R v G E C [2001] VSCA 146

Court of Appeal (Vic)|2001-09-06|Before: CHARLES, BATT and VINCENT, JJ.A.

The applicant pleaded not guilty in the County Court at Melbourne, on 24 July 2000, to a presentment containing 12 counts of sexual offences alleged to have been committed, between 1 February 1979 and 31 December 1981, against the daughter of his then de facto wife.

At the completion of the presentation of the prosecution case, the trial judge directed the jury to acquit the applicant in respect of three of the counts. After a period of deliberation the jury returned verdicts of guilty on all the remaining charges.

A plea in mitigation of penalty was, in due course presented, and, on 1 August 2000, the judge sentenced the applicant as follows:

On count 1 (indecent assault on a girl under 16 years of age) -3 months' imprisonment ;

On count 2 (indecent assault) - 12 months' imprisonment.

On count 3 (indecent assault) - 12 months' imprisonment.

On count 4 (indecent assault) - 18 months' imprisonment.

On count 5 (attempt to procure an act of gross indecency with a girl under 16 years of age) - 18 months' imprisonment.

On count 6 (carnal knowledge of a girl under 10 years of age) - 24 months' imprisonment.

On count 7 (indecent assault) - 12 months' imprisonment.

On count 8 (carnal knowledge of a girl under 10 years of age) - 24 months' imprisonment.

On count 12 (indecent assault) - 12 months' imprisonment.

His Honour directed that 12 months of the sentence imposed on count 8 be served cumulatively upon the sentence imposed on count 6, that three months of the sentence imposed on count 2 be served cumulatively on those two sentences and that six months of the sentence imposed on count 12 be served cumulatively on all other sentences. This created a total effective sentence of three years and nine months' imprisonment, in relation to which a non-parole period of two years and three months' was fixed. It is to be noted, that consequent upon the conviction of the applicant on count 2, he was, in respect of counts 3, 4, 5, 6, 7, 8 and 12, sentenced as a serious sexual offender.

The applicant now seeks leave to appeal against his conviction on each count on the following grounds:

"1. The learned trial judge erred in ruling that there was a case to answer on count 1 in the presentment.

2. The learned trial judge failed to adequately direct the jury on the effect of the failure of the complainant's mother, prosecution witness Mrs T, to give evidence of a conversation alleged by the complainant to have taken place immediately after alleged events said to constitute the counts 11 and 12 in the presentment.

3. In respect of the issue of corroboration, the learned trial judge failed to adequately direct the jury that:

(a) generally, there was no evidence capable of amounting to corroboration;

(i) the conversation referred to in appeal ground 2 could not be used as corroboration of the alleged offences.

(ii) a conversation alleged by Mrs T to have taken place between herself and the appellant regarding the complainant becoming sexually active could not be used as corroboration of the alleged offences;

(iii) evidence of an intervention order taken out by the complainant against the appellant in about 1990 could not be used as corroboration of the alleged offences.

4. The convictions are unsafe and unsatisfactory in that:

(a) The complainant's evidence was based on her recall of events which had allegedly occurred between about 19 and 21 years ago when she was aged between 7 and 10 years old;

(b) the first complaint of the allegation was made, in general terms only, to her mother at least two years after the last alleged offence;

(c) the first complaint of the allegations was made in the context of her mother questioning her about a sexual relationship with a neighbour;

(d) details of the allegations were first particularized in May, 1986 when the complainant first made a statement to police, more than five years after the last alleged offence;

(e) there was no corroboration of the complainant's evidence of any nature;

(f) the complainant's evidence on some counts in the presentment was inherently improbable and was generally vague, imprecise, hedged or equivocal;

(g) prosecution witness Mrs T failed to corroborate the conversation referred to in appeal ground 2;

(h) there was sworn evidence from Mrs T that she believed that the complainant and the appellant had a happy relationship;

(i) there was sworn evidence from Mrs T that she had no suspicions at all that the appellant had been sexually interfering with the complainant;

(j) there was incurable unfairness to the appellant arising from the delay and the consequent loss of any means of testing the allegations by way of a possible alibi or otherwise;

(k) there was undisputed evidence that the appellant emphatically denied the allegations at all times;

(l) there was evidence of conduct of the complainant which was not generally consistent with her allegations;

(m) there was evidence from which it could be inferred that the complainant had a motive to lie;

(n) the jury must have entertained a reasonable doubt as to the guilt of the appellant; the verdicts of the jury resulted in a miscarriage of justice."

