R v B J C [2005] VSCA 154

R v B J C [2005] VSCA 154 - VSCA 2005 case summary — Zoe

[5]

2 I have had the benefit of reading in draft the judgment of my brother Osborn, and I agree with his conclusion that this application for leave to appeal should be dismissed, substantially for the reasons which he has given.

3 The application, however, raises once again a difficult question frequently facing trial judges - that of the use which may or may not be made of evidence of uncharged acts, and it is on this point that I venture some general observations. That such evidence is led in cases of sexual misconduct reflects the reality that it is often very difficult for the complainant to identify particular dates and places of acts which may have been committed on a number of occasions, often some years previously, and in similar circumstances. It is therefore led in fairness to the complainant. It would seem that it was for this reason that the Victorian Parliament in 1991 created a new offence of sexual relationship with a child under the age of 16 years.[1] The present case does not concern such a relationship offence. It must, however, be acknowledged that such evidence creates an atmosphere of prejudice against the accused; it may be of such generality that it is difficult to challenge or refute; and there is always a potential that the jury may use it for an impermissible purpose.

4 The authorities, therefore, make it plain that a trial judge in a case such as the

present must[2] give to the jury an affirmative direction and a negative direction as to the use they might make of the evidence of uncharged acts. The relevant features of this case, for present purposes, are that the accused was charged with sexual misconduct with a single complainant on occasions within specified periods ranging from 1 July 1995 to 29 February 2000 and that the evidence of uncharged acts was of sexual misconduct on other occasions with this complainant during this period.

5 For the present purposes, I assume that the jury has been directed that they may not use the evidence of uncharged acts for any purpose unless it has been accepted by them, for if it is not accepted, the evidence cannot advance the case. In the affirmative direction, the jury is to be instructed how they might lawfully use the evidence; in the latter they are to be warned that they may not use it in a particular way[3]. This negative direction involves a warning, first, that they may not use it in substitution for the evidence relating to the charged offences and, second, that they may not use it to reason that because the accused committed the uncharged acts, compare where the other acts are also charged acts; [4] he or she is the kind of person who is likely to have committed the charged acts ("propensity warning"). I shall now turn to each of these directions.

6 As to the affirmative direction, the trial judge in this case instructed the jury that the evidence of the uncharged acts may be used by them "in order to prove that the accused had an improper relationship with his daughter, thus rendering it more likely that the offences with which he has been charged took place". Later, his Honour told the jury this:

[9]

8 In so directing the jury, the trial judge said he was applying the law as laid down in D.P.P. v. Judge Lewis.[5] This was a case which challenged the validity of a presentment containing nine counts of sexual misconduct over a period of some six years. The Crown indicated that it intended to lead evidence of "a pattern of sexual abuse over a period" - evidence of uncharged acts. It was not, however, necessary for the Court to rule on the admissibility of this evidence. Indeed, Tadgell, J.A. who delivered the judgment of the Court, made it clear that admissibility of such evidence cannot be determined, as it were, in the abstract; it requires an analysis against a particular background of fact and argument[6]. The evidence must be shown to have probative value other than by showing a criminal disposition or propensity, and in this regard his Honour referred by way of example to the 1995 case of Vonarx[7] to which reference will be made, to S.[8] and to the 1996 case of Josifoski[9].

9 In Josifoski the accused was charged with five counts of indecency involving his daughter in 1989 and 1990. The question was as to the admissibility of evidence of uncharged sexual assaults which took place with the daughter in 1983 and 1987. The evidence was held by Southwell, A.J.A.[10] to be admissible to rebut any possible challenge to the evidence of the complainant based upon her lack of complaint about the charged acts. The majority of the Court rejected as a basis for tender that the uncharged acts were part of a continuous or connective series of events and therefore evidence of the "relationship" between the complainant and the accused, her father. The judgment of Smith, A.J.A. who, likewise, rejected the ground of appeal based upon the wrongful admission of the evidence of the uncharged acts, presents the position from the point of view of a trial judge who is asked to make the ruling, often before the trial is commenced. I venture to quote a lengthy passage from His Honour's judgment with which I respectfully agree:

[10]

"Assessing the relevance of evidence such as the evidence with which we are concerned is often difficult. One of the problems is the difficulty of separating in the mind the evidence of the two earlier incidents from the evidence of the incidents the subject of the presentment. It is essential that this be done. For example, one might well come to the conclusion in this case that the seven incidents viewed together, if accepted, tend to prove a sexual relationship or guilty passion and the existence of a continuing fear or 'a species of influence' and that they would explain his confidence of non-detection. If that were done, however, the evidence relating to the five charged incidents would have been used to establish the relevance of the evidence which the Crown sought to tender to prove those charged incidents. It is essential to avoid that circularity.[11]

