Jansz v The Queen [2010] VSCA 137

2 At trial, many of the facts were not in dispute. The applicant was born in Sri Lanka on 28 August 1963 and aged 41 years at the time of the alleged offending between March and July 2005. By the time of trial he was aged 45 years. He completed his education in Sri Lanka and married and had one child, AB, before separating from his wife when the child was about two years old. He emigrated to Australia in or around 1994 and found work as a motor mechanic/trades assistant with a motor dealership in Dandenong, whereafter he continued to work for the next 14 years. He had no prior convictions or relevant psychiatric or psychological condition. He did not give evidence at trial.

3 The complainant gave evidence at trial by VATE, pursuant to s 41G of the Evidence Act 1958. She deposed that she was born on 14 November 1990 and was aged 14 years at the time of the alleged offending. She said that, late in 2004, her mother began a relationship with the applicant and that the applicant became a frequent visitor to the house where the complainant lived with her mother and sisters. After a while, the applicant conveyed to her that he was sexually interested in her and he began to send her suggestive SMS text messages and to act familiarly towards her. The complainant said that she was impressed by the applicant's attention and responded to it favourably, and a sexual relationship developed from there. The complainant said that she used to steal out of her bedroom window at night to where the applicant was waiting for her in his car and he used to take her from there back to his flat in Dandenong where acts of penetration and other sexual conduct took place. Then he used to drive her back to her home in the early hours of the morning sot that could return to her room without being detected.

4 In May 2005, the Applicant's daughter, AB, came from Sri Lanka to live with the applicant in his flat. A friendship developed between AB and the complainant, and the Crown alleged that it provided an excuse for the complainant to go to the applicant's flat and stay for several days during the school holidays. AB gave evidence at trial that she observed the applicant to have a sexual interest in the complainant and she noted incidents of compromising circumstances.

5 The offences charged related to two discrete periods: the first before AB's arrival (what was described as the 'Night offending'); and the second after AB arrived (which was described as the School Holidays offending), as follows:

Rubbing the complainant's vagina (wilful indecent act)

Penetrating the complainant's vagina with penis (act of sexual penetration)

Licking the complainant's vagina (wilful indecent act)

Penetrating the complainant's anus with penis (act of sexual penetration)

Penetrating the complainant's anus with finger (act of sexual penetration)

Penetrating the complainant's vagina with his penis (act of sexual penetration)

Penetrating the complainant's vagina with penis (act of sexual penetration)

Penetrating the complainant's vagina with finger (act of sexual penetration)

Penetrating the complainant's mouth with penis (act of sexual penetration)

6 The complainant said that in or about July 2005 her mother asked her whether she was having a sexual relationship with the applicant and at that point she denied it. Then on 17 July 2005, she attended a two and a half week church group conference in the United States and while she was there she met a young man, Broderick Collins, although at that stage they were just friends. When she returned from the United States her mother took her to the police to investigate whether she had had a sexual relationship with the applicant and at that time she denied it to police. But in or about March 2006, Broderick Collins came and stayed at her home for about a week, while he was in Melbourne, and later they began to date. She said that, after they had been dating for about a month, she told Broderick Collins that she had had a sexual relationship with an older man. Shortly after that, she made a complaint to the police which resulted in the applicant being interviewed and later charged.

7 In cross-examination, it was put to the complainant and she accepted that the first person she told about her sexual relationship with the applicant was Broderick Collins. It was also put to her but she rejected that her complaint to Mr Collins was an invention calculated to stimulate his interest in her.

8 The complainant's mother gave evidence that she had first begun to suspect the complainant was becoming infatuated with the applicant when there were 'a lot of phone calls'. She said that 'at one stage I thought she was on the phone to AB and I grabbed the phone and found out it was actually [the applicant] that was on the other end of the phone calls'. She confirmed that she had later confronted the complainant as to whether the complainant was having a sexual relationship with the applicant, and, at that point, the complainant was adamant that nothing was occurring.

9 Under cross-examination, the complainant's mother said that when the complainant returned from the United States, she took her to the police station because of her concern that there had been some sort of sexual liaison between the complainant and the applicant, but that the complainant had denied it to the police. It was put to the complainant's mother and she accepted that she had previously described the complainant as 'a good liar'.

