R v D S J [1998] VSCA 63

63. Her Honour then addressed counsel for the applicant, asking whether there were any matters which he wished to raise about the issue that she and the prosecutor had been discussing and saying,

"I will draw their attention to the fact that there is no - they [? I] will also say, of course, that in these cases it's rare to have someone else in the room or someone there who could actually give eye-witness evidence. It's about them using their whole assessment and that's one of the issues they really have to look at. But other than that, the delay issue itself is not a significant one, I will draw their attention to the fact that the first charges were some four or five years ago and so they have to think about what her memory might be about that."

(Presumably, after the word "no" in the first line her Honour said "corroboration", or counsel justifiably took her to have done so.) Counsel said, "Yes" and her Honour continued:

"And her age, in that context. But other than that, are there other issues that you think I ought to properly put?"

"No. I've heard the discussions with my learned friend and I'm completely happy with what your Honour has said about your intentions (indistinct)."

71. In her charge her Honour drew attention to the age of Bianca over the period of the alleged offences, directing the jury in substance to consider her ability to understand events and give evidence about them. She then charged the jury in relation to complaint evidence. She directed them that there was no evidence of any fresh complaint at the time of the offences and that what Bianca said on 16 May 1995 did not qualify as a fresh complaint. She drew attention to defence counsel's submission that Bianca's lack of complaint at the earliest opportunity was in fact inconsistent with her evidence that on six occasions the applicant had done the alleged acts to her. She then directed the jury in some detail in accordance with s.61(1)(b) of the Act as it then stood, concluding, in substance, with a direction that it was for the jury to make their own assessment about the lack or lateness of complaint, bearing in mind Bianca's age. She directed the jury that it was up to them to say whether in all the circumstances the absence of complaint at the time was behaviour "inconsistent or consistent" with the happening of the offences as Bianca alleged. She said that absence of complaint was one of the circumstances for the jury's consideration; that they would probably also need to look at the delay between the earlier offences and 16 May 1995; and, by way of direction, that they had to consider then the effect that that might have had upon her memory. She turned then to the defence contention that Bianca had made up the allegations because of her admitted antipathy towards the applicant with a view to severing the relationship between her mother and the applicant and thereby bringing herself closer to her mother. She directed the jury that it was not for the applicant to prove a motive or anything else, but that if they did reach the conclusion that it was possible in their minds that Bianca had fabricated the allegations because of the family relationship then it was their clear duty to acquit.

"Now, another matter regarding the assessment of the evidence is as fact finders, you need to be fully aware that there is a potential for error in convicting someone on the evidence of a person who complains alone unless after careful scrutiny of the evidence you are satisfied of its truth and its accuracy. In any case where there is no external evidence that tends to support that an offence occurred or that the accused was indeed the offender, then you must scrutinise the evidence very, very carefully. This is such a case where in essence the evidence in regard to these sexual acts is the evidence of Bianca. Now, it is not necessary as a matter of law to have supporting evidence which supports a complainant before you can convict but in some circumstances you have to consider that the absence of that sort of evidence makes the potential for error greater and that is a matter where you have to bring in again your assessment, your commonsense and take that factor into account. It would be quite wrong if you just approached the evidence and ignored the danger of any potential for error in circumstances where you have no independen[t] source of evidence in regard to supporting or tending to prove these offences did take place and were done by the accused man. So, it simply really means at the end of the day that you have to give the evidence very careful scrutiny, bear in mind the onus of proof and the need to be satisfied beyond reasonable doubt of its truth and its accuracy. If you are ultimately so satisfied then you are bound to convict in regard to that particular matter. If you are not, then equally you are bound to acquit."

78. No exception was taken to that part of the charge.

81. The argument for the applicant took the two grounds of proposed appeal together, in effect treating the second as particularised by the first. Mr. Dane Q.C. for the applicant commenced his powerful submissions with two propositions that were readily accepted by Ms Sexton for the respondent. First, the evidence of the complainant as to the applicant's commission of the alleged offences was entirely unsupported by the other evidence led at the trial, so that proof of the offences was dependent upon her evidence alone. Secondly, the credibility of the complainant was, accordingly, critical. Mr. Dane continued that, as a consequence, it was incumbent upon the trial judge to give the jury an adequate warning as to how they should approach their task of assessing and evaluating the complainant's evidence. A warning with the full authority of the judge's office was required. This was a case, he submitted, in which there were several (potential) dangers of acting upon the evidence of the complainant which may not, without such a warning, have been appreciated by the lay persons comprising the jury. He referred to Longman at 91 and 95-96; R. v. Miletic [1997] 1 V.R. 593 at 601-606; and R. v. Young [1998] 1 V.R. 402 at 406-409. In other words, he submitted, it was necessary that the jury's attention be focussed upon the evidence of the complainant and those matters which tended to undermine its reliability and thereby render it dangerous to act upon it. As a result the trial judge was, he contended, under a duty to remind the jury in plain and unambiguous terms by way of warning of several matters, each of which he claimed was germane to the danger against which the warning is to guard, including:

"(a) the age of the complainant at the time of the alleged offences; (b) the age of the complainant at the time of the trial; (c) the fact that the allegations were of events which, by their nature, would occur in secret and attract no eye-witnesses; (d) the fact that there was a delay in making any complaint; (e) the nature of this class of allegation."