Care is needed in proceeding on the basis that it is necessary to consider the evidence of other incidents to enable the events the subject of the counts to be considered in a real and intelligible context. Evidence providing a context will be logically relevant but its probative value may be slight and its prejudicial effect great. It is necessary, in my view, to establish why it is that it may be said that the evidence in question will provide a relevant context in which to consider the charges. Only then can the probative value be assessed and compared with its prejudicial effect. When this is done it may be found that the evidence is relevant to the relationship or lack of complaint. To rely simply on 'context' will not usually assist in determining admissibility.

A further difficulty in assessing the relevance of such evidence is that usually the relevance has to be determined prior to the evidence being led and in advance of any cross-examination of the relevant witness - which cross-examination may, as here, render the evidence relevant. At any re-trial that may occur, it would need to be borne in mind that the comments that I have made are made on the basis of what occurred at the earlier trials. It will be necessary at any re-trial inter alia, to identify the evidence the Crown intends to tender (about sexual incidents) and the matters the accused wishes to put in issue. It will also be necessary to consider whether the Crown needs to adduce evidence to establish the relevance of the evidence of any incidents prior to those charged, what that connecting evidence is and whether it, if accepted, would provide a sufficient connection between the earlier incidents and the counts in question to support a finding of sufficient relevance."[12]

[23]

I shall return later to par.(b) of this guide which is concerned with what I have called the negative direction.

17 The next case to which I refer is the 1998 decision of the High Court in Gipp[29]. The verdict of the jury was upon five counts of sexual misconduct with the accused's stepdaughter. She gave evidence of the acts charged and also said, in general terms, that the accused had regularly sexually molested her prior to the first of the charged acts. He was convicted on all counts and these convictions were set aside by three of the five justices on the ground that they were unsafe and unsatisfactory.

18 The interest of the case for present purposes lies in the observations of the Court about the admissibility and utility of the evidence of uncharged acts. It was contended at trial and accepted that the evidence was led to show the relationship between the complainant and the accused and to provide an explanation as to why she so readily complied with his demands. Regrettably, a trial judge looking for guidance upon these matters will be disappointed. Four judgments were delivered and no consensus emerged other than propensity evidence may be received where it has sufficient probative value in relation to the charged acts. It would not be profitable in this case to undertake an analysis of these judgments. It does, however, appear that the majority were concerned that non-specific evidence of uncharged acts led solely to provide context, would lack sufficient probative value for admissibility[30] and that its prejudicial effect would be too great.[31] In the case before the Court, however, all except Gaudron, J. appeared to accept that the complainant's non-specific evidence of uncharged acts was admissible on the basis upon which it was led. Furthermore, as my brother Osborn observes[32], none of the justices would limit the proper evidentiary use which may be made of this evidence of uncharged acts to that of providing context for the evidence of the charged acts. This is of particular relevance for the present case, where the trial judge instructed the jury that they might use the evidence of uncharged acts to establish "guilty passion" and thereby to find the charges proved. Indeed, McHugh, Hayne and Callinan, JJ. expressly accept that this may be a permissible use of such evidence.[33] Of these three justices, McHugh and Hayne, JJ., however, were of opinion that only evidence of specific uncharged acts might be used to prove "guilty passion" in support of the indictment.[34]

19 In KRM[35], a case concerning the direction to be given upon the trial of a "relationship offence" under s.47A of the Crimes Act 1958 (Vic.), McHugh J., one of the dissentients in Gipp[36] said of that case[37]:

[34]

25 What then is to be made of the instruction to Victorian trial judges set out in the passage from the judgment of Tadgell, J.A. in Pearce which I have set out above[49]. In Loguancio[50] Callaway, J.A., in a judgment with which Tadgell and Buchanan, JJ.A. concurred, drew attention to the fact that in the first of the quoted passages from Pearce, Tadgell, J.A. had been careful to limit his statement of principle, and presumably his instruction to trial judges, to cases such as that before the Court and that a feature of that case was the generalised nature of the evidence of uncharged

acts.[51] It is clear, then, that, notwithstanding the generality of the direction to Victorian trial judges, it must not be understood by them without regard to other cases to which I have referred.

