R v Aden & Toulle [2002] VSCA 79

[2002] VSCA 79

Court of Appeal (Vic)|2002-05-31|Before: PHILLIPS, BATT and VINCENT, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2002-05-31

Before

PHILLIPS, BATT and VINCENT, JJ.A.

Source

Original judgment source is linked above.

Judgment (63 paragraphs)

[1]

The applicant Toulle explained how he came to be with Aden in St. Kilda in the early hours of 20 April 1998. They saw the complainant. It was raining heavily. She came up to the car and without invitation got in, "as though she knew us before". She lifted up her legs "and showed us her body". She asked whether they were looking for a woman. Toulle translated for Aden. They then said they were. She said that if each gave her $50 she would please them. He translated for Aden and they both agreed. There was no discussion about time or, he said in cross-examination, what they would get for their $50. The woman said that she would go with them and they said they would go to their friend's place in Collingwood. They had only a limited conversation in the car. She told them that her name was Moushka or Mishka, he thought Moushka. Toulle gave evidence of the purchase of Scotch whisky in Lygon Street and of the purchase of cigarettes for the complainant and the dispute over the change. He said that after the complainant apologised he told her to get out of the car. He told Aden that she was making trouble and might be more trouble later. Aden was satisfied with her apology and they continued on. He also gave evidence of withdrawing $50 from the automatic teller in Carlton.

[2]

When they arrived at Farah's flat, Toulle could not hear what Aden and Farah were saying because Aden leaned inside the door, but he said there was no scuffle. When they were inside all three sat around on chairs and started drinking. Each poured his or her own drink. Nobody did anything at that stage. For a long time after that they sat down and were drinking and were happy. Toulle said that he thought it may have been for over an hour. Aden put the television on. There was not a lot of talk. When they started drinking the complainant asked for $50 each. Toulle produced his $50 and put it on the table, as did Aden. The complainant put the money in her purse. The complainant picked up that Aden did not speak much English, so she was speaking some words and then teaching him. She gave them her telephone number and name in writing, saying that they were very good people and could contact her by that number. This happened when they were sitting around drinking before "anything happened". There was no mention of the complainant's dog. Toulle may have told her that he worked in a factory and that Aden was a mechanic.

[8]

It is now possible to consider the grounds of proposed appeal. Mr. Selimi for the applicants described ground 1, which invokes Longman v. The Queen[1], as the principal ground. The complaint, as recorded in the outline of argument, was that the trial judge did not give the jury a "full Longman warning", namely, that in the circumstances of the case it would be dangerous to convict on the unconfirmed testimony of the complainant unless, having scrutinised that testimony with great care, the jury were fully convinced of its truth and accuracy. Nor indeed, it was complained, was any warning given in relation to the dangers of convicting either accused upon the complainant's evidence, which was variously described as uncorroborated, contradictory, unsatisfactory and unreliable. Thereby, it was said, there was a serious risk of a miscarriage of justice. It was submitted orally that the court should accept that an appropriate warning was required here "to avoid a perceptible risk of miscarriage of justice"[2]. That being so, the failure to take exception or to seek earlier a Longman warning or a variant of it was no bar to the upholding of this ground. Counsel accepted that the wording of the warning might be a matter of debate, though he strongly urged that the warning should refer to the "danger" of convicting on the complainant's evidence and require the jury to "scrutinise" it. It was submitted, correctly, that s.61 of the Crimes Act 1958 did not stand in the way of the giving of the direction sought in an appropriate case. Borrowing again the language of Miletic[3], counsel submitted that the nature and quality of the complainant's evidence, together with other factors, necessitated the warning propounded. By way of elaboration he relied on the factors enumerated in the outline of argument on ground 3, including the schedule of inconsistencies, to which I shall refer in due course, together with the claimed inconsistencies of the complainant's evidence with the medical evidence, Barnes' evidence and the applicants' evidence, which was said to be untarnished. The complainant's version was said to be improbable. Particular reliance was placed upon statements by her that the consensual sexual activity, for which there was a one hour booking, began about 6 a.m. and that the non-consensual activity lasted two hours, which was said to make her version completely irreconcilable with Barnes' evidence that he left his flat just after 7 a.m. Because she was wrong as regards time one should doubt her recollection of events, he submitted. Counsel relied on the cumulative effect of all the inconsistencies.