He referred again to Miletic at 601-606. Further, he contended, the judge should have clearly instructed the jury that because there was no evidence which independently supported the complainant's evidence it would be dangerous to convict on her evidence alone unless the jury, having scrutinised that evidence with great care and paying heed to the warning, were convinced of its truth and accuracy: Miletic at 601-606 and Young at 406-409. He concluded that the judge had failed in this case to direct the jury in accordance with the two last-mentioned contentions and that there had in the circumstances accordingly been a miscarriage of justice.

86. Mr. Dane submitted her Honour's charge to close and penetrating scrutiny. In developing his argument orally he said that the charge failed to concentrate on the issue of the credibility of the complainant and that, rather, her Honour had compartmentalised her charge, selecting topics and doing her "bare duty", with the result that the charge was a disjointed mixture of references to counsel's arguments, comments and timid warnings. Was, he asked rhetorically, saying that it was dangerous to convict on the complainant's evidence alone unless, after very carefully scrutinising it and paying heed to the warning, the jury were satisfied of its truth and accuracy, too simple or too favourable to the applicant? He conceded that on the authorities no formula for the warning was laid down, but submitted that age could not be separated out as a separate issue, as he contended her Honour had done by introducing her Longman warning with the words "Now, another matter ...". He complained that her Honour's discussion of the complainant's age, "set in an exercise in commonsense", went, not to veracity (as he contended it should have done), but to capacity to understand and give evidence. Referring to Kilby v. R. [1973] HCA 30; (1973) 129 C.L.R. 460, R. v. Davies (1985) 3 N.S.W.L.R. 276 at 278 and Miletic at 603, he complained, too, that the Kilby warning to balance the s.61(1)(b) direction was deprived of balancing effect by reference to "_con_sistency" and, also, that it should have been directed to veracity, not consistency or inconsistency with the happening of offences. The essence of Mr. Dane's oral argument was, as it seemed to me, that in the portion of her charge which I have quoted verbatim, first, her Honour had failed to tell the jury why they must scrutinise the evidence of the complainant very carefully, and, secondly, her Honour had failed to refer to the complainant's age and the delay in complaining and to state authoritatively that they were grounds for seriously questioning the complainant's veracity.

89. Whilst it can by no means be said that the adequacy of the charge in the respects challenged by ground 1 is beyond argument, I am of opinion, for the reasons which follow, being in substance those advanced by Ms Sexton, that her Honour's charge, particularly the direction set out verbatim earlier, was adequate in the circumstances of this case.

92. As this Court, citing Longman at 86 per Brennan, Dawson and Toohey, JJ., said in R. v. Robinson [1996] VicRp 27; [1996] 1 V.R. 402 at 408:

"Longman is authoritative for the proposition that while judges should no longer warn juries that victims of alleged sexual offences are as a class unreliable, nevertheless the general rule remains that a warning should be given 'whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'."

Similarly in Miletic at 603 this Court pointed out that whether a warning is called for, and in what form, depends upon what the interests of justice require in the particular case. Later, at 605, the Court stated that, where, as here, there is not a rule prescribing the direction to be given, a trial judge should retain flexibility to deal with the almost infinite range of factors affecting criminal trials. In commenting on the principle applicable in such a case, that the judge should give any direction necessary and practical in the circumstances to avoid a perceptible risk of miscarriage of justice, the Court made it clear that it was speaking of directions requiring the authority of the judge's office; that an appellate court will attach weight to the judge's assessment of what was required and, in appropriate cases, will infer from counsel's not taking an exception that the direction in question was not required; and that the consequences of failure to give the direction will depend upon whether, in the event, there has been a miscarriage of justice. The Court went on to state that there must be an identifiable factor or group of factors calling for a direction, being a factor or factors that could not safely be left to trial counsel to deal with in his address, and that counsel for the applicant must identify the specific factor or group of factors. A distinction is drawn in the cases between circumstances capable of being evaluated by the jury for themselves, on which a comment in the judge's discretion under s.61(2) would be proper and may not be surprising to find, and factors the full significance of which may not be apparent to lay persons unfamiliar with the way in which a criminal trial is prepared and conducted and therefore requiring, not merely a comment, but a warning: for example, Longman itself at 90-91 per Brennan, Dawson and Toohey, JJ., 95-96 per Deane, J. and 108 per McHugh, J.; Miletic at 604 and 606; and R. v. Vandrine [1998] V.S.C.A. 43 at para.58 per Buchanan, J.A. Finally and perhaps to emphasize what has already been said, where a warning is necessary, it is well established that no particular verbal formula is required; rather, the direction must be tailored to the facts of the case: Longman at 86; R. v. Stevens (unreported, Court of Criminal Appeal, 15 December 1994) at pp.23-24; R_. v. Omarjee_ (1995) 79 A.Crim.R. 355 at 369; Robinson at 408; and Miletic at 606.