26 These cases, including Josifoski[52], show that the evidence of uncharged acts which is before the jury may be used in the appropriate case for purposes other than that of giving context to the evidence relating to the charged acts. Moreover, it appears from cases such as Nieterink[53] that the fact that the evidence of uncharged acts is offered only by way of background is not sufficient to warrant its reception.

27 A very common purpose in cases such as the present for the tender of this evidence will be in proof of what is called in the cases, "guilty passion". In such a case, the Crown may seek to lead evidence of sexual or other conduct on another occasion to prove that the accused was sexually attracted to the complainant or so attracted in a particular way. The leading authority for this, and the likely source of the jargon expression "guilty passion", is the old English case of Ball[54]. This was a case where the two accused were brother and sister charged with incest. There was no eye-witness of their sexual activities and the Crown relied upon circumstantial evidence, the logic of which was then in vogue in divorce courts in proof of adultery. This was to establish an adulterous passion between the respondent and the co-respondent and an opportunity to gratify that passion and then to invite the jury to infer that the opportunity had been seized.

28 The origin of the expression, perhaps, explains its terminology. It is, however, surprising that its judgmental terms continue to be used in contexts such as the present. It is, to my mind, unhelpful and indeed positively dangerous, to speak of evidence which is not, after all, directly probative of the offence charged and of which offence the accused is presumed not to be guilty, in terms which include the word "guilty". It may be that the use of the expression would encourage the jury to reason in a way which is prohibited - to conclude that, if the uncharged acts have been proved so that they are satisfied that the accused has indeed a guilty passion for the complainant, this would suffice to establish the guilt of the accused of the charged acts. I agree with Osborn, A.J.A. that it would be preferable that juries be addressed by counsel and trial judges in more neutral terms as is appropriate to the facts of the particular case. Perhaps in most cases, the state of mind of the accused might more properly be referred to as "a sexual attraction"[55] or simply a "passion".

The Negative Direction

29 It will be recalled that, in accordance with paragraph (b) of the guide to judges contained in Grech, the trial judge is required in cases where the evidence of uncharged acts is that of acts with the complainant, to give to the jury two warnings as to what use they might not make of the evidence of uncharged acts, assuming they accept it. They must be told that:

[36]

30 Paragraph (b)(i) of this guide was relied upon as the basis for proposed Ground 1(b). There, it is put that the trial judge breached that requirement by including in his directions to the jury a statement that proof of the improper relationship might be used to render it more likely that the charged offences took place.[56]

31 In Best[57], a judgment given on the same day as his judgment in TJB[58] Callaway, J.A. with the concurrence of the Chief Justice and Buchanan, J.A. expressed this paragraph (b)(i) in rather different terms: the trial judge must direct the jury "not to substitute that evidence [the evidence of uncharged acts] for evidence of the offences charged". It will be recalled that this use of the word "substitute" follows the exposition of Hunt, C.J. at C.L. in the passage from Beserick which I have set out at [11] above.

32 A moment's reflection shows that it is such a substitution which is the mischief to which the warning is to be directed. If the evidence of uncharged acts is not available to be used at all to prove the charged acts, there is no reason to receive it[59]. The danger to which this part of the warning is directed is associated with the part (ii) of paragraph (b) of the Grech guide. The jury are not to put aside their obligation to form a view to the criminal standard upon the evidence in relation to the charged acts and to reason that, since the accused is guilty of the uncharged acts, he or she must be guilty of some or all of the charged acts.[60] This is apparent when paragraph (b)(i) of the guide in Grech is carefully examined. The jury is here to be told that they may convict the accused of the charged offences only by the evidence relating to those charges. Where evidence of uncharged acts relates to the charged offences, it is available for use for that purpose.

33 It follows that the trial judge in this case committed no error in instructing the jury that they might use the evidence of uncharged acts to conclude that the accused was guilty of the charged acts. Proposed Ground 1(b) fails.

34 Proposed Ground 1(c) is directed to part (ii) of the negative direction. I shall, for convenience, set out this part of his Honour's direction again:

[38]

35 It is said that the propensity direction which the trial judge gave in the second sentence of the second paragraph of this passage[61] was undermined by his direction in the third sentence that proof of the uncharged acts rendered it "more likely that the charged offences occurred".