10 AB gave evidence that when the complainant stayed at the applicant's flat during the school holidays, she saw the complainant and the applicant 'always together hugging and kissing each other and just things like that...' She said that the complainant used to get changed, have a wash and get into one of the applicant's sweaters, and that she could see that the complainant was not wearing anything underneath. She recalled that one night, the complainant came into her room and said that she did not want to sleep with the applicant. She deposed that she did not know why and that, after about five minutes, the applicant came in and 'took her [the complainant] back'. After they had gone back, she heard several noises, and from what she heard, she inferred that the complainant and the applicant were together and sexual 'things were happening'.

11 AB said that she could not do anything or say anything to her father at the time: '...there was nothing I [could] do. I was just watching TV', until later when the applicant came in and shouted at her that the TV was too loud and to turn it off. At that point, AB said she told the applicant that she was really upset with what was happening and that this should not be happening, to which the applicant did not reply.

12 She said that after that week, the complainant sometimes came around to say hello but did not stay. She saw the complainant and the applicant hug and give each other a quick kiss and then the complainant would return. She said that she confronted the complainant on one occasion and: ' asked her that if this was for real and she said yes, that's she's been dating him [the applicant] for a while and that they were sleeping together before I came'.

13 In cross-examination, she said that she saw the applicant in bed with the complainant and engaging in inappropriate behaviour. She also said that the applicant had told her he was in a relationship with the complainant, and she repeated that the complainant had told her that she was having a relationship with the applicant. It was put to her that she was lying, but she denied it.

14 Broderick Collins gave evidence-in-chief of having met the applicant at the conference in the United States and that, in July 2006, after returning to Australia, he received a SMS text message from the complainant saying that she had had an affair with an older man and that she regretted it. He said that he had responded by text to the effect of whether she had considered going to the police. She had replied that she was not sure but later said that she had decided to go to the police, and he then had told her that it was a good idea and that he was proud of her.

15 The applicant's record of interview was tendered, but it was in effect limited to denials of the allegations put to him by the police.

16 The defence did not call any evidence. The defence case was simply that the complainant and AB were unreliable witnesses, that the alleged sexual relationship was a schoolgirl sexual fantasy and that the jury should not be satisfied beyond reasonable doubt that the applicant's relationship with the complainant was anything more than platonic.

Ground 1 - Miscarriage because of admission of irrelevant evidence

17 As the proposed grounds of appeal were originally structured, it appeared that it was going to be contended under proposed Ground 1 that the trial miscarried because of the admission the complainant's evidence that she complained to Broderick Collins in June 2006 of having had a sexual relationship with the applicant; the admission of Broderick Collins' evidence as to having received the complaint by SMS text message from the complainant in July 2006, stating that she had had an affair with an older man and that his name was 'Howard'; and the admission of the evidence of the complainant's mother that, 15 months after she had confronted the complainant with the suggestion of having had a sexual relationship with the applicant, and the complainant denied it, she had approached the complainant again and at that point the complainant admitted it.

18 At the outset of oral argument this morning, however, counsel for the applicant abandoned those contentions and announced that his sole complaint under Ground 1 would be that AB's evidence of the complainant having told her about her sexual relationship with the applicant should not have been admitted, and that its admission had resulted in a miscarriage of justice.

19 Nevertheless, in order to deal adequately with that contention, it is still necessary to say something first about the complainant's evidence of having complained to Broderick Collins in June 2006 and his evidence of what he told her.

20 It is rudimentary of course that a complaint is not admissible under the doctrine of recent complaint unless it is made at the first reasonable opportunity or as speedily as could reasonably be expected.[2] A complaint made more than a year after the alleged offences in the circumstances of this case - even allowing for the youth of the complainant - was anything but speedy. Consequently, there should have been no doubt that the complaint to Broderick Collins came too late to be a recent complaint and that, other things being equal, it would have been excluded as inadmissible self-serving hearsay.

21 In this case, however, it is apparent that the evidence was led with the agreement of defence counsel, because he wanted to make a point as how long it had taken the complainant to allege that she had had a sexual relationship with the applicant, and also to insinuate that she only made the complaint when she did because it was a fabrication calculated to endear her to Broderick Collins. A large part of defence counsel's final address to the jury was directed to that proposition. In other words, it appears that defence counsel made a forensic decision to allow the evidence to be admitted because he perceived it would give the applicant a better chance of acquittal than if it were excluded.