97. At the trial the critical issue was the credibility of the unsupported evidence of the complainant. This must have been apparent to the jury, certainly after closing addresses. This lack of other evidence supporting the complainant's evidence called for a Longman direction. In my view, there were not here additional factors calling for, and thus dictating the content of, such a direction. In particular, I consider, none of the five factors put forward by Mr. Dane and set out earlier in these reasons did so, and it was, as already stated, for counsel for the applicant to draw this Court's attention to the specific factors or group of factors requiring the direction. My reasons for considering that the five factors propounded did not call for a direction are as follows. The age of the complainant at the time of the alleged offences was known to or calculable by the jury from the evidence, as was her age at the time of trial. Moreover, her youthfulness and immaturity at the time of trial must have been apparent to the jury. Mr. Dane was unable to cite any authority for the proposition that the age of the complainant at the time of trial itself warranted a warning. The third particular matter on which he relied, that the allegations were of events which, by their nature, would occur in secret and attract no eye-witnesses, was the very rationale for the warning. Her Honour probably conveyed that to the jury. Be that as it may, the evidence of Bianca made it clear that, according to her, the events occurred in secret and, if that was not enough, in an answer in cross-examination, which I have set out earlier, she spelled out the fact. The jury could not have been unaware of this fact. If they knew that the events were alleged to have in fact occurred in secret and were warned accordingly, it could scarcely be said to be necessary to direct them that those events were by nature such as would occur in secret. I agree with Ms Sexton that the jury must be treated with some respect. With regard to the fifth particular matter, the nature of this class of allegation, her Honour had earlier referred to this point and she touched on it again in the impugned passage. In any case, this point, too, could not but have been obvious to the jury. Moreover, notwithstanding the reference to the point in Longman at 90, her Honour, as Ms Sexton submitted, could scarcely have said more on this topic without infringing the prohibition in s.61(1)(a).

100. That leaves the fourth particular matter, that of delay in making complaint. Delay in prosecution is mentioned in both portions of the passage in the joint judgment in Longman at 90-91, that is, the portion relating to comments and the portion relating to warnings. No distinction was drawn in the present case between the time of disclosure (16 May 1995) and the time when the applicant was charged. He was certainly put on notice by the disclosure of the "secret" and his wife's immediate telephoning of the police. It was not suggested in this case that delay in complaining (or in prosecuting) had any prejudicial effect upon the applicant or any effect which may not have been apparent to the jury. Indeed, Mr. Dane, who in relation to the complainant's age had already stated to the Court that he was not saying that the factor was not obvious to the jury, when asked by the Chief Justice whether he could give any practical example of the effect of delay in this case said that he could not, that this was not a case of a witness who had gone missing or the like. Moreover, there was no suggestion by counsel at trial that delay had had any prejudicial effect or any effect that may not have been apparent to the jury. Further, as Ms Sexton pointed out, this was not a case where there was a long interval between the time when the offences were alleged to have happened and the laying of the charges or the holding of the trial. Rather, it was a case of a series of offences alleged to have happened successively over a period of time concluding only a month or so before the complainant's disclosure of the "secret". Again, as Ms Sexton also mentioned, with the exception of count 2, the circumstantial context in which the offences were alleged to have occurred was common ground. Thus, for instance, the applicant agreed that there had been a day when he and Bianca were at home watching television and Mrs. J and Naomi had come home from the doctor. (With regard to count 2 no more could be said than that it was common ground that it was a general form of punishment for Bianca to be sent to her room by the applicant.) In my view, the correct conclusion in the circumstances that I have outlined, including the attitude of counsel both here and below, is that this is not a case where the applicant lost the means of testing the complainant's allegations as a result of delay in complaint or in prosecution. There was not, then, any additional factor requiring a warning because its full significance might not have been apparent to the lay jury.