36 It is clear from authorities such as PLK[62] that there is no substance in this ground. It is apparent, however, from the exchanges between counsel for the applicant and his Honour in the intervals during his Honour's charge in the present case, that there are difficulties in reconciling the required propensity warning with the required direction as to the use which the jury may properly make of evidence of uncharged acts, particularly those which are concerned with sexual attraction. It may be that it was to resolve these difficulties that Parliament in this State has sought in s.398A to substitute a regime of admissibility whereby all propensity evidence is receivable where the provisions of that section are satisfied and subject to the Christie discretion to exclude it, if that discretion be available.[63] Once received, the evidence becomes part of the material which the jury may use in determining whether the charged offences have been proved to the criminal standard. While this provision may have rendered evidence of uncharged acts more readily receivable[64] and shifted to the jury the task of determining its weight, it does not deal with the associated problem of the duty of the trial judge to direct the jury as to its proper use.

37 Where evidence of uncharged acts is led in proof of sexual attraction of the accused for the complainant, it will be seen that its purpose is perilously close to the prohibited use of evidence of propensity, so that the propensity warning with respect to this evidence must be crafted in such a way so as not to make a nonsense of the direction as to its lawful use. In cases where the victim of the charged and uncharged acts is the same person, this may not be an easy distinction to make. In such a case, the essence of the logic behind the admission of the evidence in question is that the accused, being a man who lusts after the complainant, is likely to have gratified this lust, as she says he did in her evidence in support of the counts on the presentment. The jury are told that where the uncharged acts show that the accused has a sexual attraction or passion for the complainant, they might use this to conclude that her evidence, that he gratified this attraction or passion on the occasions charged, should be believed. At the same time, they are told that they may not use the evidence of uncharged acts as showing that the accused is the kind of person who was likely to have done so on the occasion charged. The point of distinction, if there be one, is indeed a subtle one. It must lie in that between general and specific propensity. The evidence is admissible, not to prove guilt of the offences charged by a general disposition to commit crime, but to show the nature of the relationship in a manner which bears directly upon the question of guilt.[65] In short what the jury are asked to do is to infer from evidence of uncharged acts that the accused has a disposition to commit the particular crime charged.

[39]

38 This difficulty has led the High Court to accept that evidence of uncharged acts is in truth propensity evidence, but propensity evidence of a particular kind whose probative value is such that it is receivable[66]. Whether it is to be received into evidence pursuant to s.398A will depend, in addition, upon the judge's perception of any prejudicial effect on the accused and, further, whether the judge "considers that in all the circumstances it is just to admit it despite any prejudicial effect on" the accused. Trial judges should, therefore, approach an application to lead this evidence in no merely mechanical way, but with considerable caution and with a clear understanding of the legitimate purpose for which it may be used. It is not sufficient to acknowledge that it may be useful as background or context. Where the evidence is said to provide the context for the evidence of the complainant the uncharged acts must be sufficiently close in time and circumstance to really provide that context;[67] where it said to prove a sexual attraction it must likewise be such that this attraction is sufficiently close in time and circumstance to be probative of the act charged.[68] Particular caution is required where, as here, it is evidence by the complainant herself in very general terms and led in a case where the only evidence of the charged offences is the uncorroborated evidence of the complainant

39 The problem for the trial judge in these circumstances is then how to formulate the propensity warning. The Court of Appeal in this State has made it clear that they must give a warning which, tailored to suit the requirements of the case, satisfies the requirements of the Grech guide.[69] It recommends that they avoid

using the word "propensity".[70] The task of reconciling this with the affirmative direction which is required may be a delicate one. In most cases the distinction will lie in the identification of the particular use which the jury has been instructed they might make of the uncharged acts evidence for the purpose of establishing whether the particular offence charged has been proved.

40 Where, as here, this evidence is offered to prove a sexual attraction by the accused for the complainant, it is proper for the trial judge to tell the jury that they might use the evidence of uncharged acts, assuming they accepted it, not only to set the context in which the other evidence of the offences charged should be understood and assessed, but also in assessing that evidence and thereby determining the guilt of the accused of the offences charged. This the trial judge did. Accordingly, proposed Grounds 1(b) and (c) must be rejected.

41 As I mentioned at the outset, in other respects I agree with the reasons of my brother Osborn and would dismiss the application.

[40]

42 The applicant is a 50 year old man who seeks leave to appeal convictions in the County Court at Bendigo on five counts of indecent acts with a child under 16 and 11 counts of incest.

43 The Crown case was that the offences occurred between 1 July 1995 and 29 February 2000. The victim was the applicant's daughter S who was born on 27 October 1982. S was not yet 13 years old at the time of the first offence and 17 at the end of the period in issue.

