no probative value as to any fact in contest" [1] but goes merely to the credibility of the complainant. Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant. However, it does not necessarily do so, particularly where there is an explanation for the failure or delay. On the other hand, a recent complaint may be consistent with the truth of the evidence given by the complainant and so assist in establishing his or her credit. But that is as far as evidence of a recent complaint or lack of a recent complaint can go. It does not itself go to establish the facts of which the complainant gives evidence nor does it go to disprove those facts.

(1973) 129 CLR 460. 2. Kilby v The Queen (1973) 129 CLR 460 at 472.

But the trial judge in his first direction, in speaking of the complainant's delay in complaining, failed to distinguish between the credibility of the complainant and the probative value of the facts of which she gave evidence. The relevant passage may be read as referring either to credibility or to probative value and if it is read as referring to credibility (and it may have been so understood by the jury) then it amounted to a direction that, as a matter of law, the jury were not entitled to have regard to the complainant's delay in making a complaint in determining whether or not to accept her evidence. In that respect it was in error.

The error was compounded by the second direction. As was recognised by the Victorian Court of Appeal in R v Miletic [2] , s 61(1)(a) was introduced in 1991 [3] and is apparently based upon an analysis of the law made by this Court in Longman v The Queen [4] in relation to s 36BE of the Evidence Act 1906 WA. That section provided that a judge is not required by any rule of law or practice to give in relation to any sexual assault offence a warning to the jury to the effect that it is unsafe to convict the accused on the uncorroborated evidence of the complainant. The majority in Longman held that that provision referred only to a rule of law or practice that placed victims of sexual offences in a special category of unreliable witnesses. It did so by requiring a warning that it is generally unsafe to convict on the uncorroborated evidence of the victim because evidence of that kind has been shown by experience to be especially liable to fabrication. The abolition of the rule of law or practice, so it was held, did not affect the requirement imposed by the law generally that a judge should give a warning, including a warning about the danger of convicting upon the uncorroborated evidence of the victim of a sexual offence, "whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case". [5] A provision comparable with the Western Australian provision existed in Victoria. [6] The present s 61 was substituted for it in 1991 and sub-s (1)(a) reflects the distinction made in Longman. Clearly then, sub-s (1)(b), in requiring a trial judge to warn a jury that delay in complaining does not necessarily indicate that a complainant's allegation is false and to inform the jury that there may be good reasons why a victim of sexual assault may hesitate in complaining about it, does not abrogate the rule requiring a judge to give a warning required in the interests of justice upon the particular facts of a case or preclude a judge from making a comment, including a comment upon delay in the making of a complaint, where he or she considers it appropriate upon the facts of the particular case to do so.

Unreported; 9 August 1996. 2. See Crimes (Sexual Offences) Act 1991 Vict, s 3. 3. (1989) 168 CLR 79. 4. Longman v The Queen (1989) 168 CLR 79 at 86. 5. See the former s 62(3) of the Crimes Act 1958 Vict introduced by the Crimes (Sexual Offences) Act 1980 Vict.

In R v Davies [7] the New South Wales Court of Criminal Appeal considered s 405B(2) of the Crimes Act 1900 NSW which requires a trial judge to warn a jury, where there is a suggestion of lack of recent complaint, that it does not necessarily indicate that an allegation of sexual assault is false. The sub-section also requires the judge to inform the jury that there may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about the assault. There is no equivalent of s 61(2) of the Victorian Act, but the Court concluded that the New South Wales sub-section did not "codify the law relating to evidence of complaint" [8] and did not relieve a trial judge from the obligation to give a direction to the jury, where fairness demanded it, "that the absence of a complaint or the delay in making one may be taken into account by it in evaluating the evidence of the complainant and in determining whether to believe her". [9] In R v Omarjee [10] the Victorian Court of Criminal Appeal approved the remarks of the New South Wales Court of Criminal Appeal in R v Davies . Of course, s 61(2) of the Victorian Act specifically provides for a trial judge to comment on the evidence where it is appropriate to do so in the interests of justice and this would include a comment upon a lack of recent complaint.

(1985) 3 NSWLR 276. 2. R v Davies (1985) 3 NSWLR 276 at 278. 3. R v Davies (1985) 3 NSWLR 276 at 278; cf R v Murray (1987) 11 NSWLR 12 at 18. 4. (1995) 79 A Crim R 355 at 368.

