R v Aristidis [1998] QCA 422

3 The character of the unlawful and indecent dealing alleged requires no more than a brief explanation: touching the complainant on her vagina, inserting a finger in the vagina, using a vibrator around the vagina, licking the vagina. There was evidence which was said to support the Crown case, given by a sister of the complainant who was about two years older than her. Both the complainant and her sister were mature women at the trial, the complainant being 29 years of age then and the sister 31.

4 It was pointed out by Mr A Kimmins, for the appellant, that there was some uncertainty as to whether the evidence relating to count 2 sufficiently established the commission of an offence in the period alleged, 15 October 1974 to 15 October 1976. That, however, is not a point of any real strength; a reading of the relevant evidence shows that it was open to the jury to find it proved that the relevant offence was committed during the period charged. An apparent discrepancy in the dates alleged relating to counts 3 and 6 is, however, a matter of more concern. As to count 3, said to have been committed during the 4 year span from 17 February 1974 to 17 February 1978, the complainant's evidence was to the effect that the appellant committed the offences in a utility motor vehicle; she gave evidence to the effect that during its commission her feet were on the tailgate. In cross-examination it emerged that she had made a statement to the police that the vehicle was a Suzuki Isuzu red cab utility which had certain writing across the top. Counsel for the appellant below (not Mr Kimmins) suggested that the appellant had no such vehicle until 1980 to which the complainant responded: "It must have been 1980 when he done it then, hey?". The appellant gave evidence that he acquired the Isuzu vehicle in 1980 and produced a document to support that assertion. He denied having committed the offence alleged in count 3 and denied all the other offences alleged, also.

5 Although the jury were entitled, if they saw fit, to conclude that the complainant had simply mistaken either the date of this offence or the vehicle in which it was committed, the matter assumed some importance in view of the difficulty which the appellant, as a person accused of offences said to have been committed many years before, was likely to have in producing solid evidence to support his denials. A similar problem arose with respect to count 6. That offence also was said to have been committed in a red Suzuki Isuzu utility. The complainant said in evidence:

"We were in the Isuzu which had a canopy on the back, and he opened up the back tailgate and lifted me up inside and got inside with me and then he shut the door . . .".

The complainant went on to explain the nature of the indecent dealing then alleged to have been committed.

6 Mr Kimmins argued that the complainant's suggestion that, if the Isuzu was bought in 1980, it must have been then that the offence constituting count 3 was committed is noteworthy because the complainant was in foster care on her 9th birthday, i.e. on 17 February 1978. She said that her contact with the appellant then ceased until she went back "to live with my mother the second time". There is no suggestion that anything untoward occurred during the complainant's second period of living with her mother.

7 As to count 8, the supporting witness, the complainant's sister, gave an account of the matter which differed from that given by the complainant. According to the complainant's sister the incident happened at night; the witness had occasion to go to the toilet but found the door shut; she asked if anyone was in there and got no answer. When the door opened the appellant walked out and the witness saw the complainant sitting on the toilet with her pants down around her ankles. As the appellant walked away the sister said to the complainant, "Did he touch you?" and the complainant answered "Yes". In contrast, the complainant said that the incident happened during the daytime, that when the door was opened her pants were up and she walked out, the appellant remaining in the toilet; according to the complainant the appellant was in the toilet with the door shut when the complainant told her sister that the complainant had been "touched".

8 There were other discrepancies, of lesser importance, relied on by Mr Kimmins. It is in our view fair to say that some of the judge's directions to the jury would have tended to make them think that matters of that kind were not of any real significance. With respect to the Isuzu motor vehicle, his Honour remarked:

"The identify of the vehicle is of course not an element of the offence, that is just an incidental circumstances (sic) where or in what vehicle it happened in if it happened in a vehicle".

With respect to count 8, the judge's directions included the following:

"Count 8 relates to the toilet in Bracket (sic) Ridge at the complainant's house . . . In relation to that count too [the complainant's sister] gave evidence saying that she had found them together in the toilet at Bracken Ridge".

The differences between the sister's account and that of the complainant, with respect to count 8, were not mentioned.

9 Shortly after his discussion of the evidence relating to all the counts the judge emphasised to the jury the difficulty the Crown was in because of the passage of time between the commission of alleged offences and the date of trial:

"Obviously there are difficulties in establishing at the present time with accuracy facts that occurred so long ago and those difficulties are increased when those facts occurred when the witness was a child. . . .

Now you may think that there is room for errors of recollection, perhaps significant errors of recollection arising in those circumstances. So the question of the reliability of the evidence given by the complainant and her sister is a matter of considerable seriousness. . . .

There are some matters as to which the complainant did make mistakes and then corrected them. . . .

That is just a matter of getting things out of order perhaps and is perhaps very understandable but it is something which has happened and may be attributable to the lapse of time . . .

The evidence about the Isuzu vehicle appears not to be accurate because such a vehicle was apparently not on the premises when the relevant offence is alleged to have occurred.