[9]

In my judgment, for the reasons which follow, a Longman warning, whether "full" or "partial", was not required in this case. I proceed on the footing that there was no confirmation or support, or in the old terminology corroboration, of the complainant's evidence, without expressing any view on whether the applicants' admitted hasty departure from the flat or the distressed condition in which the applicant met Barnes[4] was capable of constituting confirmation or support. As the judgments in Longman and Miletic show, whether a warning of the type under discussion is required depends on the circumstances of the particular case[5]. In the circumstances of this case there was not a perceptible risk of miscarriage of justice necessitating the direction in question. There was, in my opinion, no "identifiable factor or group of factors calling for [the] direction to be given"[6]. Whilst inconsistencies have been identified, they were not of a kind calling for the direction, for they were well within the ability of the jury to assess for themselves in the light of their own experience and with the benefit of counsel's addresses: Miletic[7]. In this regard they stand in contrast to the delay in prosecuting the appellant in Longman and the non-specific nature of the delayed complaints made in Miletic, the full significance of each of which would have been more apparent to lawyers than to a lay jury, with the result that a warning was in each of those cases held necessary. This was a case, of course, where there was not only no delay, but also an immediate complaint. The assessing of the significance of inconsistencies in evidence and the dealing with conflicts between the evidence of different witnesses are, as has been said more than once, the daily "stuff of juries"[8]. The specific suggestion that, for timing reasons, the complainant's version was improbable cannot be accepted. First, Barnes' evidence was not as straightforward as suggested: it was open to the jury to prefer his later statement in chief that he left his flat between 7 and 8 o'clock and to think the later end of that range more likely. Secondly, if her version was in essence true, the complainant had been traumatised. Thirdly, leaving aside the bank withdrawal and the purchase of whisky, all the times given by the complainant, Barnes, and the applicants were, as Vincent, J.A. pointed out during argument, simply estimates. One is left, then, with distortions or possible distortions as to time, which, as Phillips, J.A. stated in argument, are typical matters for a jury to assess. Importantly and finally, it is appropriate in the circumstances of this case to infer from counsel's not having taken an exception or sought the direction in question that the direction was not required: Miletic[9]; R. v. Wright[10].

[10]

Notwithstanding what has been said in the last paragraph, it is necessary to consider whether certain cases on which Mr. Selimi relied required the direction now sought to be given. In the forefront was Robinson v. The Queen[11]. Counsel relied on the passage from the judgment of Lee, J. in R. v. Murray[12] that was set out by the High Court[13] with apparent approval. Only two sentences from the passage call for comment. In one Lee, J., by a parenthetic remark, indicated that in all cases of serious crime judges stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. Here, the trial judge did that[14]. Lee, J. continued, "In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in ...". But I do not take his Honour, or the High Court, to have meant that what is customary is in fact obligatory, and I think that the last sentence in the passage from R. v. Murray, which I do not trouble to set out, shows this to be the case. There is nothing else in Robinson which would support the conclusion contended here for the applicants. The circumstances leading the High Court to hold in that case that a Longman direction was required were quite different from those here. They included the age of the complainant at the time of the alleged offences; the long period that elapsed before complaint, which, importantly, in turn meant that it was impossible for a medical examination to verify or falsify the complaint; and some possible suggestibility on the part of the complainant, besides inconsistency in some aspects of the complainant's evidence as to whether penetration occurred and other "special features" not present here. At one stage Mr. Selimi submitted that in light of Robinson, even if there were no unusual circumstances, trial judges should give the warning in question, but he immediately resiled from that because, as he acknowledged, it would be contrary to s.61.[15] In reply Mr. Selimi cited part of the reasons of McHugh, J. in Longman[16]. His Honour there said:

[20]