The complainant was born on 22 September 1971. Accordingly she was aged seven-and-a-half years, in February 1979, when the applicant who had commenced a relationship with her mother began to reside with the family in their home in Morwell. According to the complainant, about three months later, she was present in the lounge-room of the premises when the applicant started to touch her "where my breasts were" (count 1), and "in between my legs" both over and beneath her underwear (count 2). She stated that the incident took place during an evening on which her mother was absent from the home, probably playing bingo; the complainant, together with her brother and sister who were both younger, having been left in the care of the applicant. She stated that the applicant told her that, if she said anything to anyone, including her mother, about what had happened, she would be placed in a home, she would not see her brothers and sisters again and he may go to gaol. She stated that as her mother and father had, at that stage, separated only shortly before, these threats worried her and, accordingly, she did not report what had occurred until much later.

The next incident, about which the complainant gave evidence, took place, she said, on a night prior to her ninth birthday and during the football season of that year, whilst the family was staying at the applicant's mother's house in North Bendigo. On this occasion, her mother and the applicant's mother had left to play bingo, with the children again being left in the care of the applicant. During the evening and after she had gone to bed, she rose to get a drink of water. She passed through the lounge-room where the applicant was watching television. He spoke to her and took her to the couch in that room. He undressed until he was naked. She was wearing a nightgown and underwear which he removed. He had an erect penis that he told her "would get big if she touched it". She said that she did not respond to this suggestion. He then took her hand and pushed it on to his penis (count 3). He picked her up and positioned her on the couch so that she was situated on his chest as he lay on his back with her face near his penis. He kissed her between her legs and licked her vagina (count 4). She said that he tried to persuade her to kiss his penis and told her that, if she kissed it and sucked it, it would "get big". He kept trying to push her down on to his penis, she said, (count 5). The complainant stated that she tried to move away, however the applicant prevented her from doing so. He sat up and pulled her leg over his body so that she was sitting facing him with her legs straddled across his lap. He then tried to push her hips down on to his penis. She said that "I could feel it and it hurt and I was trying to get off ... I could feel the pain of him pushing inside my - his penis in me. I was trying to get off". With respect to whether she was penetrated, she further said that "All I can remember is it hurt ... I could just feel it. It just hurt. I just wanted to get off." (Count 6). She stated that the incident came to a conclusion when her mother's vehicle entered the driveway and its headlights shone through the window. She got up, grabbed her nightgown, and underwear and ran and hid in her bed.

The complainant described an incident that she stated occurred during a period in which her mother was in hospital, suffering from toxaemia related to pregnancy. It took place at night when the complainant was sleeping with her brother and sister in her parents' double bed. She was positioned in the middle of the bed, and between her siblings, when the applicant came into the room and picked up the younger girl whom he moved to the other side. He asked the complainant whether she was awake and then picked her up and took her into the lounge-room where he laid her on the couch. He was undressed and his penis was erect. He touched the complainant's vagina and placed his fingers inside her (count 7). He then moved to a position on top of her, pushed her legs apart and tried to penetrate her. She stated that she was not able to struggle to any effect but that she endeavoured to get away from him. She said that he penetrated her but that she was unable to provide an estimate of the time involved (count 8).

The final count on which the applicant was convicted related to an occasion on which, according to the evidence of the complainant, she was present in a bathroom having a shower, when the applicant passed through the room on the way to an adjoining toilet. The shower was situated over a bath. She was about to get out of the shower when the applicant returned and commenced to undress. He said that he was saving water and got into the shower with her. She tried to push past him. He asked her whether she had washed properly and said that he wanted to check. He then forced her into a corner against the wall. He put his hand between her legs, placing his finger inside her vagina. He said "Don't call your Mum, don't do anything. If you do I'll hurt you." She said that he then rubbed her until she experienced a tingling sensation (Count 12). He then asked her "Did that feel good?" She said that she looked at him with disgust and tried to get out. At that point, her mother entered the room to go to the toilet. The complainant said, in evidence, "Mum said something. She just wanted to know what was going on. G said that he was explaining where semen comes out from, where babies are produced from." The complainant said that she dressed and then locked herself in her bedroom. She stated that "she did not want to know about it" and that she spent the rest of the day hiding in her bedroom. The complainant said that, although there were other incidents of sexual offending, she was unable to put specific times and dates to any of them and no detail was provided.