103. The form into which a Longman warning is to be tailored is dictated by the factor or factors necessitating that warning. Here, for the reasons that I have given, I consider that the sole factor requiring a Longman warning was the fact that the complainant's evidence was uncorroborated (as I shall for convenience continue to describe it). The question then becomes whether her Honour's direction was adequately responsive to or reflective of that factor. In my view, it was. In the impugned passage, her Honour spoke with the authority of her office, instructing the jury in imperative terms or terms of duty, such as "you need to ..." and "you have to ...". She began by alerting the jury to the general proposition that they needed to be fully aware of the "potential for error" (a phrase of McHugh, J. in Longman at 108) in convicting a person on evidence of a complainant alone unless - and here her Honour used some of the expressions in the joint judgment in Longman at 91 - after careful scrutiny of the evidence they were satisfied of its truth and accuracy. She then moved to the particular case, telling the jury in substance that this was a case where the complainant's evidence was unsupported. Contrary to the submission of Mr. Dane, it is clear, in my view, that the expression "the evidence" means only the uncorroborated evidence, that is, that of the complainant in the general statements and that of Bianca in the particular statements. Her Honour used the expression "potential for error" three times and the word "danger" once. She referred to absence of corroboration, either generally or in the particular case, five times. She told the jury three times, either generally or with respect to the particular case, that it was necessary to scrutinise the (uncorroborated) evidence carefully, very carefully or "very, very carefully", indicating that after such scrutiny they could convict, but concluding by reminding them of the onus and standard of proof.

106. Finally, counsel for the applicant at the trial both expressed himself as "completely happy" with her Honour's (somewhat imprecise) proposed Longman direction and failed to take any exception to the direction after it had been given. That tends to confirm that in the circumstances of the trial there was nothing in the delivery or content of the Longman warning that gave rise to an impression that a miscarriage of justice was about to take place or was taking place: Miletic at 605. (It is not necessary to consider whether, if ground 1 had been made out, the conduct of counsel below in respect of what would have been a curable defect would, in the circumstances of this case, have been fatal to the application: cf. Omarjee at 371 and Miletic at 603-604.)

109. I do not suggest that the direction is a model for future use. It is far less direct than the statement in the joint judgment in Longman at 91 of what the jury in that case should have been told. There are blemishes, such as the use of the disjunctive, instead of the conjunctive, in explaining corroboration in terms of "external evidence" (though this was corrected by the explanation in terms of "independent source of evidence") and the use of phrases which tended to weaken or dilute the direction, such as "in essence", "in some circumstances" and "it simply ... means", as well as the reference to the jury's common sense. Perhaps, too, the reason for needing to be fully aware of the danger of convicting on uncorroborated evidence could have been spelled out more clearly. But a charge is not to be interpreted as though it were a statute. Rather, it is a set of instructions, comments and summaries given orally in - and falling to be understood in - the context of the trial in question and, in particular, of the closing addresses of counsel and the fact that her Honour had already dealt in her charge with the sexual nature of the offences in question, the age of the complainant and her delay in complaining. (By the latter remarks I do not mean to suggest that matters requiring to be stated with the authority of the judge's office can be sufficiently stated by reference to counsel's arguments or by mere comments.) Moreover, as I have already said, no set form of words was required.

112. In this connection I should mention that, although her Honour had said to the applicant's counsel in the absence of the jury that she would also say to the jury that in "these cases" it is rare to have someone else in the room or an eye-witness, she did not tell the jury that. For reasons already given, however, that was, in my view, an immaterial omission: the jury would have been well aware of that.

115. I have so far dealt only with the second limb of ground 1, namely the contention that her Honour failed to warn the jury sufficiently as to the danger of convicting upon the complainant's uncorroborated evidence. On one view indeed, the argument for the applicant went outside that limb, but I have dealt with the substance of the argument. No argument was directed to the first limb, which complained that her Honour did not adequately identify the relevant evidence for the jury's assistance, unless that limb be intended to refer to the five factors which Mr. Dane contended should have been the subject of a warning. I have already dealt with those factors. If the first limb is intended to have any other meaning, being necessarily a meaning in the context of a Longman direction, it is sufficient to say that there is nothing in the limb: it is clear that her Honour's impugned Longman direction was dealing with Bianca's evidence that on six occasions sexual conduct as described by her was engaged in by the applicant towards her. Any inconsistencies that there were in her evidence did not call for a warning: compare R. v. Lear [1998] 1 V.R. 285 at 299.

118. As appears from my summary earlier, in the course of arguing this application Mr. Dane criticised her Honour's Kilby direction as lacking balance and as not being concerned with the complainant's veracity. That direction is not subject to any ground of proposed appeal, and indeed I took Mr. Dane to have discussed the Kilby direction merely to lay the foundation for his attack upon her Honour's Longman direction. I would, therefore, confine myself to observing that there was no exception to the direction.

121. In my opinion, for the reasons I have given this application should be dismissed.