R v Arundell [1998] VSCA 102

[1998] VSCA 102

Court of Appeal (Vic)|1998-11-09|Before: TADGELL, CHARLES and CALLAWAY, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

1998-11-09

Before

TADGELL, CHARLES and CALLAWAY, JJ.A.

Source

Original judgment source is linked above.

Judgment (125 paragraphs)

[1]

The applicant did not give evidence at the trial. Consistently with the concessions he had made in the course of the police interview his defence was not to deny, but rather to admit, that he had had a sensual yearning for the complainant and that he had been responsible for some acts towards her which could support charges of indecent assault; but there was no concession that he had admitted at his interview any of the indecent assaults that had been charged. The question of sexual penetration remained centrally in issue. In his final address to the jury senior counsel for the defence in effect conceded that the applicant had admitted acts which could support count 3, and before this Court his counsel (who did not appear at the trial) expressly conceded that the jury had been entitled to be satisfied that the acts described in the complainant's evidence upon which the Crown relied to support that count had been admitted. The substance of count 3 was that, early in 1983, the applicant showed the complainant his house; that he took her to the bathroom, removed all of her clothes and then undressed himself; that he told her to lie on a towel on the floor; that he spread her legs apart and started rubbing his chest and his pelvis up and down her pelvis and stomach. The applicant admitted during his interview that some such conduct as that on his part occurred. He also admitted to the police that on an occasion such as that he ejaculated; but the complainant gave no evidence of that and it is unclear that his concession can be linked to the occasion charged by count 3.

[2]

[8]

I do not think that those remarks in R. v. Gallagher cover this case. Nor do I find it necessary to consider ground 1 as it is framed or the arguments that were addressed for and against it. The last of the nine substituted grounds is that the verdicts are unsafe and unsatisfactory. Save as to the verdict on count 3 (which counsel for the applicant conceded should not be set aside, there having been no miscarriage of justice occasioned by it) I consider that ground 9 should be sustained. I am of that opinion because, even if some aspects of the complainant's evidence might derive confirmation from the applicant's record of interview, the jury failed to receive from the learned judge a direction of a kind that was required in order, first, to warn them of the several very remarkable features of the case that demanded their particular scrutiny and, secondly, to advise them why the warning was necessary. As will appear, it cannot in my opinion be suggested that such a direction would not have served the interests of the applicant. On the contrary, I think that in this case his interests required it. The failure may very well have been - indeed it probably was - a result of the use by the judge and counsel alike of the expression "a Longman warning" as though it is a term of art with an inevitable signification. It is true enough that the terms "Longman warning" and "Longman direction" have, since the High Court decided Longman v. The Queen in 1989, passed almost into the vernacular of the criminal law, at all events in this State and in Western Australia: see, e.g., Robinson v. The Queen, Court of Criminal Appeal, W.A., unreported 30 April 1993, passim and R. v. Young [1998] 1 V.R. 402, passim. It would be unfortunate, however, if the usually convenient shorthand were to become a misleading trope. It really comprehends, or is capable of comprehending, warnings of many different kinds; and it will always be necessary to tailor to the requirements of the case at hand a warning that comes under its rubric. It is perhaps useful, when using the expression "Longman warning" (or "Longman direction") to distinguish between, on the one hand, the terms or type of a warning to the jury which the High Court in Longman's Case held to be necessary and, on the other, the circumstances which give rise to the necessity for such a warning and dictate its terms.

[13]

At p.89 their Honours made it clear that a conviction following upon an omission to give the jury a warning of the kind required by the general law will be rendered "liable to be quashed as unsafe and unsatisfactory if it be held that the refusal to warn left a perceptible risk of miscarriage of justice". In the last paragraph on p.90 of the report, the joint judgment referred to a number of "significant" circumstances of the case which drew attention to the danger of acting on the uncorroborated evidence of the complainant otherwise than by reason of her being an alleged victim of a sexual offence. These included the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged and the absence of complaint. At p.91 the majority set out what the jury should have been told by the trial judge. This passage has been described as "what is known as the 'Longman direction'": Biser v. The Queen (Court of Criminal Appeal, W.A., 7 October 1991). Then again, what was said by McHugh, J., at 108, or something along the lines of it, has been treated as "the Longman direction": Robinson v. The Queen, supra, at 19. The term a "Longman warning" has often been used by this Court as a convenient expression without the need to define exactly its signification. In the present case, however, a "Longman warning" was spoken of by the judge and counsel apparently on the assumption that it signified only a warning to the jury that, in the circumstances of the case, they should scrutinise with care the evidence of the complainant so far as it was uncorroborated. The Crown supported the view that no warning to the jury concerning corroboration was necessary; defence counsel contended that in any event the question of corroboration should be left alone; and the judge appears to have concluded that no warning of any kind referable to the special circumstances of the case should be given to the jury at all. Quite apart from the availability of corroboration, there were aspects of the complainant's evidence that, in my opinion, ought to have been the subject of a warning to the jury to scrutinise it with especial care before acting on it to convict.

[24]

Having chosen to give no specific direction to the jury about the concept of corroboration or the need for it, his Honour said nothing about it save to refer, towards the end of the passage I have just quoted, to "significant concessions" by the applicant. The reference suggests that the jury might think the applicant's concessions tended to confirm the complainant's allegations of indecent assault and, by inference, invites the jury to look for such confirmation. The passage does not appear to me to suggest that the jury might think that the applicant's concessions tended to confirm the allegations of sexual penetration. Indeed the context seems designed to draw a comparison in this respect between the counts of indecent assault, dealt with in the last of the three paragraphs from the charge that I have just quoted, and the counts of sexual penetration, dealt with in the first and second of those paragraphs. This was unfortunate. Even if it be thought that the applicant's concessions did not tend to confirm the complainant's evidence of penetration of her body by inanimate objects, it does not follow that such concessions as he made did not tend, despite his denials, to confirm the allegations of penile penetration. In his discussions had with counsel before delivering his charge the learned judge indicated, correctly as I respectfully think, that they did; and yet that is not, as I understand the words his Honour used to the jury, the impression that the charge was calculated to convey. It was, I think, an error to convey to the jury an impression that confirmation of the evidence about penile penetration might not be found in the applicant's record of interview. There was, of course, no other source of confirmation of that evidence, and the charge might well have been understood to mean not only that there was no need, but there was no point, in looking beyond the complainant's evidence in considering whether the Crown case on the counts of sexual penetration had been proved beyond reasonable doubt. If, in other words, the judge's charge was calculated to convey positively that there was no evidence independently confirmatory of the complainant's evidence of sexual penetration, that circumstance is to be taken into account when considering whether a failure to warn the jury of the danger of acting on the complainant's evidence without carefully scrutinising it might have led to an unsafe verdict.