In those passages his Honour correctly told the jury all the elements of the offence of rape (though he did not mention the mens rea of indecent assault, but no complaint was made about this). He made it clear, however, that absence of consent and the existence of mens rea were not live issues "in respect of the acts charged". Now in this case the jury had before them two versions of what occurred in the flat. On the one hand, the complainant said that she supplied consensually the sexual services agreed on but, after that, she was detained against her will and the several sexual acts charged were committed upon her without her consent and in such circumstances that it must have been obvious to the applicants that she was not consenting. On the other hand, the applicants said that the only sexual acts that occurred were two acts of penile vaginal penetration, one by each of them, and that those acts took place in accordance with the agreement the three of them had made and accordingly, and in fact, with the consent of the complainant. In those circumstances, in my opinion, not only was there on the way the trial had proceeded no live issue, but there was no argument open[24], as to absence of consent and the existence of mens rea on the part of the applicants in respect of the acts charged. For, if the jury found that the applicants detained the complainant against her will after performance by them with the complainant's consent of the acts contracted for and found that the sexual acts charged occurred, they would inevitably conclude, as Vincent, J.A. pointed out during argument, that the complainant did not consent to those acts and that each applicant was aware of that or aware at least that she might not be consenting. Not only was no case of consent or absence of mens rea run by either applicant but, significantly, neither defence counsel asked the judge, in the absence of the jury or at all, to direct the jury that those matters were live issues and neither took objection to his Honour's charge on this score. Counsel's failure to seek the direction or take the exception strongly suggests that they saw no unfairness to their clients in this aspect of the charge and tends to confirm the conclusion to which I have come. In short, then, since the absence of consent and the existence of mens rea were not open on the evidence in relation to the acts charged, there was no departure from "the established rule that it is the judge's duty to put the defence fairly to the jury"[25].

[23]

The inconsistency asserted here is factual. Where such an inconsistency is said to arise between verdicts on different counts of the one presentment the test is one of logic and reasonableness. The applicants must satisfy this court that the two groups of verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v. The Queen[29]. Nevertheless courts have repeatedly expressed themselves as reluctant to conclude that verdicts are inconsistent in this sense. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted: MacKenzie[30]. In my judgment, this is not a case where the verdicts of not guilty demonstrate that the complainant's credibility or veracity had been undermined as was submitted for the applicants. For a start, the applicants had been found guilty beyond reasonable doubt on nine counts and were acquitted on three only. The case is quite unlike R. v. JGVR[31] on which Mr. Selimi placed reliance. In that case there had been verdicts of not guilty on all but one of the more than 13 counts. As pointed out by Winneke, P. and Charles, J.A. in R. v. J (No.2)[32], the jury's verdicts of acquittal do not amount to a positive finding that the events as recounted by the complainant did not occur, but show no more than that the jury was not satisfied to the requisite standard that the acts alleged in those counts occurred. Accordingly, it does not follow from the bare fact of acquittal on those counts that the verdicts on the other counts are insupportable. The judge had instructed the jury to consider separately the Crown case against each accused in respect of each count and it is open to think that the jury simply followed that instruction and applied to each count the requirement that all the ingredients must be proved beyond reasonable doubt: MacKenzie[33]. Moreover, it does not follow that the jury treated the complainant as unworthy of belief or untruthful on the counts on which they acquitted. For allowance must always be made for the possibility that the jury, which has convicted on a number of counts and acquitted on others, has accepted the complainant as truthful but has admitted the possibility of faulty recollection in some cases: R. v. J[34]. Secondly, the not guilty verdicts on counts 11 and 12 are readily explicable and that on count 10 is also explicable even if not quite so obviously. In the case of count 11, the complainant had made no mention of anal penetration to Dr. Gall, she had given different versions as to which of the applicants was the perpetrator and, even on her version, the penetration was for a very short distance. One or more of those factors might well have caused the jury to be doubtful. Likewise, in the case of count 12 the complainant had made an earlier inconsistent statement identifying Toulle as the perpetrator and had not mentioned the attempt to Dr. Gall. Count 10, like counts 11 and 12, was said to have occurred after Toulle returned to the room from, the complainant thought, the toilet. Toulle's absence forms a natural break in the sequence of events and the jury may have been influenced in their consideration of count 10 by their doubts about the other two counts in this group and particularly the temporally close count 11. Moreover, the complainant's allegations, whilst clearly amounting, if accepted, to indecent assault, were fairly general. It may also be that the jury, having decided to convict on nine counts and having doubts about counts 11 and 12, concluded that justice was sufficiently met by convictions on the first nine counts and so decided to take a merciful view of the facts upon count 10, as they were entitled to do: MacKenzie[35], citing R. v. Kirkman[36].