The conduct ceased, she stated, following an incident that occurred when she was about 12 years of age. On one night when she felt cold, she rose from her bed and went into the lounge-room where she stood in front of a heater. She did not realize that the applicant was present until he approached her and asked "How about one for old time's sake?" She said that she responded "You come to me with that again (referring to his penis) and I'll cut it off." She then kneed him in the groin.

She did not tell anyone about the applicant's behaviour because she was too scared. She said that, particularly after the birth of a child of their union, the applicant had become violent towards her mother, hitting her a few times. He had also threatened to take the baby away if her mother left him. She stated that, at one stage, her mother questioned her concerning a suggestion or claim she had had a sexual relationship with a boy who lived next door. She was asked whether she had ever engaged in sexual activity or been sexually involved with anyone before. She said that her mother "hounded" her with this question until she finally yelled, "For crying out loud, don't you realize it was your husband." She stated that her mother looked shocked and left the room. She then returned and told the complainant that she did not believe her and that she had made this allegation in order to divert attention from her involvement with the young neighbour. The complainant said that, as a consequence of this reaction, she considered that no one would believe her and, accordingly, made no further complaint "for a long time". She denied that, realistically assessed, she had had any earlier opportunity to tell her mother about the offending.

In 1986, after the complainant had moved out of her mother's home, she attended at a police station and made a statement. Not long afterwards, she learned that the applicant, with her mother and the three other children had gone to live in Queensland. In 1997, after learning that there was no limitation period upon the making of such a complaint, the complainant made a further statement to the police.

This version of events was challenged in cross-examination. The applicant agreed that she did not express objection to the marriage of her mother to the applicant and accepted that she participated as a flower girl in the ceremony. She explained that she was expected to be present and asserted that, for practical purposes, she had no choice in the circumstances. She conceded that, from time to time, she may have given the applicant minor signs of filial affection. She agreed that, at some point after the wedding, the applicant was absent from the family home for several months while he was working as a plasterer at Rosebud. She was aware that her mother learned that he was being unfaithful to her and that a fight developed between the two adults in the course of which the applicant struck her mother, causing black eyes and knocking out some teeth. It was put to her that the complainant said to him "If ever you lay a hand on my mother like that I will fix you up in a way that is water-tight." She said that she could not recall saying that and asserted that it was most unlikely that she would have used such an expression as she was scared of him. She claimed that she had complained to her mother of sexual abuse, as earlier mentioned, prior to the happening of the incidents at Rosebud. She agreed that at around this time she had a boyfriend and that there was considerable animosity between the applicant and this person. She denied that she rebelled against any special limitations imposed upon her by reason of her relationship with her boyfriend.

After the return of the applicant, her mother and the other children from Queensland in 1989, the complainant renewed contact with her mother and siblings. This, she said, also led to contact with the applicant. She agreed that, in 1992, she gave birth to a stillborn child. She recalled her mother visiting her when she was in hospital at that time but had no memory of the applicant doing so. It was put to her that he had attended and that she embraced him and she went outside to a balcony with her visitors where she had a cigarette with him. She said that, at the time of her mother's visit, she was connected to catheters and intravenous drips and that this could not have happened. The complainant agreed that when her son, who was born in 1988, was a little boy there were occasions on which she sent him to stay with her mother and, accordingly, with the applicant. She said that she did not consider that the child was at risk on such visits as she believed that the applicant was only interested in girls. She stated that she preferred that her son should not associate with him but felt that her mother had a right to see her grandchild. She said that she did not want to go to the applicant's house herself. She was aware of one occasion on which her son had gone on a trip with the applicant in his truck, but she said that her younger brother was present at the time. She denied that the applicant had ever stayed at her house alone. There were a few occasions on which he stayed overnight but on each he was in the company of her mother. When she made a second statement in 1997, she was not aware that her mother had broken up with the applicant. She was cross-examined as to asserted discrepancies between her two statements but maintained that her evidence was true.

The complainant's mother also gave evidence in the trial. She said that she had thought at the time that the applicant was "very good to the kids, very friendly and very loving and affectionate". She considered that the relationship between the complainant and the applicant was happy although she became conscious of the presence of some tension between them at some time prior to 1983. There were several occasions, said the witness, where the applicant shut the bedroom door and talked to the complainant. She stated "He was either chastising her or having a father/daughter talk." She, the witness, was told specifically on one occasion to go away. The complainant did not express any objection to participating in the wedding between the applicant and her mother.