In the present case, the delay in the making of a complaint was not inconsiderable. The appellant relied upon the evidence of delay as he was entitled to do. The trial judge gave no assistance to the jury as to the extent to which they could use the delay in their deliberations. Indeed, he misled the jury by telling them in effect that they could not as a matter of law use the evidence. That error was subsequently exacerbated when he failed to counterbalance his direction that delay did not necessarily mean that the complainant's allegations were false with a direction that the jury were nevertheless entitled to take the delay into account in assessing the complainant's credibility. The failure to give the latter direction may well have amounted to a misdirection in any event, but in the light of the earlier direction it constituted a serious error. It is not possible to say that the jury were not misled.

For these reasons, the trial miscarried. The appellant's convictions were, therefore, quashed and a new trial ordered. It is a matter for the prosecution, having regard to the portion of the sentence already served by the appellant, whether it wishes to proceed further.

At the conclusion of the hearing of this appeal, the Court ordered that the appeal be upheld, the order of the Supreme Court of Victoria set aside, the convictions of the appellant be quashed and that there be a retrial. It indicated that its reasons for those orders would be published at a later date. We now state our reasons.

Mr Ian Crofts (the appellant) was presented for trial in January 1995 in the County Court of Victoria. The presentment contained thirteen counts charging the appellant with various offences of a sexual nature said to have been committed by him between 1 March 1987 and 31 January 1993. The counts alleged sexual misconduct on eight separate occasions. The complainant, who was the alleged victim of the misconduct, was aged about thirteen years on the first occasion and about sixteen years at the time of the last. The evidence revealed that the complainant first told her mother of the appellant's alleged misconduct in June 1993, soon after which she made statements to the police. The first complaint was therefore made six years, or thereabouts, after the first alleged incident and six months after the last.

The complainant was born in May 1976. The appellant was a friend of her family.

The complainant's allegations to her mother and the police contained assertions that she had been the victim of many sexual acts committed by the appellant over an extended period of time. The prosecutor chose to charge the appellant only with the thirteen offences stated in the counts of the presentment. That decision was to give rise to a danger that evidence would intrude into the trial, prejudicial to the appellant, concerning alleged incidents in respect of which he was not charged. That danger eventuated in circumstances which it will be necessary to describe.

The complainant lived with her family near Swan Hill in the State of Victoria. Because her father's employment was in Melbourne, he resided with the appellant and his family between October 1990 and April 1992. From time to time the complainant, with her mother, visited her father at the appellant's home and stayed overnight. There were other occasions when the appellant, his wife and daughters paid visits to the home of the complainant's parents at Swan Hill and at nearby places. The offences were alleged to have occurred during these visits.

The trial of the appellant lasted eight days. It was conducted before Judge Williams and a jury. His Honour directed the acquittal of the appellant on counts 11, 12 and 13 upon the ground that the Crown had failed to prove that, at the relevant time, the complainant was under the appellant's "care, supervision or authority" as charged. [11] The remaining counts went to the jury. The appellant was acquitted by the jury on counts 1, 2, 8, 9 and 10. However, the jury convicted the appellant of the offence charged in count 3 (alleging the commission of an indecent act with a child under the age of sixteen years) and the offences charged in counts 4, 5, 6 and 7 (being four counts of sexual penetration of a child between ten and sixteen years of age). The counts on which the appellant was convicted all related to events said to have taken place on a single night between September 1991 and May 1992, the latter date being fixed by reference to the complainant's sixteenth birthday.

The prosecution case was that the complainant was sharing a bedroom with one of the appellant's daughters, who was sleeping in a separate bed. When the daughter began to cry during the night, the appellant soothed her. But before departing the room, he kissed the complainant and grabbed her breasts on the outside and then on the inside of her nightdress. This was the indecent act charged in count 3. When his daughter again began to cry, the appellant allegedly returned and quietened her. But on this occasion he got onto the complainant's bed, inserted his finger in her vagina (count 5); inserted his penis in her mouth (count 4); placed his mouth on her vagina and penetrated it with his tongue (count 6); and pushed his finger into her anus (count 7). He allegedly ejaculated into the complainant's mouth, after which he left the room.

At the time of these events, the complainant's parents were in the house but she made no complaint to them.

Following the jury's verdicts, the appellant was convicted on those counts upon which guilty verdicts were returned. He was sentenced to an aggregate term of imprisonment of three and a half years, with a non-parole period of two and a half years.

The appellant sought leave to appeal against the convictions and sentence. Both applications were dismissed by the Court of Criminal Appeal (Crockett, Southwell and Vincent JJ). [12] By special leave, an appeal against conviction was allowed to this Court, special leave being refused to challenge the Court of Criminal Appeal's approach to the sentence.

Several grounds of appeal were agitated in the Court of Criminal Appeal but only two were pressed in this Court. The two points which were argued, to sustain the attack on the convictions, were:

That the trial judge had erred in declining to discharge the jury after inadmissible evidence was given as to alleged sexual misconduct on the part of the appellant, not charged in the presentment and excluded by the ruling of the trial judge.