22 Thereafter, the judge correctly directed the jury on the way in which the evidence could be used and the ways in which it could not be used. In the judge's initial directions on the point, his Honour said:

Mr Collins seems to indicate that the complainant first complained about it to him and told him about this sexual relationship many month[s], long after she had returned from America. And because [of that] there is some evidence, if you like, a lack of immediacy and indeed not only a lack of immediacy, an initial denial as exploited by [defence counsel]...'[3]

And later, after the jury had retired to consider their verdict, his Honour of his own motion gave the jury a redirection, as follows:

...you heard the witnesses firstly [the complainant's] mother, the accused man's daughter and the man Collins, each say away from the court that [the complainant] had said that these events occurred. Now I want to make it perfectly plain, those utterances are just not evidence. The evidence that you are to act on and it is a matter for you is the evidence that you saw [the complainant] give [on the VATE tape] that is the only relevant evidence.[4]

23 By so directing the jury, his Honour told them in effect that the significance of the evidence was that it demonstrated a lack of immediacy of complaint in the way, defence counsel had argued, but that it was not evidence of the truth of the complaint.

24 Perhaps, it might have been preferable if, at the point of re-directing the jury, the judge had also reminded them that the significance of the evidence was that it demonstrated the complainant had delayed in making her complaint. But his Honour's task was not particularly easy. He needed to walk a fine line between stressing the significance of the delay and, at the same time, complying with the imperative of s 61(1)(b)(ii) of the Crimes Act 1958 that he not suggest that the complainant's credibility was affected by the delay, unless upon application of the applicant he was satisfied that there was sufficient evidence tending to suggest that the credibility of the complainant was so affected to justify the giving of such a warning.[5] Here there was no such application, despite the fact that the judge expressly drew attention to s 61(1A), and the need to direct the jury in accordance with it, and expressly asked defence counsel whether he sought any other direction in relation to delay.

25 Moreover, in the circumstances of this case, one can readily understand why counsel did not ask for a full blown Kilby direction.[6] For while it may have served to reinforce the effect of delay on the mind of the jury, it would have brought with it a reiteration by the judge of the many legitimate reasons there may be for an infant complainant like the complainant delaying as long as she did before making her complaint.

26 In the result, as it appears to me, defence counsel got more or less what he sought. He got the benefit of the evidence of delay, which apparently he wished to be admitted in order to insinuate that the complainant should not be trusted - and, as was to be expected, he made a great deal of that in the course of his final address to the jury - and he also got the benefit of a strong direction, with the full weight of the authority of the judge, that the evidence of complaint could not be used as evidence of the truth of the complaint.

27 The position here was thus like that in The Queen v Suresh,[7] where it was contended on appeal that a trial had miscarried because evidence of late complaint had been admitted without objection. In rejecting that contention, McHugh J said:

The appellant wanted the evidence of the complaint to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of the evidence had been rejected. The admission of the complainant's statement to her school friends therefore did not deny the accused a fair trial or result in a miscarriage of justice. On the contrary, by not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal.

28 Turning then to the evidence given by Broderick Collins, counsel for the applicant expressly disavowed a contention which was noticed in his outline of argument that Mr Collins' evidence was inadmissible. He maintained, however, that the judge misdirected the jury by the redirection earlier referred to, that the evidence of the text message of complaint which the complainant sent to Mr Collins was not evidence of the truth of the text message. I do not accept that submission.

29 In order to understand the re-direction it is necessary to be aware that the judge asked defence counsel whether he had any objection to Mr Collins' evidence and counsel responded that he did not.[8] As with the complainant's evidence of complaint, it is apparent that defence counsel made a forensic decision to allow Mr Collins' evidence about the text to be admitted in the hope of making as much as could be made of the fact that there was a long delay between the time of the offences and the time of first complaint.

30 Seen against that background, the redirection is readily comprehensible. It came very shortly after the direction that the significance of the complaint was the period of delay and, in that context, it would have been plain to the jury that it meant that the evidence of the fact of complaint, although significant as evidence of delay, was not evidence of the truth of the complaint.

31 I am strengthened in that conclusion by defence counsel's failure to take exception to the direction or redirection, or to seek any further direction on the point. It implies that defence counsel was satisfied that the jury did understand the effect of the directions and needed no further guidance on the point.

32 I pass over the evidence given by the complainant's mother, because there is no longer any complaint made about it. But I note in passing that the cross-examination of the complainant's mother was also dedicated to attempting to establish that the complainant was a liar.

33 That leads to the evidence of AB. Counsel for the applicant argued that her statement that the complainant told her she had been dating the applicant for a while, and they were sleeping together before AB came to Melbourne, was irrelevant and inadmissible. In counsel's submission, it was not sufficiently certain when the complainant told her that to be able to say that it amounted to a recent complaint. And in counsel's submission, there was no other basis on which it could have been admitted.