She said that she spoke to the complainant after she had been caught being sexually active with a young male who lived next door. The witness asked her daughter if this was the first time that she engaged in such behaviour and received the response "For goodness sake Mum, how can I tell you when it's been your husband." She said that the complainant then burst into tears and was too upset to say more. The witness was left dumbfounded having, she stated, no prior suspicions. She confronted the applicant who denied it. She did not believe her daughter and experienced what she described as a lot of conflict. It was after that occasion, and some four or five months after their marriage, that the applicant went to work in the Rosebud area. She agreed that when the complainant found out that she had been struck by the applicant she was angry with the applicant.

Some years after the birth of her son C, but prior to her daughter's complaint, the witness had a conversation with the applicant about the complainant's stage of development. She stated that he indicated that he felt that she was becoming sexually active too early and he did not want her to have her first experience spoiled by a young lad. He said that he wanted to show her that sex could be a beautiful experience. The witness responded, she said "Over my dead body. Don't even think of something like that." She repudiated the suggestion put to her in cross-examination that this conversation did not occur.

The family moved to Queensland as it was considered that the climate would be better for the witness who suffered from asthma and because it was felt there were better work opportunities for the applicant in that area at the time. After they returned to Victoria, the complainant did not come to see them for about two years. She then stayed with them on one occasion. The witness was not aware of any periods when the child of the complainant would be left alone with the applicant. She said that the complainant may not have been told about the child being taken on a trip to Sydney with the applicant and the child C. The witness said that she had a poor recall of the occasion on which the complainant was visited in hospital, but accepted that the complainant had joined her, the applicant and the complainant's husband for a cigarette on a balcony. She said that the applicant had exhibited animosity towards the complainant's boyfriend previously mentioned and that she had separated from the applicant in December 1997.

An edited audio tape-recording of an interview conducted by investigating police members with the applicant was tendered in evidence. In the course of that interview, he denied all of the allegations made against him.

The applicant gave evidence in his own defence. He confirmed the general background with respect to the dates and the relevant relationships earlier recounted.

He said that, initially, when he commenced to reside with the family, the complainant who was upset by her parents' break-up, was uncomfortable about his presence but that, after a period of time, she came to regard him as a father figure. He said that she became rebellious as she approached 13 years of age and developed a very "blank-eyed" look. He said that she was, however, at the time of the wedding a typical happy flower-girl.

He agreed that the complainant's mother and he fought at Rosebud, in late 1983. Some weeks later, at the beginning of February 1984, he returned to the family in Morwell. The complainant's mother picked him up in Rosebud and on the drive home told him that there was a young male of about 18 or 19 years of age "on the scene". The applicant said that, in view of the complainant's age, he had expressed reservations about that relationship.

Upon his return to the house and in the presence of her boyfriend, the complainant, who was then 12 years of age, said to the applicant, "If you ever, touch my mother like that again, I will get you, I'll get you in a way that's watertight". He said that it was a couple of weeks after this statement that the complainant alleged to her mother that he had abused her. He said that, when the claim was relayed to him, he emphatically denied it. The complainant responded, he said, to his dislike of her boyfriend by leaving home for a few days. Thereafter, she displayed hostility to the applicant that he attributed to his evident dislike of her boyfriend.

He later took the complainant's mother and the three young children to Queensland where he thought work would be more easily obtained and for the benefit of the complainant's mother's health. They returned to Victoria, in 1989, following the death of the applicant's brother and the sustaining of injury by his mother. He was not contacted by the complainant until Christmas 1990 when the police served him with an intervention order secured by her. Social contact was eventually resumed at the time of the complainant's wedding to which the family was invited.

During 1992, he heard, when he was engaged in a truck-driving job in Sydney, that the complainant was in hospital in Melbourne. He immediately went there. When he saw her, he said, both burst out crying and they hugged each other for a couple of minutes. The complainant's husband then arrived. Later, during the visit, the complainant said "Let's get out of here, I need a smoke. Let's go." The applicant stated that the group, which included the complainant's mother, walked out to a balcony where they remained for 20 to 30 minutes smoking, and talking about the applicant's "reckless" drive from Sydney.