That the trial judge had misapplied s 61(1)(b) of the Crimes Act 1958 Vict (the Act), and for that reason had misdirected the jury. He had also failed to give the jury directions as to the significance which they might attach to the complainant's delay in making a complaint about the appellant's alleged sexual misconduct.

The appellant has made good both of his complaints about the conduct of the trial. Each of them resulted in a miscarriage of justice and required that the convictions be quashed.

When the trial of the appellant began, his counsel submitted that evidence of intermittent acts of sexual misconduct on the part of the appellant, foreshadowed in the complainant's statement to police, and similar to those charged in the counts of the presentment, would inevitably result in "overwhelming prejudice" to the appellant. It was put that the appellant would not be able effectively to answer the allegations, save by a general denial. The trial judge, after reference to the relevant authorities, reached the view that "on balance the degree of prejudice to the accused outweigh[ed] the probative value of [any such] evidence". He therefore ruled that evidence of other similar events should not be admitted. He said:

Obviously that will require the Crown to firmly instruct the prosecutrix to that effect.

Neither party should form any view as to what my reaction or ruling might be, if it becomes necessary to make such a ruling, about a discharge of a jury. I will treat any situation that inadvertently arises on the merits.

The trial proceeded on this footing. The examination and cross-examination of the complainant proceeded with only one hint of a departure from the judge's ruling. This occurred during cross-examination of the complainant about the sexual misconduct of which the appellant was later convicted. The complainant answered the question as to what the appellant had done:

The first time he was half sort of leaning, half kneeling on the bed and he started playing around with me as usual. (Emphasis added.)

Sensibly, this slip was allowed to pass. Obviously, any exploration of it would have breached the judge's ruling and would have been perilous to the appellant whose case was one of complete denial of the alleged events and a suggestion that the complainant was "disturbed" and lying.

But then, in re-examination, the prosecutor led the complainant to a much more serious departure from the judge's ruling:

Over the years that he was doing these sexual things to you, did you see any way open to you to get him to stop him doing these things to you? - Yes, I did.

What was that? - Are you meaning something I could've done to stop him? Yes? - What I was going to do is the next time that he ejaculated in my mouth, I was going to keep it, put it in a jar and take it with me and that was my proof that he definitely did it because I knew he'd be able to lie through his teeth. I knew that he'd make it look as if it was all bullshit. That was the only thing I thought that I could do to have definite proof against him.

Did that happen again? - It happened many times but I never had the opportunity to do anything about it.

It was with these questions that the evidence of the complainant was concluded. The judge adjourned the trial for the weekend and until the following Monday afternoon. After the jury had departed, counsel for the appellant immediately applied for a discharge of the jury. He submitted that the questions eliciting the references to the prior sexual misconduct, involving penetration and ejaculation, had been deliberate and was "a stunning way to end the Crown case". Even if the questions had begun inadvertently, they had been pursued "amazingly" and were bound to elicit the prejudicial answers that were given. They were contrary to the judge's ruling forbidding the admission of such evidence.

Judge Williams refused the application. He indicated that the "correct course" was for him to give the jury a warning, before the trial proceeded, that:

Insofar as the complainant has at any time during her evidence gone outside the ambit of the specific complaints against the accused, such references are irrelevant and should be totally excluded from your consideration. Obviously, the appellant was in a difficult position so far as the warning was concerned. Any specific reference to the evidence, and repetition of it, would simply underline its importance and reinforce the possible prejudice. But any generalised statement, such as the judge suggested, would run the risk of missing the target of prejudice which it was the object of the direction to cure.

When the jury returned after the weekend, the judge directed them in the manner foreshadowed. Later, in his final charge to the jury, Judge Williams repeated the direction in terms that were acceptable and proper, so far as they went. In the Court of Criminal Appeal, the appellant argued that the prejudice he had suffered by the questions and answers in re-examination of the complainant was so serious that a general direction of the kind given was inadequate to repair that prejudice. Consequently the discretion to refuse an order discharging the jury had miscarried, resulting in a mistrial.

The Court of Criminal Appeal rejected this submission. It acknowledged that the trial judge had a discretion; that the criterion for its exercise was the maintenance of the fairness of the trial; and that the test for discharge of the jury was one of necessity: [13]

The question is whether in the circumstances there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. That is to say, was the discretion wrongly exercised in that the judge was bound to discharge the jury?

His Honour obviously thought that any prejudice to the applicant which the complainant's answer might have aroused could in the circumstances be overcome by the warnings which he in fact gave to the jury. We cannot say that he was wrong in so concluding.

