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[2002] VSCA 225
Court of Appeal (Vic)
2002-12-20
PHILLIPS, C.J., ORMISTON and EAMES, JJ.A.
Original judgment source is linked above.
"1. The trial judge erred in failing to sever the counts that related to non sexual offences, namely assaults being counts 1, 2 and 14 from the remaining counts which were for sexual offences. 2. The trial judge erred in admitting into evidence, evidence of: (a) uncharged acts of assault and of sexual activity. (b) portions of the complainants VATE tape. (c) portions of conversation between the applicant and the witness "K.K.". 3. The trial judge failed to adequately direct the jury on the use the jury could make of evidence of (a) Uncharged acts of assault and of sexual activity. (b) Portions of the complainants VATE interview. (c) Portions of conversation between the applicant and the witness "K.K.". 4. The trial judge erred in his directions to the jury concerning (a) The manner in which they ought scrutinise, treat, and or consider the evidence of the complainant. (b) The dangers of basing a conviction upon the evidence of the complainant. 5. The trial judge in directing the jury, failed to warn the jury sufficiently as to (a) the manner in which they ought scrutinise, treat, and or consider the evidence of the complainant. (b) the dangers of basing a conviction upon the evidence of the complainant. 6. The trial judge failed to adequately direct the jury on the use of prior inconsistent statements of witnesses. 7. The trial judge failed to adequately direct the jury on the delay of the complainant in making a complaint about the conduct of the applicant. 8. The trial judge erred in directing the jury as to (a) the nature of evidence which could be said to be corroborative of the evidence of the complainant. (b) the matter in which they jury ought to deal with the evidence which was said to be capable of being corroborative of the complainant.
"Ground 8 - The learned sentencing judge erred in the exercise of his discretion in that he did not give sufficient weight to: (a) The applicant's personal circumstances. (B) The applicant's previous good character. (c) The applicant's psychological and physical condition. (d) The issue of rehabilitation. (e) The applicant's cultural background. (f) The applicant's lack of prior convictions."
Counts 5 and 6 - Indecent Act and Cunnilingus in lounge-room
Counts 9 and 10 - Cunnilingus and Indecent Act.
Counts 11, 12 and 13 - Incest & Indecent act with child under 16 (two counts)
Submissions on Grounds 2(c) and 8: Corroboration.
A: The Applicant's Submissions as to grounds 2(c) and 8 - Corroboration
"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."
"Have you given (the complainant) a black eye?" He replied: "It could happen. I am not very correct in if she had the black eye or not when she was complaining to the teacher the next day." He was asked: "Would - would she have been in Grade 4 or Grade 5 at that time?" Answer: "Yes." He was asked: "Okay. And did - well, you would have seen a black eye on (the complainant). Did you see a black eye?" Answer: "Yes, can be...I wasn't watching that - that much." He was asked: "Yeah, but you've just said yes, you did see a black eye, so you would see a black, you would see a black eye on - on your daughter, wouldn't you?" Answer: "Yes, but it wasn't that black. You know, it was." He was asked, "Was it...?" Answer: "Coloured." He was asked: "Coloured?" Answer: "Yes." He was asked: "And was it sort of bruised, was it?" Answer: "Yes." He was asked: "Okay, how did you do that to her?" Answer: "I give her a smack unfort..." He was asked: "A smack on the face?" Answer: "Yes, and unfortunately I hit her a bit higher than..."
"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)
"12 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..." (214)
"I point out to you again, it has been pointed out at the Bar table that there is no evidence, external evidence, to that of the complainant which supports her, and you understand that, if it is the three and the nine charges, and whether you find there is external evidence it is a matter for you. There is evidence capable of supporting her, and whether you accept that, it is a matter for you. (224) It is not necessary, I emphasise as a matter of law to have such supporting evidence, but you may consider the potential for error to be greater in the absence of such supporting evidence."
B: The Respondent's Arguments as to grounds 2(c) and 8: Corroboration
"The essence of corroborative evidence is that it `confirms', `supports' or `strengthens' other evidence in the sense that it `renders (that) other evidence more probable'"[3]
Submissions on grounds 4 and 5: The Longman warning
A: The Applicant's arguments as to ground 4 and 5: Longman Warning
* Did not extend to a consideration of the whole of the evidence of the complainant.
* Failed to adequately emphasise the danger of convicting the applicant on the evidence of the complainant.
* Was not expressed to apply to counts 4, 7 and 15, should the jury be satisfied that there was corroborative evidence touching those counts.
* Was not expressed to operate regarding the evidence led in support of counts 1, 2 and 14 and of the uncharged acts of violence that were admitted in evidence.