As I said to you before the fact that these inconsistencies arise is to be expected". (130, 131)

Of course, it was the appellant's case that none of the events complained of occurred at all. The judge's remarks about the difficulty the complainant was likely to have in recalling accurately events which had happened so long ago were, no doubt, correct. But what his Honour said might have been taken by the jury to assume that what the complainant said was fundamentally true and that discrepancies such as that relating to the Isuzu should be found to be "errors of recollection" and "perhaps very understandable". The appellant was entitled to have the jury consider the possibility that assertions by the complainant which the judge described as "mistakes" or "not accurate" were found in the evidence because the events described did not occur. His Honour was not, however, unconscious of the necessity of balancing the remarks he had made, which appeared to reflect a favourable view of the complainant's credibility, with some observations about the appellant's position. We shall quote selectively, rather than fully:

"In many cases where a complainant's evidence is basically the whole of the case against an accused - and this case falls into a similar sort of category apart from [the complainant's sister's] evidence which I'll mention in a moment, an accused person is placed in a somewhat difficult position because the complainant can give evidence of various events happening and, naturally, in giving that evidence, the complainant will give some detail of it. The evidence will, therefore, often give an air of plausibility to what is being said whether it true or whether it is accurate. An accused person in such a situation is often left with no option but, simply, to deny each allegation". (132, 133)

10 The contention that the judge's directions did not give an adequate warning to the jury relies substantially upon Longman, (above) a case which was similar in that the complainant there was aged 32 at trial and was 6 years old at the time of the first count and 10 years old at the time of the second, and as here the accused denied the allegations of sexual interference, in his evidence.

11 An important factual difference between Longman and the present case is that there no evidence corroborative of the complainant's allegations was led; here there was some evidence which the judge ruled was capable of being corroborative. Nevertheless, as it seems to us, the High Court's decision assists the appellant. The most relevant passages for present purposes are the following:

"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them . . . That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay . . . and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient." (Brennan, Dawson and Toohey JJ. at 91)

"Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences." (McHugh J. at 108, 109)

12 It will be seen that in each of these passages it is mentioned that the complainant's evidence was uncorroborated. Mr Kimmins challenged the judge's direction to the jury that some evidence given by the complainant's sister, mentioned above, was capable of corroborating her, but did not, it appears, press that submission strongly. It was with respect to count 8 that the sister's evidence gave details which, if they corresponded with the complainant's account, could have been regarded as strongly corroborative; however, for reasons we have set out above, one may question whether the sister's evidence really backed up the claimed recollection of the complainant, as to that count. With respect to count 5, the corroboration relied on was that the sister said that the appellant "had his hand in her bikini bottoms". That was consistent with the complainant's evidence, but did not directly support the specific details of sexual interference given in the complainant's evidence relating to that count. The case was, therefore, one in which such corroboration as existed was not of great strength.

13 In Crofts [1996] HCA 22; (1996) 186 C.L.R. 427, the High Court had to deal, again, with what should be said by the judge in cases of this sort, where there is delay in making a complaint about the sexual misconduct. The delay in that case was about 6 years from the first count and 6 months from the last. In the principal set of reasons one finds:

"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".

In the present case there was some evidence of complaint in that the complainant's sister, as we have mentioned, asked "Did he touch you?" on the occasion of the incident constituting count 8, and the complainant answered "Yes"; there was however no complaint made of such a kind as would be likely to lead to any step being taken against the appellant. In Crofts, reference was made to Kilby [1973] HCA 30; (1973) 129 C.L.R. 460, and the judges quoted with approval a dictum of Barwick C.J., as relevant to "complaints in trials of persons accused of sexual offences":

"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 circumstance of the case, ought as a general rule to be given". (p. 447 of Crofts)

14 Both Longman and Crofts, the leading High Court authorities on the question of delay in such cases as this, had in common that the Crown was able to rely upon a statutory provision which arguably made the warning contended for by the appellant unnecessary. In Longman it was a provision similar to our s. 632(2) of the Code and in Crofts it was a section designed to protect complainants in sexual cases against suggestions that they are an unreliable class of witness and against, to put it generally, directions giving too much encouragement to the jury to use delay in complaining against the complainant's credit.

15 Each of these cases is, strictly speaking, distinguishable from the present. In Longman there was nothing which could have been held to be corroborative, whereas here there was some evidence, not overwhelmingly strong, which could be thought to be corroborative. In Crofts it appears that there was no complaint whatever during the period of over six years after the date of the first count, whereas here there was some evidence of complaint, as we have mentioned. Nevertheless these decisions, and particularly Longman, appear to us to make it right to hold that the learned trial judge did not give the appellant the benefit of a sufficiently strong direction about delay. What his Honour said was, in substance, that delay can create difficulties for both sides in such a case; his Honour did not, with respect, say anything which would have conveyed to the jury the idea that the appellant's chances of a fair trial had "necessarily been impaired by the long delay", especially because the delay made it more difficult for the appellant to "explore in detail the alleged circumstances attendant upon" the occurrences complained of (Longman at 91).

16 Further, his Honour did not convey plainly to the jury that the complainant's claimed recollections of events occurring in her childhood were liable to distortion and that the "likelihood of error increases with delay" (Longman at p. 108). It is our opinion that, in general, where there are years of delay between the dates of sexual interference alleged to have taken place during the complainant's childhood and the making of such a complaint as to lead to action being taken upon it, it will commonly be appropriate to give a direction along the lines of Longman and Crofts. Application of the doctrine of those cases is made more difficult to apply in that the warning which should be given is one to be determined in the light of "the whole of the circumstances of the case" (Longman at 90). Although there was a complaint of a sort and evidence of corroboration of a sort, the length of delay here was so great that a direction should have been given unequivocally emphasising to the jury, as a factor against acceptance of the Crown case, the difficulties created for the defence by the delay, as well as the enhanced risk of the complainant's claimed recollections being unreliable.

17 Because of the absence of directions of this description the appeal is allowed and the conviction set aside. We do not, in the circumstances, order a new trial; there will be a verdict of acquittal on each count.