R v Crofts (unreported; 8 May 1995) at 8-9; R v Boland [1974] VR 849 at 866.

It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? [14] In our view, in the particular circumstances of this case, that could not be said.

Glennon v The Queen (1994) 179 CLR 1 at 8-9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521.

The peculiar importance of the reference to other events of the kind described by the complainant will be appreciated when it is realised that four of the five counts upon which the appellant was convicted by the jury (counts 4-7 inclusive) were the only ones in the presentment, with the exception of count 9, which alleged sexual penetration. There was therefore a clear reference by the complainant, in the presence of the jury, to the "usualness" of the appellant's conduct, including penetration, which went beyond the matters upon which the prosecution had elected to charge him. This was contrary to the judge's ruling at the outset of the trial. It might be inferred that appropriate instructions would have been given by the prosecutor to the complainant to conform to that ruling. The statements were also highly prejudicial and inflammatory, especially as they came at the end of the complainant's testimony. They would have been left vividly etched on the mind of the jury over the long weekend adjournment which immediately followed.

There are two other considerations which do not appear to have been taken into account, or adequately taken into account, in the Court of Criminal Appeal's decision on this point. The first is that it was specially difficult in this case for the judge to fashion a direction to the jury which would help them to eradicate from their minds the highly prejudicial statement of the complainant. It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account. The difficulty in this case was that the judge could not, and did not, refer specifically to the evidence which was so prejudicial because to do so would have reinforced the prejudice. In some cases it is possible for the judge to refer to the inadmissible evidence and to explain why it must be excluded. That course was not open in this case and for that reason was not followed.

Furthermore, there is no indication that proper weight was given to the fact that the objectionable evidence followed an apparently deliberate course of questioning by the prosecutor when it was plain that he was on most perilous ground. In the lead-up to the offending evidence, counsel for the appellant repeatedly objected to the prosecutor's questioning of the complainant on general sexual matters. Repeatedly, he stated that the questions did not arise out of his cross-examination. Clearly, he was alert to the danger of opening up the very evidence of similar facts which had led to the preliminary ruling at the commencement of the trial. His objections would have alerted the prosecutor. Yet the latter pressed on and ultimately came to a question of such generality ("Over the years that he was doing these sexual things to you ") that it was bound to lead an inexperienced lay witness into answers of generality. The very last question ("Did that happen again?") was as deliberate a question as could be imagined to open up the answer that, inevitably, followed. The application for discharge was immediately made. The trial was then in its second day.

With all respect to the trial judge and the Court of Criminal Appeal, a proper consideration of the factors relevant to weighing the prejudice to the accused, the danger to the fairness of the trial and the risk that such danger could not be eradicated by instruction to the jury necessitated, in this case, an order of discharge. Otherwise, the Court would sanction a real risk that the appellant might have been convicted on the basis of the prejudicial evidence about sexual misconduct "many times". This was not charged in the counts of the presentment. It was of a different character to the counts on which the appellant was acquitted. And it was produced by questioning which appears to have been deliberate and fraught with the danger of producing the result that predicably ensued.

The foregoing error has been dealt with first because, chronologically, it arose first. But a more significant error, requiring the same conclusion, occurred in the judge's directions to the jury on the relevance of the delay on the part of the complainant in making a complaint about the appellant's misconduct.

As has been stated, that delay was some six years from the occurrence alleged in the first count of the presentment. It was six months after the last such occurrence. By the measure of cases of this kind, that was a substantial delay. The jury were entitled to accurate assistance by the trial judge concerning the legal significance of the absence of complaint soon after the alleged incidents.

It is clear that the trial judge was very mindful of his obligation to conform to a change in the law of Victoria as to the warnings to be given to a jury in cases of this sort, involving allegations of sexual misconduct. The relevant provision, inserted into the Act in 1991, reads:

(1) On the trial of a person for an offence under Subdivision (8A), [15] (8B), [16] (8C), [17] (8D) [18] or (8E) [19] or under any corresponding previous enactment

(a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and

(i) warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and

(ii) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in complaining about it.

(2) Nothing in sub-section (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.