44 The evidence of S was that the offences occurred during two periods of time.

During the first S visited her father for the purposes of access and during the second she was living with him. The five indecent acts were committed when the applicant had separated from his wife and S visited him for the purposes of access at a series of addresses in Kyneton. The indecent acts escalated from rubbing the victim's breasts to rubbing the applicant's penis against her, rubbing her while showering with her, and having her wash the applicant's body with particular focus on his genitals. In turn these actions progressed to acts of sexual penetration and a series of such acts took place on weekends. Specific acts were identified in evidence and comprised counts 6, 7, 8, 9, 10 and 11.

45 In July 1998 the applicant moved to Lauriston Street, Kyneton and thereafter S left her mother and came to live with the applicant. The applicant then engaged in regular and unrestrained sexual intercourse with her. The Crown chose the first of such acts to form the basis of count 13. The applicant and S then moved to a further address in Ebden Street, Kyneton. Counts 14 and 16 comprised the first and last occurrences of sexual intercourse at this address. Count 15 comprised a particular act of intercourse involving specific distasteful circumstances.

46 Eventually when S reached the age of 17 years she left home. There was some contact between the applicant and S thereafter but no further sexual acts occurred.

47 S first complained to the police when she was 19 years old and made a full statement on 30 July 2001. The respondent was interviewed by police on 8 November 2001 and denied the occurrence of any sexual misbehaviour.

48 At the trial evidence was given on behalf of the Crown only by S and the informant who had interviewed the applicant. In turn the applicant gave evidence denying the allegations made against him. The case presented a stark contrast between the evidence of S on the one hand and the denials of the applicant both in his record of interview and in the witness box on the other.

The grounds of appeal

49 The applicant seeks to appeal on the following grounds:

[74]

71 As Mr Holdenson submitted the above formulation responded to a case in which the jury was directed that alternative purposes were open for the use of evidence of uncharged acts. The judge's directions were capable of being understood by the jury to mean that without considering whether the evidence revealed a sexual relationship they could use it to bolster the evidence relating to the counts charged.[100] The 'essential point'[101] in R. v. Pearce was the identification of this real possibility in the particular context of the evidence in the case. In these circumstances "there was an acute danger that the jury would impermissibly reason that mere acceptance of the complainant's evidence of uncharged acts would afford more reason to accept her evidence with respect to the charged acts."[102]

72 The passage quoted from Pearce above at [29] cannot be understood as precluding a specific direction that evidence may be used for the purposes of establishing an improper sexual relationship or guilty passion. As Tagell, J.A. earlier recognises[103] this is not the intent of the passage in Vonarx which the Court endorses. Moreover, the conclusion in Pearce itself is expressed by way of agreement with the judgment of Pincus, J.A. in Schneider in which he endorses telling the jury that evidence of sexual conduct is relevant to show "the existence of sexual passion or relationship[104]". It is also preceded by reasoning which agrees with the passage from Callinan, J.'s judgment in Gipp which I have quoted above and which likewise expressly recognises that evidence may be admitted to demonstrate "guilty passion".

73 It will generally be appropriate for the trial judge to identify the purpose for which evidence of sexual relationship is admitted with the same precision as is necessary to determine its admissibility. Before evidence of the kind in issue is admitted the onus rests on the prosecution to establish that it goes beyond mere propensity and "has additional probative value which justifies its prejudicial effect."[105] Accordingly the purpose identified will respond to the particular issues in the case.[106] Characterising evidence simply as demonstrating a relationship may be unhelpful and will increase the risk that it will be treated as evidence of mere general propensity by the jury. As Gleeson, C.J. said in Frawley v The Queen[107] when considering questions of admissibility:

[92]

87 It follows that this contention must fail.

88 It was lastly contended with respect to uncharged acts that the charge given to the jury tended to confine the directions relating to uncharged acts to those occurring following count 13 and between counts 15 and 16. I do not accept that the directions would have been so understood by the jury. The uncharged acts referred to were the subject of specific direction because they were necessary to the proof of counts 13, 14 and 16 as particularised. Nevertheless the emphasis now complained of was not the subject of any exception at trial and I do not accept that there was any real risk that it would have misled the jury.

Directions as to the applicant's evidence

89 The second ground of appeal asserts that the learned trial judge erred in his directions firstly by endorsing the prosecutor's argument that the applicant had a clear motive of self-survival for giving sworn evidence, and secondly by repeating without criticism the prosecutor's arguments based on the applicant's demeanour in the taped record of interview. In my view both these propositions must fail.