[26]

"(i) the complainant's evidence was uncorroborated; unsupported by other evidence; contained discrepancies, displayed inadequacies, was tainted and otherwise lacked probative force; (ii) the complainant's version of events was highly improbable, particularly in view of the fact that the complainant was allowed to take a telephone call during the alleged act of rape and did not make any complaint of rape to the caller; (iii) the complainant had access to her mobile phone at all material times and did not call the police; (iv) the complainant did not suffer any physical injuries which would have been consistent with the alleged acts; no medical evidence was called to support her allegations; (iv)[bis] the complainant was operating illegally as a street prostitute and gave inconsistent, contradictory and highly improbable evidence; (v) the complainant had given the applicants a note bearing her telephone number which is entirely inconsistent with the suggestion of non-consensual intercourse (see exhibit 2); (vi) the complainant was a heroin addict. The relevance of her heroin addiction was downplayed by the learned trial judge; (vii) the complainant had a number of criminal convictions[38]; (viii) the complainant admitted making inconsistent statements at committal; (ix) while the alleged rape was said to have been taking place, the complainant did not tell the applicants to stop, nor did she cry out for help, although Mr. Farah was in the adjoining room and heard nothing even though he was a light sleeper; (x) there were numerous inconsistencies on important matters in the complainant's evidence as illustrated in the attached Schedule A; (xi) the complainant's evidence strained credulity and lacked any credibility whatsoever; (xii) the learned trial judge omitted to bring the foregoing matters to the jury's attention and failed to caution the jury that it should carefully scrutinize the complainant's evidence before accepting it over the sworn evidence of the applicants; (xiii) no DNA or other expert evidence was called to analyse the content of the condoms with a view to assessing the veracity of the complainant's evidence; (xiv) the evidence of the applicants was untarnished by cross-examination and was consistent with their innocence; nor were either of the applicants seriously challenged in relation to the content of their evidence in chief in breach of the rule in Brown v. Dunn; (xv) the evidence of Mr. Farah was consistent with the applicants' innocence; the failure to call evidence from adjoining neighbours was also consistent with the inference that such evidence would not have assisted the Crown."

[30]

Assessing the evidence independently and applying the test laid down, I am quite satisfied, for the reasons which follow, that upon the whole of the evidence, including that of the applicants and the evidence that they had no prior convictions, it was open to the jury to be satisfied beyond reasonable doubt that they were guilty of the offences of which the jury found them guilty. There are, as already mentioned, inconsistencies between versions given by the complainant at different times and some unusual features, such as the use by the complainant of her mobile phone to receive calls during the period of non-consensual sexual activity. But save that the inconsistencies might be called discrepancies, I do not consider that the evidence called for the Crown contains discrepancies or that it displays inadequacies or is tainted or otherwise lacks probative force, certainly not in such a way as to lead me to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that innocent persons have been convicted. I have considered the various matters relied on and enumerated earlier and also the schedule of inconsistencies. Inconsistencies between versions which a complainant has to give to different tribunals of fact are not uncommon and, as Mr. McArdle for the respondent said, they happen in trials. Their evaluation is a matter par excellence for juries. Of the enumerated matters some are irrelevant, some are of no or very little weight, some overstate the evidence and some assume the applicants' evidence to be correct. As to item (ii), the complainant came very close to complaining to Harry, if she did not in fact make a partial complaint. The suggestion in item (iii) is, to my mind, unrealistic. Though the fact that the complainant took a call or calls on her mobile telephone during the period of what she said was non-consensual sexual activity may seem strange or even bizarre, that she took a call from Harry is confirmed by his subsequent attendance that day at the security office. Indeed, on the evidence available his attendance might well be thought to have been in response