R v D S J [1998] VSCA 63

[1998] VSCA 63

Court of Appeal (Vic)|1998-10-09|Before: PHILLIPS, C.J., BATT and KENNY, JJ.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

1998-10-09

Before

PHILLIPS, C.J., BATT and KENNY, JJ.A.

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

The applicant stood mute and did not call any evidence.

[2]

As is apparent, Bianca's evidence of each offence was uncorroborated or lacked "confirmation" or "support".

[3]

After the Crown had closed its case and after counsel for the applicant had indicated to her Honour in the absence of the jury that he did not propose to call any evidence, the prosecutor raised with the judge the question of the directions to be given relating to the complaint, if such it was, of 16 May 1995. After that had been discussed, the prosecutor raised with her Honour the direction to be given, in her discretion, in what he called "the situation", that being a reference to ; Her Honour, conscious that Bianca's evidence was uncorroborated, said that what she had done in the past was, first, to indicate that the jury should beware to scrutinise carefully evidence where there was no independent objective supporting evidence, but, secondly, to say that that did not mean that they could not properly convict but that they had got to be very careful about it, and said that her practice was then to "highlight if there are any actual factual matters". That, she said, was really all she would be doing. A little later her Honour said, "I just say it is a potential for error and they have got to look at it, scrutinise it in those sorts of things and I think that does cover it, because it brings it to their attention." Shortly thereafter her Honour, in an incomplete sentence, indicated to the prosecutor, as I read it, that, unless he directed her to particular matters, she would not in this case draw attention to particular factual issues for the jury's consideration in relation to the direction, other than, she supposed, the relationship which Bianca had conceded in evidence, which, her Honour said, if found by the jury to be the reason for making the allegations, would be the end of the Crown case. The reference to the relationship seems to me to be a reference to the relationship between the applicant and Mrs. J, which Bianca had admitted she resented as it tended to reduce the closeness of her relationship with her mother. (Alternatively it could possibly be a reference to the hostile relationship, from Bianca's point of view, between herself and the applicant for the same reason and also because of his, in her eyes, unfair treatment of her. But the alternative interpretation of her Honour's remarks really comes to the same thing.)

[9]

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.

[15]

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.

[19]

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.

[20]

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).

[21]

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.