R v FVK [2002] VSCA 225

R v FVK [2002] VSCA 225 - VSCA 2002 case summary — Zoe

[86]

"I have given you some general directions which are applicable to most criminal trials, and I now want to turn to the question of how you should consider the evidence in this particular case as distinct from what you jurors are going to make of the evidence. The way you should approach it as distinct from what you actually make of it. The circumstances of this case are peculiar such that it is appropriate for me to give this particular warning. And I explain why I give them. But just again on the threshold, in relation to the three counts, if you find that there is support, well, then this warning is not applicable, if you find there is independent evidence. But if you are not prepared to say, because of the controversy about that evidence, if you are not prepared to say that that supports it, well the, all of these sexual counts are not supported by independent supportive evidence. You understand that. (212) And it is important that you understand that because if you find that those three counts are supported, well then this warning is not appropriate. But if you do not, well, then you must take the warning into account. But the warning is applicable to those other nine counts of alleged sexual misconduct because there is no supporting evidence.(213) And in giving you this warning I am not merely repeating the arguments of counsel, I am giving you directions in law which you are obliged to follow and implement in your consideration of the evidence in this case. And in so warning you let me make it clear that it is not given simply because this is a sexual case. That really has nothing to do with it. A complainant in a case involving an allegation of a sexual offence is, in this regard, in no different position to someone who is complaining about any other criminal matter, whether it be an allegation of robbery or wounding or dishonesty or other types of criminal behaviour where guilt has to be established beyond reasonable doubt. It is a warning given in a judge's charge that must be given in cases of whatever nature, where a complainant's evidence in a criminal trial is not supported by corroborative evidence, as is the case in nine of these counts and as may well be the situation in three of them. Depending upon your judgment about that. And corroboration is evidence from a source independent of the complainant which implicates the accused person in the crime charged by tending to show that the crime was committed and that the accused was the person who committed it. Now, I repeat, in the case of nine there is no such corroborative evidence. In three there is evidence capable of amounting to corroboration. Whether you find it is corroboration is a matter for you. Accordingly, you must approach the evidence of (the complainant) on the basis that her evidence in that respect is uncorroborated. Of course you are entitled to act upon that evidence and return a verdict of guilty on it if you see fit to do so. However, you should only return a verdict of guilty based on that evidence alone, if after having anxiously scrutinised the evidence, scrutinised it with great care, having considered all the circumstances that are relevant to its evaluation you are satisfied beyond reasonable doubt of its truth and accuracy." (214)

[121]

"The evidence is that the complainant, ..., first complained of these alleged incidents in January of 1999. And these were about instances of sexual abuse which commenced some time, as she alleges, towards the end of 1995, when she said she was in Grade 4 at school, and the allegations extended to August of 1998. (214) Twelve incidents of sexual misconduct are alleged to have occurred between those dates. So, what I, as the judge must do, is to attempt to emphatically remind you of the context in which you go about your fact finding role. Because you the jury have to make your own evaluation of the evidence in the light of your common human experience. You are expected to bring your good common sense and experience to bear in the assessment of that evidence. (214) However, the law requires of me that you must have particular regard to some circumstances peculiar to this case. And this direction is the distillation of decisions which are very much an integral part of our law. I refer firstly to the delay between the time at which some of the offences are alleged to have occurred and when they were first reported. You will be aware that that delay in this case extends some two to three years in relation to Counts 3 and 4, some two to three years in relation to counts 5 to 10. And Counts 10, 11, 13 and 15 range between six to 12 months. A general complaint was made in the statement to the police, which was recorded on video, and which is an exhibit, and that tape was made on 14 January of 1999. You must, in considering the evidence, have regard to the age of (the complainant) at the time when these incidents are alleged to have occurred. The evidence is that she was born on the 23rd day of November in 1985, so her age over the relevant period progressed from age 11 to just short of her 13th birthday. (215) Human experience is that recollection of events happening during childhood can be wrong and liable to distortion. It is a matter for you. You may think that (the complainant) as a girl aged 11 to 13 was indeed a child. I repeat, a matter for you. The age of (the complainant) at the time of the relevant incident you are considering, taken together with any delay in the reporting of any such incident you are considering, make it essential that you consider the effect of a combination of those circumstances on the memory of the complainant. (215) It is common experience that memory fades or becomes faulty with the passage of time. It is also common human experience that some things stick in an individual's mind and never fade. What you have to advert to is that common human experience. (216) It is also common human experience that over the years a person can convince him or herself that some event did occur. Some people do have faulty memories and some are poor historians. Some have vivid imaginations and some people can engage in fantasy. And you must take those factors into account. (216) I am not talking here of cases where someone deliberately invents an incident, where there is a deliberate falsehood. I am talking of the common human experience, that honest witnesses can be subject to faulty recollection or inaccuracy, or liable to convince themselves that some incident occurred in a particular way in the past. And one cannot ignore the effect of imagination, emotion, prejudice or some form of suggestion on our past events are perceived to have occurred.(216) And after the passage of significant time, in this case you have a girl now aged 15 years, who has recounted the events upon which the Crown relies. You must have regard to the matters of which I have directed you when bringing your good common sense and experience to the assessment of this evidence. (216-217) It is also human experience that a witness can honestly and accurately recall incidents in the past with clarity and can swear to them in a manner which suffices to have a jury believe what the witness is saying. In other words, after the jury has given that evidence the most anxious scrutiny, considered the circumstances relevant to its assessment, and paying heed to this warning that I have given you, the jury is satisfied beyond reasonable doubt as to its truth and accuracy. (217) And I also direct you that after the passage of time a person about whom allegations are made, may and perhaps does tend to lose the means of defending themselves. It can surely be said that had the allegations been made shortly after the alleged event it would or may have been possible to explore in detail the alleged circumstances surrounding the alleged occurrence and perhaps the defendant would be in a position to adduce evidence, throwing doubt on the complainant's version, or indeed producing evidence confirming the accused's denial. Not that there is any onus of proof upon him. You must remember that. After a long delay that opportunity to defend oneself is gone without any impropriety the accused's memory may be faulty, because he is subject to the same human failings of which I have spoken, or it may be non existent about the matters which might provide an answer to a particular charge. And the law requires you to take this factor into account in your deliberation." (217)