The applicant often spent time, he said, with the complainant's son when he was a young boy. The first such period would have been at around Christmas 1991. He saw the child approximately on 10 further occasions between that date and 1997. The complainant also stayed "often" with the family. She never expressed concerns about his being alone with the child and on at least two occasions the boy travelled with the applicant on substantial trips in his truck. The complainant knew and approved of this. On the first such trip they were accompanied by her brother C; on the second, a journey from Morwell to Sale the applicant was alone with the child. The applicant had stayed that night at the complainant's home. He said that he did this on about half-a-dozen occasions. He would sleep on the floor in the boys' room and there was no concern expressed by her at any time about his presence.

In September 1997, the applicant had an argument with the complainant's mother in which a brief struggle developed between them. About a fortnight later, she went to Morwell to visit the complainant. When she returned, she was clearly upset and told the applicant that her daughter had renewed her accusations. Again he emphatically rejected the allegations that he understood had been made against him.

He agreed, in cross-examination, that he had the opportunity to commit the offences referred to in counts 1 to 6. He agreed that the complainant's mother was absent in hospital for periods as described in counts 7 and 8. He denied that the bathroom at the premises at Hare Street had a combined shower over bath arrangement, but agreed that there was a shower and that the toilet could be accessed through the bathroom. He agreed that he could have passed through the bathroom to the toilet whilst the complainant was showering, but denied that the offence described in count 12 had taken place or that he had ever entered the shower in the bathroom whilst she was showering. He denied that the final approach discussion described earlier, and which the complainant asserted took place when she was about 12 years of age, had occurred. The applicant agreed that the problem concerning the young male neighbour had arisen before he went to Rosebud, but maintained that the first complaint of misconduct was made after that time. Ultimately he said, "To be honest with you, I am not 100 per cent sure of anything any more." The applicant denied having had the conversation reported by her mother in respect of his aspirations for the complainant's first sexual experience.

I turn now to the consideration of the grounds relied upon by the applicant.

This ground has been abandoned and need not be addressed.

As earlier indicated, the complainant stated in evidence that at the time of the shower incident that gave rise to counts 11 and 12 (count 11 being one of those on which the applicant was acquitted by direction), her mother entered the bathroom and asked the applicant what was happening and that he responded that he was explaining to the complainant "where semen comes from, where babies are produced from". No mention of any such observation or conversation was made by the complainant's mother in her evidence in chief, nor was she asked any questions concerning any such incident in cross-examination, by the applicant's counsel which concluded shortly prior to a luncheon break. On resumption counsel for the applicant then sought the recall of this witness, stating that he had overlooked the matter. The trial judge then informed the parties that he had received a note from the jury during the break which read "We request that the mother confirms the incident in the shower and the excuse that followed from Mr C." Discussion then took place as to the appropriate course to adopt in the circumstances. The prosecutor indicated that, as there was no reference to the matter in the witness's statement to the police, he did not consider that it would have been appropriate to raise the subject without any knowledge as to what she might say.

The possibility that the witness be recalled and the matter addressed on a voir dire was then considered.

His Honour ultimately decided that that course should not be adopted saying:

"I do have the question from the jury and I do need the assistance of counsel as to how I am to respond. I must say my present view is, having decided that it would be inappropriate to have [Mrs T] recalled, that I should simply tell the jury that they must decide the case on the basis of the evidence and they shouldn't speculate as to what the evidence might have been if certain questions were asked of witnesses. On the other hand, in my final address I will tell them that they are entitled to draw inferences and in my final address I will discuss with them as to whether or not it would be appropriate for them to draw any inferences in this case from the absence of any questions on that matter from the prosecutor.

...

I think, having heard the debate further, and I certainly have an uncertainty in my mind, I think the only way to resolve it is not to permit any further evidence to be given and I will hear you at some stage as to what matters, what I should instruct the jury in my final address, but I think at this stage I will simply tell them they must act on the evidence that they hear and not speculate on any other evidence and I will refer to the matter further in my final address."

The jury was then brought back into the court and instructed as follows:

"Thank you for your patience, members of the jury. There was a matter I was discussing with counsel. I also need to deal with a matter that the jury raised before lunch. The jury asked a question which has been delivered to me and it reads, `We request that the mother confirms the incident in the shower and the excuse that followed from [Mr C].' [Mrs T] has completed her evidence. It is necessary for you to decide the case on the evidence that has been given and it is not appropriate for you to speculate on what evidence might have been given. I will, in my final address to you, indicate that in certain circumstances you might form or draw inferences from the evidence. As to whether or not you can draw any inferences from the matters which arise in relation to the question that you have asked is something that I will address you further on in my final address."

