Pate (a pseudonym) v The Queen [2015] VSCA 110

Pate (a pseudonym) v The Queen [2015] VSCA 110 - VSCA 2015 case summary — Zoe

[112]

Dealing in the main with the evidence about alleged complaint to [the complainant's mother] about a hurt or sore vagina, he said these things about that. That after the alleged first offence, she said that she had a sore vagina and it was her evidence - and he read from some of this - that she told her mother that her vagina was sore.

In cross-examination she added more detail. There was, in effect, another recollection of having showered and then having showed her mother. When [the complainant's mother] gave evidence, there was nothing from her mother in relation to that, no support at all. Further Mr Hill reminded you of the evidence of [the complainant], that she went to the doctor on the following day. There was no evidence of that from her mother.

This contrasted with, or must be measured against, the evidence given by Dr Underwood of occasions of being treated for a sore belly and vagina, but when she was aged between six and eight years, not at the relevant time. You might think that this is a critical matter. For example, the defence would be able to fix the date of the alleged offending and complaint about sore vagina, about when it was supposed to have occurred, but for the delay of 16 or more years since the offending.

...

Dealing further with the evidence about telling her mother of her sore vagina, she placed it, [the complainant], in the kitchen, the mother ... in the lounge. The mother said in the lounge on the next day after a dancing lesson. I mean, they were in bed because the hot weather had forced them to sleep in the lounge room, noting [defence counsel] said that the evidence of [the complainant] was that these things occurred when she was wearing her winter tracksuit pants, or uniform.

He put to you that it becomes clear that they are not talking about the same thing or event. You might think, [defence counsel] put to you, that [the mother] is talking about an earlier event when she, the child, was aged between five and eight, which caused consultation or treatment with Dr Underwood.

Further comparing the differences in their accounts, [defence counsel] took you to ... [the complainant's] evidence, that [her] mother put Vaseline on the area. On the next day she went to her doctor but in relation to a sore stomach because she didn't want to go to school. [The mother] described the conversation as having occurred on the Saturday morning, when of course there was no school, he put to you.

...

[Defence counsel] took you to further inconsistencies with [the complainant's] committal evidence, in which he said as to this conversation about a sore vagina attached to or related to a dancing lesson, that she was not sure, that she didn't think she'd told her mother about it. That is, [defence counsel] put to you, a different memory to the one she had or professed here.

At the committal, [defence counsel] reminded you, that as to the two incidents making out Charge 1 and 2, she said that they tended to blur into one whereas she definitely separated them in her evidence here. He took you to further comparison between [the complainant] and [her mother] on evidence of this occasion, of complaint about her vagina. [The complainant] said that the evaporative cooling system came into the house when she was considerably younger, perhaps five or six years.

Before that the family, when it was hot, commonly slept in the lounge area.

[The complainant's mother] said this was a hot night and they took their mattresses in there because there was an air conditioner in the lounge. You might think, [defence counsel] said to you, that - bearing in mind the combination or juxtaposition of these two pieces of evidence, that [the complainant's mother] is talking about earlier times, when the child was between six and eight years and taken to the doctor for a sore stomach. You can see, he argued to you, over time the risk of distortion and error. These are markedly different versions about what is said to be the same occasions.

...

Returning to [the complainant] and her complaint about a sore vagina, and the differences between her and her mother, he referred you to further evidence of [the complainant] at committal in 2011, about this occasion of complaint about her sore vagina, when she said at committal that she didn't think she told her mother. And that she didn't think she'd went to the doctor. You may well think that she is confusing an event related to a sore vagina with an earlier time when she was about five years.

[157]

The relevant disadvantage to an accused person has often been referred to as a forensic disadvantage. This also is a convenient shorthand for use by judges and lawyers_. But one should be careful not to allow the use of that expression to distract attention from the need to consider the circumstances of the particular case._ The expression is not one, in my opinion, which should be used with a jury, unless a careful explanation of what it means is given. There is a risk that jurors would not understand the expression, unexplained.

I conclude that s 34CB(1) abolishes the duty to warn a jury, along the lines indicated in Crampton, by reference to the adverse impact on the defendant's ability to defend a charge, attributable to the passage of time. The duty to warn might have arisen solely from the passage of time or from that, in some cases, other particular circumstances of the case. The obligation arose only when the accused was at a forensic disadvantage attributable to the passage of time. The abolition of that obligation leaves open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay. But a trial judge should not use this as a means of resurrecting the Longman warning in another form. It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person.

Section 34CB(2) creates a new affirmative obligation, to be discharged against the background that I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered 'a significant forensic disadvantage'. This is a decision for the trial judge.

It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused_. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant_. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost_. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so._ ... The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J: that is, the difficulty of testing the complainant's evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.

If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.

The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. ...

[159]

129 Taking the absence of a medical examination as an example, the judge should have done more to alert the jury to the palpable disadvantages to the appellant's capacity to defend himself. The complainant had said that the offending occurred in 1998, when she was 10 or 11 years old. After the first occasion of digital penetration, she went home and told her mother that her vagina was sore. Her mother had her take a shower. After the shower, the complainant's mother checked her vagina. It was inflamed. The complainant was 'confident' that her mother took her to the doctor the next day. No evidence was, however, called from any doctor who treated her at that time (although Dr Alan Underwood, who saw the complainant on 12 occasions between 1994 and 1996 gave evidence that on one occasion he had treated her for vulval irritation for which he could find no cause). In these circumstances, it would have been appropriate to tell the jury - although no particular form of words was required[41] - that the absence of evidence from the doctor whom the complainant consulted in 1998 meant that the defence was deprived of the ability to test the truthfulness and reliability of the complainant's account; and in particular, whether the evidence might have failed to support her account. Further, since evidence of a medical examination would have fixed the date of the alleged offence with some certainty, the appellant was deprived of any chance of raising an alibi, an opportunity that might have been available to him had the time of the complainant's medical consultation been identified with a modicum of precision. Had a complaint been made at the time of the medical examination, the appellant would have had the opportunity to explore the details of the allegations soon after they were said to have occurred. That opportunity was lost to him. These factors - alone or in combination - meant that the appellant was reduced to a simple denial, without the means to test the complainant's account effectively. The jury should have been directed to take these disadvantages into account - and to take care as a result - when considering the evidence of the complainant.

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