34 That submission faces difficulties at several levels. First and foremost, if the evidence were objectionable, defence counsel did not take the objection and, absent a contrary indication, it may be supposed that he thereby waived the objection. [9]

35 Secondly, similar considerations apply here as to Mr Collins' evidence of complaint. Possibly, the complaint to AB did come too late to be regarded as a recent complaint. But it appears that defence counsel chose not to object to it, because it suited him to have the evidence before the jury as part of his strategy of discrediting the complainant. As it emerges from final address, his argument was that, since the complainant maintained that the first person she told about the relationship was Broderick Collins in 2006, and that she did not tell AB about it, and since AB maintained that the complainant told her about it a year or so before the time when the complainant said she told Broderick Collins about it, the jury could not and should not believe either the complainant or AB.

36 Thirdly, as counsel for the Crown submitted the evidence was admissible because it went to rebut the suggestion of recent invention on the part of the complainant. That point, however, is more debatable. The absence from the prosecutors' final address of any suggestion that AB's evidence was relied upon in order to rebut the suggestion of recent invention, and the absence of any directions to the jury that they might rely upon it for that purpose, makes the point essentially academic.

37 In case it matters, I should say as well that counsel for the Crown submitted that the evidence was also admissible as evidence of contemporaneous state of mind and as to part of the res gestae. I reject that suggestion. The evidence was relied upon for its testimonial significance - the complainants state of mind was not a fact in issue - and the complainant's statement to AB could not be regarded as part of the res gestae, because it was not contemporaneous with an act constituting part of the sexual relationship alleged.

38 The important point, as I see it, is that defence counsel appears to have made a calculated decision to have AB's testimony before the jury, and he got what he bargained for. In short, by not objecting to the admission of the statement and then using it to support the defence theory of the case, the applicant exercised his right to a fair trial, and the admission of the evidence did not result in a miscarriage of justice.

39 Under cover of proposed Ground 3 of appeal, counsel for the applicant argued that the judge failed to summarise the evidence adequately and failed to summarise counsel's arguments adequately. I note at the outset, however, that there was no such complaint made at trial.

40 When charging a jury, a trial judge is required to decide upon the real issues in the case; identify the issues for the jury; direct the jury on so much of the law as is necessary for them to know in order to be able to resolve the issues; and relate the issues to the evidence.[10] In this case the judge did identify the issues and explain them to the jury. He also took them through each count seriatim, and identified for them the elements of each offence. His Honour reminded the jury too that the complainant had denied each allegation when put to him in his record of interview.

41 It is true that the judge did not recite the parts of the complainant's evidence relevant to each count. Instead, he referred to the fact that the prosecutor had taken the jury 'chapter and verse' through it, and stated that it was unnecessary in view of the brevity of the trial and the prosecutor's address to repeat it. It is also true that his Honour should have identified the evidence relevant to each issue. The authorities on the point are clear. With respect, the way in which the judge went about the task was not up to the standard it should have been.

42 That said, however, in this case a full recitation of the evidence appears to be the last thing which defence counsel would have wanted. Its only effect would have been to emphasise for a third time the points which had already been made against the applicant for the first time in the prosecutor's opening; then in the complainant's evidence, when she recounted the circumstances and detail of each offence; and then, again, in the prosecutor's closing address when he went 'chapter and verse' through her evidence relating each relevant part of it to each offence. In the circumstances, one must assume that defence counsel would have wanted nothing more than the jury to retire to consider their verdict, as soon as possible after the completion of his attack on the credibility of the complainant, without any further mention of the evidence of the offences. And that is what happened.

43 It follows that, in the circumstances of this case, given the brevity of the trial and the nature of the defence which was offered, I am unable to accept that the judge's failure to relate the evidence to the issues was productive of a miscarriage of justice.

44 At first sight, the suggestion that the judge failed to summarise counsel's arguments appears also to be concerning. His Honour told the jury that he did not intend to summarise the arguments because it was his experience that juries got bored with hearing his summaries. And if his Honour had left it at that, it would have been problematic. Authority is clear that it is the duty of a trial judge to summarise counsel's arguments and that, even where a case is short and the issues are clear, the summary must be accurate, even handed and include the principal evidence and fundamental arguments relied on by the parties.[11]

45 Upon closer examination, however, it appears to me that the brevity of the summary is not the problem which at first it appears to be.