90 The learned trial judge did not endorse the prosecutor's argument as to motive. He simply repeated such argument and immediately balanced the Crown argument with a competing argument for the defence. He then went on to direct the jury that they must weigh up the competing considerations and stated that in the long run they may well regard the applicant's evidence in the same way as they would regard the evidence of any other witness, while bearing in mind that he may be under more strain than any other witness and remembering at all times that the burden of proof remained on the prosecution. When his Honour's directions are considered as a whole it is clear that the jury was not being invited to treat the accused as a "suspect witness", nor did the judge say anything which undermined the presumption of innocence. The directions did not have the objectionable characteristics identified by the High Court in Robinson v. R.[122]. They were acceptable for the same reasons as those discussed in R_. v. Osland_[123] and R. v. McMahon[124].

91 Likewise the proposition that it was improper to repeat the prosecutor's argument with respect to the applicant's demeanour cannot be sustained. It was open to the prosecutor to draw the jury's attention to any apparent inconsistency between the record of interview and the applicant's evidence before them. On the face of it there was a material difference between the tenor of the applicant's answers in the record of interview and his evidence. This was a legitimate subject of address and the learned trial judge did no more than remind the jury of the Crown's contentions.

The Longman warning

92 A number of criticisms were made of the "Longman warning"[125] given to the jury. In my view, however, this was not a case in which a Longman warning in the full sense identified in that case by Brennan, Dawson and Toohey, JJ. was required. The case the applicant faced related to allegations concerning events between one and a half and six years prior to the police interview with him. Events in issue concerned a continuing course of conduct. The period did not exceed the period which the law regards as a generally appropriate limitation period for civil claims with respect to actions in tort. It was not such as to bring the case into that category where it can be said the experience of the law demonstrates that because of the passage of time the evidence could not be adequately tested. While in my view Mr Croucher was correct to contend that strictly speaking the direction fell short of what would be required to provide a complete warning of the type contemplated by the majority in Longman nevertheless the warning given was appropriate to the present case.

93 In directing the jury his Honour drew their attention to the delay of S in making formal complaint in respect of the earlier alleged offences. He went on to note confusion in the evidence of S as to the location and sequence of events. He then stated:

[95]

94 In my view such warning was given with the full authority of the learned trial judge's office and identified for the jury the need to have regard to the potential prejudice which the applicant may have suffered as a result of delay in complaint. It did not, however, go the further step contemplated by the majority in Longman and tell the jury that the evidence of the complainant could not be adequately tested after the passage of time involved. It did not do this because the period of time involved did not require this direction. The present case is in critical respects like that of R. v. E.O.[126] in which Winneke, P. emphasised that the nature of any warning which is to be given to a jury in any particular case is very much a matter for the trial judge. In this case as in that the delay between the events in issue and notification to the police (and, thus, to the applicant) was not so great as to create significant prejudice to the applicant; and, thus, to warrant a stronger direction that that given.

95 In the present case no exception was taken to this aspect of the charge at trial and this reinforces the conclusion that the direction in issue was in fact very fair to the applicant. It did after all specifically direct the jury to consider the possible consequences of delay in the context of the facts in issue.

The Kilby warning

96 The applicant next took issue with the form of the "Kilby[127] warning" adopted by the learned trial judge. It was contended that the direction was couched in the form of a comment only and overwhelmed by explanations for failing to complain. I do not accept the factual basis for either of these propositions. The learned trial judge gave the jury "instructions". He further made clear that the jury might use the failure of S to complain as detrimentally affecting the credibility of her evidence. Once again no exception was taken to this aspect of the charge at trial and for the reasons I have stated this is not surprising.

The complainant's motive

97 Ground 5 asserts that the learned trial judge erred in raising the question of whether S had a motive to lie and failing to give directions to the jury as to questions of onus of proof bearing on the issue of the existence of such a motive.

98 The learned trial judge did give general directions that motive might be a consideration which the jury regarded as relevant to the assessment of credibility of a witness. In so doing however he initially did no more than identify in general terms a circumstance that might bear on the jury's assessment of the evidence.

99 The learned trial judge subsequently summarised a portion of the prosecutor's address in which the jury were reminded of evidence from the applicant that "when he first became aware of S making allegations, he said he knew it would be S, and he had his reasons for knowing it would be S." The prosecutor drew to the jury's attention the fact that these reasons were never articulated.

100 There is no suggestion that the prosecutor's submission misstated the applicant's evidence. Moreover, having repeated the prosecutor's observation to the jury the learned trial judge warned them:

At a glance

Court

Decision date

Before

Source

Judgment (98 paragraphs)

Parties

Cases Cited (1)