* Was not expressed to operate regarding the evidence of uncharged acts of sexual interference.
"The term a `Longman warning' has often been used by this Court as a convenient expression without the need to define exactly its signification."[5]
The genesis of this expression comes, of course, from Longman v. The Queen[6] a case where there had been many years delay between the alleged commission of sexual offences by a man upon his step-daughter of whose evidence there was no independent corroborative evidence. In allowing an appeal against convictions sustained the majority of the High Court observed in a now famous passage of the joint judgment:
"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."[7]
Elsewhere in Arundel, Callaway, J.A. (with whom Charles, J.A. agreed), observed:
"Longman's case is an illustration of a broader principle, namely that a judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of a miscarriage of justice."[8]
"...whether a warning carrying the authority of the judge's office is called for, and in what form, will depend upon what the interests of justice require in the particular case. In general terms, it can be said that such a warning should be given whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case." (8)
"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)
"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)
"In a number of cases in state courts, the existence of some corroborative evidence has been held not to relieve a trial judge of the duty to give a Longman warning where the considerations identified in Longman are or might still be relevant. In my opinion, this is the correct approach. To the extent that a jury might, in their reasoning, rely on an acceptance of a complainant without taking into account the special forensic dangers mentioned in Longman, those dangers will remain. In cases of long delay that fact will impose the duty to give a Longman warning so that the jury will take it into account in reaching their verdict."
Elsewhere in Doggett Gaudron and Callinan, JJ. set out a number of reasons why they considered a Longman direction was necessary in that case. Circumstances touching some counts made the complainant's recollection of some matters questionable; the complainant's explanation for fixing the times of commission of some counts was unlikely; an apparently independent witness categorically disputed an aspect of the complainant's evidence; the trial revealed discrepancy as to the dates of some offences; the case might well be one of denial to the person accused of forensic weapons which a timely complaint would allow him to assemble and the corroboration available did not necessarily establish criminal sexual molestation. I shall return to this case in stating my conclusions.
"(3) The delay in complaint, together with the other circumstances of the case, required the trial judge to charge the jury in terms calculated to afford them a full appreciation of the danger of proceeding to convict on the evidence of the complainant unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. The direction given by the trial judge was not adequate for this purpose."
"The case against the applicant depended in some important respects upon the evidence of the complainant alone. It was part of the defence case that the evidence said by the prosecution to be corroborative of the complainant was not corroborative at all. The charges had arisen largely because the complainant had been talked into discussing the contents of her `secret' note with the Student Welfare Co-ordinator at her school. There had been no complaint regarding the incident constituting count 1 until the complainant made her statement to the police."[14]
"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, whilst 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. 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 guilt of the accused man of the charge that you are considering." (223) (Emphasis mine.)
B: Respondent's Arguments as to grounds 4 and 5: Longman warning
"...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."
Subject to his description of the warning, he argued that such a warning is not concerned with evidence that is corroborated.
"It would be wrong to believe, as current practice is tending to suggest, that, in every case in which multiple sexual offences are alleged, the trial judge is bound to give a warning of the type which the Court in Longman suggested should have been given in that case. The Court was not suggesting that, simply because credibility issues had arisen between the complainant and the accused, the former rule of practice was to be supplanted by some other form of warning, masquerading as a comment to be made by the judge pursuant to s.61(2). It should not be forgotten that the Court in Longman was dealing with events which were more than 20 years old and where the circumstances made it obvious that it was far easier to make the allegations than to refute them."[22]
"It is part of the law that if what is called a recent complaint is made in a sexual case evidence of that complaint is admissible. The purpose of it being admitted is to demonstrate consistency with the evidence given about the incident or incidents. There used to be an old fashioned idea, and it may be still the position, that people who are sexually abused usually complain about it. But experience shows that there are circumstances where relationships exist, and it is argued that this is such a case. That where these relationships exist that there is a good reason why a complainant does not complain." (220)
Conclusions as to Grounds 2(c) and 8: Corroboration
"As far as discussions about (the complainant) were concerned, there were concerns expressed to you by (the applicant), your husband, that if she went out to parties that there might be problems about her losing her virginity. Do you agree you had discussion along those lines with him?" She replied: "She was not allowed to go anywhere. She was not allowed to go to the school excursions because according to (the applicant) 12 year old boys is going to be there, Year 6 she was supposed to go for a school excursion, and she was not allowed to have friends, she was not allowed to watch TV."
