R v G A M [2003] VSCA 185

R v G A M [2003] VSCA 185 - VSCA 2003 case summary — Zoe

[36]

It was contended by Mr. Silbert under cover of this ground that a direction which had been given by the trial judge in respect of a submission made by the prosecutor alleging against the applicant the telling of "guilty lies" was erroneous and prejudicial to the trial. It had become apparent from the record of interview made by the applicant to the police that, shortly after he had become aware of the allegations being made against him by the complainant, he had taken a bundle of clothes from, inter alia, the complainant's room and had washed them. The prosecutor had cross-examined the applicant at some length during the course of the trial about these events, suggesting to the applicant that he had done so for the purposes of eliminating incriminating evidence. This cross-examination exposed inconsistencies between the evidence given by the applicant on the trial and his answers given to the police in the record of interview. In the course of reminding the jury about the submissions which had been made by the prosecutor following the conclusion of evidence, his Honour gave to the jury a direction in respect of the Crown's submissions that the applicant had told lies both to the police and when giving evidence about his reasons for washing the clothes. In the course of those directions, his Honour, in essence, told the jury that they could only draw an inference adverse to the applicant (as the Crown had asked them to do) if they were satisfied beyond reasonable doubt that the false statements were made, that they were lies, that the accused knew when he made them that they were untrue, that the only reasonable explanation for telling them emanated from his consciousness of guilt and for no other reason such as a desire to escape unjust or unfounded accusations or other matters. The judge then went on to tell the jury of a number of reasons, consistent with innocence, that might have precipitated the conduct. As I have said, no exception was taken to these directions. It is now put by Mr. Silbert not only that the directions were inappropriate, but that the matter should not have been raised by the prosecutor in the first place. It was submitted by Mr. Silbert that the evidence was incapable of establishing a lie told through consciousness of guilt, and that any such lie could at best go to the applicant's credit. It was put that there was no source independent of the accused which was capable of establishing the lie, and that the direction given was a "half baked Edwards direction"[6]. Mr. Silbert submitted that, because this was a case of "oath against oath", the prosecutor's wrongful conduct and the directions by the judge were capable of tilting the balance of the trial. The judge's directions, it was contended, elevated the matter to the point where it caused a miscarriage of the trial.

[58]

These two grounds were argued together because ground (2), which alleged a failure to give a "Longman warning" was intertwined with counsel's submission that the jury's verdicts were unsafe. Counsel contended that the case against the applicant at trial rested solely on the evidence of the complainant and was therefore a case of "oath against oath". The nub of the contention on behalf of the applicant in this Court was that the complainant's evidence, as gleaned from the transcript, was replete with concessions of lack of recollection and refreshment of memory by recourse to the statement made by her to the police. These concessions were, so it seems, made during the course of cross-examination of the complainant. That cross-examination reflected a poverty of recollection of events, so it was said, which had occurred about two years before the trial. It was put that in a case like this which was based entirely upon the complainant's evidence, the jury was in no position to evaluate the accuracy and reliability of that evidence, and that therefore the verdicts were unsafe. At the very least, so it was put, the judge should have given a warning to the jury that it would be dangerous to convict on the uncorroborated testimony of the complainant unless after thoroughly scrutinising that evidence, and paying heed to the warning being given, they were convinced of its truth and accuracy[11]. It was submitted that the "overall effect" of the complainant's evidence was that she lacked the requisite memory to give the evidence which she gave, and had attempted to memorise and recite the contents of the statement provided to the police. It was further contended that the evidence of the complainant was "inherently improbable" and that it disclosed that she (i.e. the complainant) was unhappy in the family home and harboured feelings of resentment towards her parents. In these circumstances, so it was put, the complainant's evidence lacked the quality of evidence upon which the jury could safely return the verdicts which it did.