This provision is in some respects similar, but not identical, to provisions enacted in other States of Australia which have previously been considered by this Court. [20] The purpose of such provisions, stated generally, is to alter the rule of practice or of law which previously existed, under which judicial warnings were required in the trial of sexual offences as to the danger of convicting the accused in the absence of corroboration of the testimony of the complainant and where there was delay in the making of a complaint. In Longman v The Queen, Brennan, Dawson and Toohey JJ explained: [21] The mischief at which the provision appears to have been aimed is the adverse reflection which a warning "required by any rule of law or practice" casts indiscriminately on the evidence of all alleged victims of sexual offences, the vast majority of whom are women, and the corresponding protection which the giving of a warning confers on an accused in all cases of sexual offences. It is evident that the legislature regards the reflection as unwarranted and the protection as unjust. If the alleged victims of sexual offences, as a class, are not regarded by the legislature as suspect witnesses, judges should no longer warn juries that allegations of sexual offences are more likely to be fabricated than other classes of allegations. 1. Rape and indecent assault. 2. Incest. 3. Sexual offences against children. 4. Sexual offences against people with impaired mental functioning. 5. Other sexual offences. 6. See, eg, Longman v The Queen (1989) 168 CLR 79 at 95; M v The Queen (1994) 181 CLR 487 at 514. 7. Longman v The Queen (1989) 168 CLR 79 at 85-86.

In the subject trial, the judge, on a number of occasions, referred to the absence of evidence of prompt complaint and to the delay in making a complaint although there was opportunity for the complainant to do so. Relevantly, he said, in the first of two passages upon which attention was focused:

Coming down to this particular case - and I will deal with this again in a different context, but it is valid to deal with it here under the heading of inferences - one inference you should not draw, as a matter of law, [i]n this case, for the reasons I will mention later, is that because the complainant did not complain about the offences immediately after they happened, that they did not happen or that she was not bothered by them or that she consented - not that consent is an issue in this case, but you would not be entitled to draw those inferences. And I will explain that, under a different heading, later. (Passage 1.) Subsequently, his Honour said: The second matter - and I adverted to this earlier, but I am now giving you the formal direction, relates to the delay in making the complaint. The law requires me to give you this advice, but again, when fully considered, it is a matter that accords with commonsense and human experience. Delay in complaining in sexual abuse cases does not necessarily mean the allegations are false; there may be good reasons why victims of sexual assaults hesitate in making complaints about them. The experience of the law confirms that complaints are often not made immediately after sexual assaults. [The prosecutor], in his address to you, suggested that she was young, confused, [had] feelings of guilt, fear of disbelief, fear of family upheaval, fear of accusation against a family friend. [These] were all suggestions that were put forward that may explain such a delay, and there may well be others. Experience has shown that it is not uncommon for such a delay and the law requires me to say that it does not necessarily mean the allegations are false. (Passage 2.)

It was accepted that Passage 2, taken in isolation, represented an unexceptionable instruction to the jury in accordance with s 61(1)(b) of the Act. But the complaints of the appellant were that:

The instruction in Passage 1 was erroneous in law, in that it directed the jury "as a matter of law" that the lack of complaint about the offences immediately after they happened would not permit of an inference that the offences did not happen, that is, that the complainant was lying about them.

Moreover, when the direction in Passage 2 was given, the erroneous direction of law was not corrected. The jury were not given instruction that the absence of early complaint could be used by them in their assessment of the credibility of the complainant. The result was that the direction properly given under s 61(1)(b) of the Act was unbalanced and unduly weighted in favour of the prosecution. Whereas in many cases the failure of a judge to redress this balance might be protected from appellate interference by the clear intention of s 61(2) of the Act to afford the judge a discretion to make comments on evidence appropriate "in the interests of justice", in this case an affirmative duty was imposed upon the judge by the terms in which he had given the earlier instruction in Passage 1. That duty was both to correct his misconstruction of s 61(1)(b) of the Act and, in pursuance of the power reserved to him by s 61(2), to make comment on the evidence necessary in the interests of justice because of the considerable delay in the making of a complaint.

Counsel for the appellant, at the conclusion of the first part of the judge's charge and on the retirement of the jury, reserved the objections now under consideration. He submitted that s 61(1)(b) of the Act was enacted "to make sure that the obverse is put to the argument that there has been delay in complaint and the argument about delay in complaint is that indeed it may well mean that the complaint is false". He asked the judge to balance the instruction to the jury and to tell them that "the lack of a recent complaint is something that the jury can use to found an inference, that inference being that the allegations are false".

Judge Williams declined to do this, considering that any such instruction would run counter to the requirements of s 61(1)(a) of the Act. He regarded the request as one which asked him to do "exactly what I am not supposed to do". The appellant submitted that this represented a misconstruction of the section, read as a whole.

The Court of Criminal Appeal briefly dealt with this complaint and the assertion that it had led to a substantial miscarriage of justice. For their Honours, this was a matter in the discretion of the trial judge as:

[w]hilst the judge might have given such directions as the applicant now contends were obligatory, it was not necessary that he do so. He had already given in correct terms the general direction as to how the jury might draw inferences and the use that could be made of such inferences. The only compulsion that was imposed upon [him] was that which arose from the terms of the section.