[122]

"But if you felt the delay in making a complaint was so long, so inexplicable, subject to a satisfactory explanation, you could take such a finding into account in determining whether the particular allegation you are considering was false. It is for you to say whether in all the circumstances the absence of a timely complaint does constitute behaviour consistent or inconsistent with the allegation made. (222) The circumstances such as I have adverted to, that is the delay in complaining, which factor has been the subject of argument of counsel, the nature of the allegations, that is, allegations of criminal conduct which are not supported by corroborative evidence, the age of the complainant at the relevant times and the problems of potentially faulty recollections, to which I have referred, all point to the potential for error inherent in evidence of this nature. (222) This warning is to direct your mind to that potential for error and that is what you must have regard to. I am not saying there is error, that is not part of my task. Questions of the assessment of the evidence are for you. Those circumstances to which I have just referred highlight the problems from the defence point of view in explaining the matters about and surrounding the alleged offences, although I remind you again there is no onus of proof on the defendant. And the existence of all of those matters, in this case, such as to require me to do just what I have done, the trial judge, to give judiciary authority to the warning that I give you about the assessment of evidence of that type in a case such as this. (222-223) These matters mean that to fulfil your duty of fact finding you must be fully aware of the dangers of convicting on the evidence of the complainant alone, unless having scrutinised that evidence with great care you are satisfied of its truth and accuracy. If you are, you are bound to convict. And as I say, while fact finding is properly a jury function it is the jury obligation to have regard to any comments that I have made in this particular section of my charge. It would be wrong for you the jury in a case such as this to ignore what I have just said by way of warning about the dangers and the potential for error. That is in a case where events are alleged to have occurred some time ago and they are not supported by corroborative evidence. (223) However, having noted the comments and warnings, it is open to you as a jury to convict, after careful scrutiny of all the evidence, bearing in mind the difficulty for the defence and bearing in mind the onus of proof and the absolute necessity of being satisfied beyond reasonable doubt of the guilty of the accused man of the charge that you are considering." (223)

[134]

Mr Meredith submitted that the jury were invited to use findings of guilt on the assault counts and a finding that the uncharged acts of violence occurred, to "explain her state of mind, why she was passive or submissive" (221) and to assess any delay in making complaint in the light of this evidence. He contended that it was open to the jury to use the evidence of the acts of violence as supporting the credibility of the complainant's evidence that the offences were committed. The allegations of violence both charged and uncharged were significant items of evidence relied upon by the prosecution. To have allowed the jury to assess the evidence relating to the allegations of violence without telling the jury that the Longman warning extended to the whole of the complainant's evidence exposed the applicant to the risk that the jury might use a finding based on the complainant's evidence of uncharged and charged acts of violence to support and confirm her evidence in relation to the counts of sexual offences to which the Longman warning was said to be applicable. Counsel cited R. v. Robertson[16] a case of alleged offences where there was no corroboration of the complainant's evidence that they occurred when she was between the ages of nine and 12. She was aged 21 at the time of the trial. Reference was made to portion of the judgment of Winneke, P. with whom the other members of the Court agreed. His Honour was critical of the trial judge merely directing the jury that they "should not accept a witness's allegation of a crime occurring' unless they had carefully scrutinised it and were convinced of its truth." Such a statement, he said, "was scarcely apt to focus a jury's attention on the evidence of the complainant or the reasons why the complainant's evidence was, unsupported, dangerous to act upon." He had earlier stated "It was imperative for the judge to bring home to the jury that the warning which he was giving them was directed solely at the evidence of the complainant and that it was a warning which the law required the jury to pay heed to for a particular reason."[17]

At a glance

Court

Decision date

Before

Source

Judgment (220 paragraphs)

Parties

Cases Cited (4)