[63]

For my own part, I do not accept that the record of the proceedings portrays the types of inadequacies in the complainant's evidence which would render the verdicts unsafe in the sense explained by the authorities. Those areas in which the complainant professed a lack of recollection were matters peripheral to the events of substance. Thus she professed to have a lack of recollection of specific dates and times, what she was wearing at particular times and where the members of her family were at particular times. Those matters, she candidly conceded, were matters upon which she had refreshed her memory by looking at her police statement. However, she was adamant that she remembered everything that her father "had done to me"; and that those were matters which she could not forget. It seems to me that the transcript reveals that her evidence in respect of the events which were central to the charges was unshakeable and apparently clear. Of course, trial counsel relied upon the complainant's professed lack of recollection as to subsidiary events as indicative of the lack of credit in her testimony as a whole; that was put during her cross-examination of the complainant; and calculated, no doubt, to invite the jury to carefully scrutinize that testimony. It is true that the complainant's evidence was critical to the proof of the prosecution case. The jury were well aware of that. But the significance of the evidence does not, of itself, render it unsafe or unsatisfactory. For my own part, and reading the transcript of the complainant's evidence from this distance, that evidence does not bear the hallmarks of untrustworthiness; or as being of a nature which rendered it incapable of being left to the jury for their consideration. Indeed this was a case (unlike many cases of its kind) where the evidence of both the complainant and the applicant was given and tested in the full gaze of the jury. There are many cases of sexual assaults against children where such an advantage is not given to the jury. Procedural changes in this State, wrought by statute, have led to a situation where evidence-in-chief of complainants is often given by the VATE tape procedure and from a location remote from the court room. In contrast, the procedure adopted in this case left the jury in a sound position to assess and evaluate the whole of the evidence given by the complainant on the one hand and the applicant on the other. In the circumstances, I would reject the proposition that the verdicts returned by the jury were unsafe because of the lack of quality of the complainant's evidence; nor do I accept that this was a case where there was any requirement on the part of the trial judge to give a warning to the jury of the type referred to in Longman v.R.[14]. No such warning was called for by counsel, and in my view the circumstances of this case did not require the judge to give one.

[82]

For my own part, I do not think it could be said that the individual sentences imposed for each of the offences of which the applicant was convicted are manifestly excessive. The only thing which appears to be "odd" about those sentences is the fact that the heaviest sentence imposed by his Honour was in respect of count 7, a conviction for "attempted incest", which was a penalty in excess of the penalties imposed for the three counts of incest upon which the applicant was convicted. This, I think, reflects his Honour's view that the attempted anal penetration, which was the subject of the events of 5 January 2000, was a far more serious event than the completed events of incest which appeared to have been treated by his Honour as "low in the scale of a crime of incest". It is further to be noted that, whilst his Honour appears to have taken this general view of the applicant's offending, he has ordered significant cumulation of all sentences following the sentence upon count 1 - i.e. a sentence for indecent act. It is somewhat odd that his Honour structured his sentence by ordering cumulation upon the four months' imprisonment imposed on count 1 - the lowest sentence imposed in respect of an individual count. Such a practice tends to create a distortion in the overall sentence by assigning undeserved primacy to the least serious offence[15]. No doubt this sentencing pattern was influenced by the fact that in respect of most of these counts his Honour was being called upon to sentence the applicant as a "serious sexual offender" within the meaning of the sentencing legislation in this State which, as I have said, requires the judge to cumulate sentences committed by a serious sexual offender unless otherwise directed. Nevertheless, his Honour has cumulated a significant portion of the sentence which he imposed upon count 2, which was not a sentence imposed upon the applicant at a time when he fell to be treated as a "serious sexual offender". However, as I have already said, he did not believe it was necessary to impose a sentence longer than that which was proportionate to the gravity of the offences of which the applicant had been found guilty. He, therefore, said that he would not disregard the principles of totality. It is my view, however, that his Honour has, to an extent, disregarded those principles by the degree of cumulation which he has ordered in respect of the offences committed. I agree wholeheartedly with his Honour that this type of offending is to be abhored; but it could not be ignored that there were in this case four isolated occasions of offending, in respect of three of which two offences were laid. Counts 1, 3 and 6 alleged offences which, to my mind, were a prelude to, and part of, the events which resulted in the act of incest or attempted incest which was the culmination of those events, To cumulate significant portions of each of the sentences imposed, in these circumstances, seems to me to have been an error which has produced a total effective sentence which is out of proportion to the total offending. The cumulation achieved by the method which his Honour adopted amounts to more than 50% of the individual sentences imposed. In my view, the total effective sentence produced in this way is thus demonstrated to be excessive.

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Judgment (98 paragraphs)

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