He said what those terms dictated should be said. Beyond that he was not required in law to go. We cannot think that his failure to comply with the applicant's counsel's request has misled the jury or led to any miscarriage of justice. We are of [the] opinion that these observations are not inconsistent with what this court said in R v Omarjee [22] .

(1995) 79 A Crim R 355.
1. (1995) 79 A Crim R 355.

The suggested misconstruction by the trial judge of s 61 of the Act was the principal point agitated by the appellant in the appeal to this Court. Put shortly, the appellant argued that the trial judge had made an error of law of the same character as this Court had explained in Longman. [23] The enactment of specific provisions altering the general rules of practice as to the directions given to a jury concerning the reliability of the evidence of alleged victims of sexual offences did not affect the requirement to give specific and particular warnings where they were necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. The appellant was correct. The Court of Criminal Appeal ought to have upheld the submission.

Shortly before the hearing of this appeal, the Court of Appeal of Victoria in R v Miletic [24] upheld a similar submission. It quashed convictions following a similar "unbalanced" direction to the jury. No reference was made in Miletic to the decision of the Court of Criminal Appeal in this case. The Court was correct in Miletic . It erred here.

Section 61 of the Act does not stand in isolation. It takes effect in the context of the conduct of criminal trials held, usually, before juries. It presupposes the overriding duty of the judge to instruct the jury accurately on relevant principles of law, to remind them of the pertinent facts and to make such comments on the evidence, for their consideration, as the interests of justice require.

Prior to the enactment of s 61 of the Act, the law concerning the instruction to be given to a jury in a trial of an accused for a sexual offence, where the complainant had failed to complain at the earliest reasonable opportunity, was considered by this Court in Kilby v The Queen. [25] In that case, it was suggested that the complainant had consented to sexual intercourse with a group of youths, including the accused. The complainant in that case did not make a complaint "until she told her mother of the events some considerable time later". [26] At the trial, counsel for the accused asked for a direction that because there was no fresh complaint, that fact was evidence of consent. The direction was refused. The refusal was affirmed by the Court of Criminal Appeal of New South Wales. [27] This Court refused special leave to appeal but provided extended reasons which dealt with delay in complaints more generally.

(1973) 129 CLR 460. 2. Kilby v The Queen (1973) 129 CLR 460 at 463. 3. R v Kilby [No 2] (1970) 91 WN (NSW) 849.

In the course of his reasons, Barwick CJ [28] explained the proper practice to be observed by a judge, where the evidence establishes delay in the making of a complaint:

It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given. 1. Kilby v The Queen (1973) 129 CLR 460 at 465.

In tracing the course of legal history on the relevance of timely complaints in trials of persons accused of sexual offences, Barwick CJ [29] referred to, and quoted from, Wigmore on Evidence: [30]

Down to the beginning of the 1800's, evidence of this sort was received by the courts as a matter of old tradition and practice, with little or no thought of any principles to support it. The tradition went back by a continuous thread to the primitive rule of hue-and-cry: and the precise nature of the survival is more fully explained in dealing with the hearsay exception of "res gestae". But as more and more attention began to be given, in the early 1800's, to the principles underlying every sort of evidence, there came to be felt a need of explaining on principle this inherited and hitherto unquestioned practice; and thus the various aspects of its significance began to be thought of. 1. Kilby v The Queen (1973) 129 CLR 460 at 466-467. 2. 3rd ed (1940), vol 4, p 219 (par 1134).

In England, complaint, or the absence of it, was admissible in the trial solely for the effect it had on the credit of the prosecutrix. [31] In R v Lillyman, Hawkins J, citing Blackstone, said: [32]

but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance: if the witness be of good fame; if she presently discovered the offence, and made search for the offender these and the like are concurring circumstances, which give greater probability to her evidence. But, on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place, where the fact was alleged to be committed, was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned. It was after an examination of this line of reasoning that Barwick CJ (with the concurrence of McTiernan, Stephen and Mason JJ) rejected the assertion for Mr Kilby that a want of complaint provided affirmative evidence of consent to the intercourse: [33] In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not found an inference of consent. It does tell against the consistency of the woman's account and accordingly is clearly relevant to her credibility in that respect. Although the actual decision in Kilby turned upon a disputed confession signed by the accused, the statement of common law principles contained in the judgment of Barwick CJ, as to the significance of a want of timely complaint, was accepted thereafter as stating the applicable law. In appropriate cases juries were told that the absence of timely complaint (if that be their conclusion) was relevant to the credibility of the complainant and a fact to be considered in evaluating the consistency of the complainant's evidence. There might be "many reasons" to explain why the complaint was not made promptly. It was for the jury to weigh up those possible reasons. But it was also for the jury to weigh up the significance of the delay in complaining. 1. R v Lillyman [1896] 2 QB 167. Note the reference to this passage in M v The Queen (1994) 181 CLR 487 at 514, per Gaudron J. 2. R v Lillyman [1896] 2 QB 167 at 171, citing Blackstone's Commentaries on the Laws of England, 4th ed (1770), vol 4, p 211 (c 15). 3. Kilby v The Queen (1973) 129 CLR 460 at 472.