Conclusions concerning Grounds 4 and 5: Longman Warning
"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...the way you should approach it..." (212) "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." (213) "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." (214) "However, the law requires me (to tell you?) that you must have particular regard to some circumstances peculiar to this case." (215) "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)
"...as we have already indicated, the corroboration was capable of establishing some undefined sexual molestation, probably improper, but not necessarily criminal in the respects alleged in the counts, and therefore not of such a nature as to relieve the trial judge of a duty to direct the jury in terms of Longman...".[38] "An important distinction between this case and Longman is that there was no evidence corroborating the complainant's evidence in Longman. In this case there was evidence that strongly corroborated the complainant's evidence."[39]
"Of course you are entitled to act upon that evidence (the evidence of the complainant) 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) "...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." (223)
"It is just as night follows day, simply because you take a position on one count, whether it be guilty or not guilty, put it aside; consider the evidence relevant to the next count...But each count has to be given separate consideration and I repeat, it would be wrong to say that because you reach a verdict on one that that really has any influence on the facts relating to the next one. Consider it, put it on one side. Separate consideration. Each count must be considered separately and in the light of the evidence that is applicable to it." (196)
(This part of the charge also makes it clear that each count had been "compartmentalised" for the jury by the Crown Prosecutor in his final address.)
Application for leave to appeal against Sentence
Counsel: "And rehabilitation aspects as well. Your Honour's well aware of those." His Honour: "Yes."
under consideration. In this application, no identifiable error has been otherwise argued. In those circumstances, one then is obliged to look at the face of the sentence for evidence that in some way the judicial discretion has miscarried in the manner alleged. Performing that exercise, I am unable to find such evidence. Specifically, the term of the non-parole period fixed is consistent, in my view, with a deal of weight having been given by his Honour to rehabilitation. I am far from satisfied that this sentence, substantial though it be, is in any way the product of a judicial failure to give proper weight to relevant matters. To my mind, after giving due weight to matters personal to the applicant, the continuance and serious nature of his offending; his lack of remorse and the emotional damage inflicted on the complainant made a sentence to the order imposed inevitable. I would dismiss this application.
other occasions, the necessary elements were stated and repeated on a number of occasions and it was made abundantly clear that it would be dangerous to convict in the circumstances "on that evidence alone".[42] The jury were correctly directed that there was no possible corroboration in respect of nine of the counts relating to sexual offences but that in relation to three other sexual offences the jury might find that there as corroboration. I do not accept that there was not an appropriate warning in respect of those other three counts. Properly understood the later High Court cases such as Doggett v. The Queen[43] do not require the jury to be told that it is dangerous to convict even though there is adequate corroboration. What those cases decide is merely that, unless there be exceptional circumstances, the jury should be warned in relation to all relevant counts despite the existence of apparently strong corroborative evidence, so that it should be left to the jury whether that evidence is accepted and provides sufficient corroboration to overcome the "danger" expressed in the warning which is required to be generally given. The question of corroboration was not taken away from the jury in this case. The other matters raised were of no ultimate consequence and in particular a complaint about the the agreed assumption that it was necessary. The two grounds related generally to the adequacy of the warning (grounds 4 and 5) but, although the warning was inelegantly expressed[44] and is therefore by no means a model to be emulated on particularity of the charges was one which counsel at the trial did not see fit to raise by way of exception.
Both the admissions relating to the assaults and the conversations relating to the complainant's virginity were capable of being used by the jury in the manner left open to them by the judge. Nothing in what the judge said would lead me to the conclusion that there was any miscarriage by reason of his directions on this subject. Likewise there was no error by the judge in admitting into evidence the conversations complained of in ground 2(c).
[1] Longman v The Queen [1989] HCA 60; (1989) 168 C.L.R. 79: This is addressed in grounds 4 and 5.
[2] [1990] HCA 51; (1990) 171 C.L.R. 207 at 211
[3] [1990] HCA 51; (1990) 171 C.L.R. 207 at 211
[12] [2001] HCA 46; (2001) 182 A.L.R. 1; (2001) 75 ALJR 1290
[23] [1998] 4 V.R. 182, at 193
[38] Doggett, at [53], per Gaudron and Callinan, JJ.
[39] Doggett, at [65], per McHugh, J.
[41] Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79.
[42] Longman at 91. The use of the word "alone" clearly refers back to the expression "the uncorroborated evidence of the complainant" which appears at the beginning of the paragraph at p.90.
[44] It unfortunately broke up the necessary directions by dealing first with corroboration and then, several pages later (in the transcript), giving a general Longman warning.
R
FVK [2002] VSCA 225
CRIMINAL LAW - Evidence - Adequacy of directions - Sexual offences against child - Delay in complaint - Corroboration - Whether adequate Longman warning - Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79.
(2001) 75 ALJR 1290
(1990) 19 NSWLR 91
(1973) 129 CLR 460