46 Counsel for the applicant submitted that, in breach of his duty to summarise counsel's arguments, the judge failed to highlight specific points made by defence counsel about delay, the complainant's demeanour and hesitation in answering questions in the course of cross-examination, the smallness of the applicant's flat and the consequent improbability that the applicant would have engaged in sexual relations with the complainant there while AB was present, the manner in which the complaint gave her evidence, the improbability that the applicant would confess his relationship with the complainant to his daughter AB, the improbability that the complainant would have run the gauntlet of dogs and sensor lights at her mother's home in order to be with the applicant and not have been detected by her mother or her sisters.

47 I do not accept that contention. This was a brief case and many of the matters referred to by counsel go well beyond the sort of thing required to be included in any summary of argument, let alone the sort of concise summary which may suffice in a brief case where the issues are clear. In this case they were clear. The defence case was limited to a simple, albeit full-blooded, attack on the complainant's credibility, based on the fact that she had started out denying that she had had a sexual relationship with the applicant and later changed her story after she started dating Mr Collins; and an attack on the credibility of AB, based on an idea that she resented her father's control over her. The case thus came down to the complainant's oath and AB's oath against the denials offered by the applicant in his record of interview. Given the tenor of cross-examination, and defence counsel's final address, the jury cannot have been in any doubt as to what the debate was about.

48 Moreover, if there were any chance of doubt about it, and I do not think that there could have been, it was surely excluded by the following direction given by the judge, in effect, by way of summary of the overall position:

I mentioned again and again that the case has got to be decided on the evidence and that is central to your task. You have to make a judgment on the evidence that you are prepared to accept and you have seen in this case witnesses have been - the complainant has been cross-examined at the previous proceeding [the VATE hearing] and AB was cross-examined here and issue was taken with her evidence. You have heard counsel's argument addressing their submissions to you about it. [The prosecutor] commends the complainant and AB to you as witnesses of truth. [Defence counsel] addressed the argument to you: 'No, there are flaws in the glass. There are defects in their evidence that ought to raise in you a question as to whether or not you are prepared to accept their evidence'.

It is the fact that is central to your task as jurors. You must make a judgment about the evidence and you are perfectly entitled to say: 'Well, I wouldn't believe a word that witness said.' Alternatively, you are entitled to say: 'Well, after considering all of the arguments et cetera, I'm convinced that that witness is truthful.' ...Central to your task is to make a judgment about the evidence that you are prepared to accept because that is the material upon [which] you base you verdict.

49 Finally, and importantly in a case of this kind, defence counsel did not take exception to the brevity of the judge's summary or request any further summary, despite an express invitation by the judge to take any exceptions, and once again that implies that defence counsel was satisfied that the jury understood his contentions.

50 In the result I am not persuaded that the deficiencies of the charge resulted in a miscarriage of justice. All other grounds of appeal were abandoned during the course of argument. Consequently for the reasons I have given, I would refuse the application for leave.

51 I too would refuse the application to leave and I would do so on the basis of the reasons enunciated by the learned Presiding Judge.

52 I agree also with the reasons for judgment of the learned Presiding Judge.

53 The order of the Court is that the application for leave to appeal against conviction is refused.

[1] Of which the applicant was acquitted.

[2] R v Osborne [1905] 1 KB 551, 561; R v Munday [2003] VSCA 189; (2003) 7 VR 423, 427 [20]; R v Knigge [2003] VSCA 94; (2003) 6 VR 181, 191 [17]-[20]; Heydon, Cross on Evidence, Aust Ed [17270].

[5] Unless persuaded that there was sufficient surrounding evidence to suggest that the credibility of the complainant was so affected; cf. Kilby v The Queen (1973) 129 CR 460, 475; R v WEB ([2003] VSCA 205; 2003) 7 VR 200, 209, 279-3 [26]-[28].

[6] To which the judge made passing reference before redirecting the jury: T.86.

[7] [1998] HCA 23; (1998) 153 ALR 145, 151 [23]; and see also 148, [12]-[13], (Gaudron and Gummow JJ); and see R v Munro [2005] VSCA 260, [44]-[46].

[9] R v Radford (1993) 66 A Crim R 210, 232-3; R v Clark [2005] VSCA 294; (2005) 13 VR 75, 83[61]-[64]; R v Durobin [2008] QSCA 118,[62]-[64].

[10] The authorities are summarised in R v AJS [2005] VSCA 288; (2005) 12 VR 563, 577 [55], fn 28.

[11] R v Hammond [2009] VSCA 78, [59]-[61].