Provisions such as s 61(1)(b) of the Act are not, in their terms, addressed to a fundamental alteration of the balance suggested both by commonsense and by the decision of this Court in Kilby. That this is so is clear from the terms of s 61(1)(b) itself. The two subparagraphs within it merely require that the judge should warn the jury that delay in complaining does not necessarily indicate that the allegation is false and that there may be good reasons for hesitation in complaining. The existence of such reasons had already been acknowledged by Barwick CJ in the passage cited. The use of the adverb "necessarily" is critical to the operation of s 61(1)(b)(i). Delay in complaining may not necessarily indicate that an allegation is false. But in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false.

That this is the correct construction of s 61(1)(b) is confirmed both by the obvious relationship between the two sub-paragraphs within it and also by the express provisions of s 61(2) by which there is reserved to the judge the entitlement to make any comment "that it is appropriate to make in the interests of justice". Such interests obviously focus attention upon the facts of the particular case. The reservation of such an entitlement to comment makes it plain that the abiding judicial duty to assist the jury in the weighing of the potential significance of delay in complaining, in the circumstances of the particular case, remains.

The precise question presented by this appeal arose in New South Wales soon after the passage of the equivalent reform in that State by the insertion of s 405B in the Crimes Act 1900 NSW by the Crimes (Sexual Assault) Amendment Act 1981 NSW. In R v Davies [34] , in the New South Wales Court of Criminal Appeal, Hunt J (with the concurrence of Slattery CJ at CL and Carruthers J) held that the principles laid down in Kilby were not affected by the statutory reform analogous to that in s 61 of the Crimes Act 1958 Vict. He said: [35]

I am unable to see from the statute generally any legislative intention to preclude the trial judge - as a matter of common fairness - giving directions on the other side of the coin to those required by that section. Making obligatory the giving of directions that there may be good reasons for the absence of a complaint or for the delay in making it, whether or not such reasons were suggested in the evidence, is certainly to be seen as tilting the balance in favour of the complainant - no doubt because of the difficulty she may often have in articulating those reasons herself - but it should not be seen as standing the law on its head to exclude what in common fairness and common experience should be taken into account in favour of the accused. 1. (1985) 3 NSWLR 276. 2. R v Davies (1985) 3 NSWLR 276 at 278.

In R v Omarjee [36] , the Court of Criminal Appeal in Victoria followed Davies in a case where the accused's submission was that the trial judge had erred in failing to direct the jury that the absence of complaint over a period of some three years, or the delay in making a complaint during that time, might be taken into account by the jury in evaluating the evidence of the complainant and in determining whether or not to believe her. Notwithstanding s 61 of the Crimes Act 1958 Vict, the Court held that: [37]

[A] trial judge should as a general rule give a direction in accordance with Kilby being a direction which, the applicant asserted, the trial judge here had failed to give. In our view, no reason appears why the general rule should not apply here. 1. (1995) 79 A Crim R 355 at 368. 2. R v Omarjee (1995) 79 A Crim R 355 at 368.

In R v Murray [38] a qualification upon the rule in Davies was suggested in the New South Wales Court of Criminal Appeal by Lee J (with the concurrence of Maxwell and Yeldham JJ). The delay in complaining in that case was two days. The Court held that the trial judge's direction that the absence of immediate complaint might be, but was not necessarily, a ground for rejecting the evidence of the complainant was adequate to conform both with the statute and with the requirements of Kilby and Davies . There had been no cross-examination of the complainant with regard to the suggested lateness of the complaint nor any suggestion made to her that there had been a failure on her part to take timely action. Lee J observed: [39]

The law does not lay down any defined direction in regard to the lateness of a complaint and in my view it is a matter in every case for the trial judge, in his own judgment, to determine whether anything more is required than what is in fact contained in s 405B(2). Each case should be looked at on its own facts and the extent of the delay and factors bearing upon the likelihood of the complaint being a false one should be taken into consideration. In the present case complaint was made to the police within two days and there was nothing in the overall circumstances to suggest that it might have been fabricated. 1. (1987) 11 NSWLR 12. 2. R v Murray (1987) 11 NSWLR 12 at 18.

There is no analogy between such a case and the present. Here, the delay was objectively substantial, being a matter of years. Delays of that order require a trial judge to give "the jury a direction which [is] meaningful, and which [is] adequate to enable the jury to make a responsible evaluation of the matter". [40]

R v Preval [1984] 3 NSWLR 647 at 651, per Street CJ.

The settled authority in Victoria, save for this case, is similar to that in New South Wales, as expressed in Davies . In this respect, Omarjee [41] and Miletic [42] are consistent. This case is not. Although it was asserted by the Court of Criminal Appeal that the decision in this case was compatible with Omarjee , there is no justification for that assertion. More importantly, the reasons which dictated the conclusions in Omarjee and Miletic apply in this case. A Kilby direction was sought and denied. The erroneous direction required, as counsel for the appellant sought, a clear redirection. Nothing less would have restored the balance envisaged by the language of s 61 of the Act and affirmed by the many decisions since its enactment.

(1995) 79 A Crim R 355. 2. Unreported; Supreme Court of Vict (Court of Appeal); 9 August 1996.

As the Victorian Court of Appeal pointed out in Miletic [43] , no other approach to the construction of s 61 of the Act would be compatible with the approach of this Court in Longman. [44] That decision makes it clear that the purpose of such legislation, properly understood, was to reform the balance of jury instruction not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses. [45] It was simply to correct what had previously been standard practice by which, based on supposed "human experience" and the "experience of courts", judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to "sterilise" complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. [46] The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. [47] It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts. [48]

Unreported; Supreme Court of Vict (Court of Appeal; 9 August 1996, 17-20, 22-24. 2. (1989) 168 CLR 79. 3. Longman (1989) 168 CLR 79 at 86-87. 4. Longman v The Queen (1989) 168 CLR 79 at 86, citing R v Pahuja (1987) 49 SASR 191 at 199, per King CJ; R v Miletic (unreported; Supreme Court of Vict (Court of Appeal); 9 August 1996) at 20. 5. cf M v The Queen (1994) 181 CLR 487 at 515, per Gaudron J. 6. Longman v The Queen (1989) 168 CLR 79 at 86.

Had the Victorian Parliament intended to overrule the practice followed in Australian courts, at least after Kilby, s 61(1)(b) would have been expressed in much clearer language than appears. This view of the section is confirmed by the presence in it of s 61(2) and by the established construction of the equivalent section in New South Wales at the time the amendment to the Victorian Act was adopted in 1991.

Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness. [49] The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false. So long as the purpose of the legislation, to rid the law of such stereotypes, is kept in mind, and the terms in which the legislation is expressed are followed, judges striving to assist juries in their consideration of the facts are unlikely to fall into the kind of error that occurred in this case.

R v Murray (1987) 11 NSWLR 12 at 18; M v The Queen (1994) 181 CLR 487 at 514-515.

The Crown sought to sustain the appellant's convictions upon the arguments that the directions given had to be understood in context; that the provision of a Kilby warning is not mandatory in every case but depends upon all of the circumstances; that the instruction complained about was given as a mere illustration of the process of drawing inferences; and that the Court should respect the advantages enjoyed by the trial judge to assess the need for a Kilby warning in the context of the facts elicited at the trial. None of these arguments adequately meets the complaints of misdirection and of the lack of balance in the judge's remarks to the jury. This is hardly surprising given that the judge appears to have thought, erroneously, that after the enactment of s 61, the warning previously required in appropriate cases by Kilby was not only not appropriate but was no longer permissible. In that conclusion, his Honour erred. The resulting instruction was therefore unbalanced. Moreover, it was incorrect in so far as it directed the jury, as a matter of law, that they could not take the considerable delay in complaining into consideration in weighing the credibility of the complainant.

If the judge refused to give a warning required by the general law, such refusal is reviewable on appeal. A fortiori if the judge gives a direction which is contrary to law and which might have affected the outcome, a mistrial will have occurred and the resulting conviction must be quashed.

The Court of Criminal Appeal erred in rejecting the appellant's appeal. Because an appellate court cannot know the process of reasoning of the jury, and must assume that the jury conformed to the judge's direction on what they were told was a matter of law, the verdict cannot stand. This is not a case where the proviso could be applied. [50]

Wilde v The Queen (1988) 164 CLR 365 at 373; S v The Queen (1989) 168 CLR 266 at 282.

On 14 August 1996, the Court pronounced the orders stated at the outset of these reasons. The appellant has already served a significant part of the custodial sentence imposed upon him. It is appropriate to repeat McHugh J's closing comment in Longman : [51]

In all the circumstances of the case, it is arguable that the interests of the public, the complainant, and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide. 1. (1989) 168 CLR 79 at 109.

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