The jury had recognized that the mother of the complainant had not given evidence concerning the only incident in respect of which, if it had occurred, some corroboration might have been available. The observation of the applicant and her daughter naked in the bathroom, taken in conjunction with an extraordinary explanation by the applicant that he was, in effect, instructing the young girl on one aspect of human reproduction, would arguably be one likely to have impacted upon the witness and to have remained in her memory.

It must also be borne in mind that, in terms of the history of this matter, it was not long afterwards that the complainant made an allegation to her mother against the applicant and that, according to the complainant's mother, at one stage he suggested that he ensure that her daughter's first sexual experience was beautiful. An argument could certainly be advanced, in my opinion, that the observation of the complainant and the applicant in the bathroom would have been highly likely to assume significance in the mind of the witness at a relatively early stage, even if no suspicions had been raised initially.

With respect to all of the other claimed acts of sexual abuse, and discounting as I consider that it is reasonable to do, the likelihood that either of the younger children would have been able to provide any supporting evidence, the case against the applicant rested entirely upon the evidence of the complainant. In that situation, the absence of supporting evidence from her mother, a person said to have been an eye-witness to part of a disputed incident had to be addressed with some care. It was incumbent upon the trial judge to provide the jury with instructions of the kind foreshadowed by him.

When dealing with this aspect in his charge, his Honour instructed the jury:

"Count 12 was the incident in the shower. It is alleged to have occurred after [C] was born and after the move to the house at Hare Street, Morwell. The complainant gave evidence that she was having a shower. The accused came through the bathroom on the way to the toilet. Then the accused got into the shower and cornered her so that she was up against the wall. He had his hand between her legs. He told her not to call out. He pushed his finger inside her vagina. He rubbed her until she felt a tingling sensation. He asked her, `Did that feel good?' She got out of the bath. At that point the complainant said her mother came in to go to the toilet. She asked what was going on. The accused said he was explaining where semen comes from and where babies are produced from. I will just read the passage from the transcript: `Just as I was getting out I got - it was a shower in the bath. You had to step over the bath to get out and Mum came in to go to the toilet.' `Was anything said by anybody?' `Yeah, Mum said something. She just wanted to know what was going on. [G] said he was explaining where semen comes out from, where babies are produced from.' As with all the other counts, the accused said that no such incident occurred. Before you can find the accused guilty, you must be satisfied beyond reasonable doubt that the incident took place, or, as I said earlier, at least the essential elements - the placing by the accused of his finger in the complainant's vagina after he had cornered her in the shower. You will recall the question you wanted asked of [Mrs T] after she had completed her evidence. You wanted to know what she said about her daughter's evidence that she had come into the bathroom to go to the toilet and the complainant was getting out of the bath and had asked what was going on, and had received the curious answer from the accused. I did not allow the question to be put at that stage of the proceeding, and directed you that you must decide the case on the evidence given in court, and should not speculate as to what evidence might or might not have been given by [Mrs T] if she could have been asked about the matter. Earlier in my address I said that the jury can subject the evidence to any proper process of reasoning, including the drawing of inferences from facts established by the evidence. What is the situation you have here? The prosecutor called [Mrs T] to give evidence. He asked her questions about a number of matters, but did not ask her whether she recollected an incident in the bathroom at Hare Street. Mr Alger has suggested you draw the inference that [Mrs T] had nothing useful to say about that issue. It is a matter for you whether you draw any inference at all, and if you do, what inference you draw. In the long run you may think - and this is simply a comment of mine rather than a direction of law - that it is better to rely on the evidence called and which you heard, than to attempt any speculation about evidence which has not been called. The essential issue with Count 12 is whether such an incident as described by the complainant took place. You must be satisfied of that fact before the accused can be found guilty."

Counsel for the applicant objected to this form of instruction describing it as more or less neutral in circumstances where the jury should have been provided with an instruction in accordance with the well-recognized principle set out by the High Court in the case of Jones v. Dunkel[1]. After discussion, his Honour declined to redirect the jury on the point.

Before this Court, it has been contended that he should have directed them that the failure of the complainant's mother to give any evidence on this matter could be used by them when assessing the likelihood that the complainant was truthful and accurate in her evidence, not only with respect to the occurrence of the specific incident but also the commission by the applicant of the other offences alleged against him. The absence of such evidence was also relevant, the argument proceeded, in the consideration by the jury of the truthfulness or otherwise of the applicant's denials and evidence.

There appears to have been little consideration in the authorities of the applicability of the Jones v. Dunkel principle in situations where a witness is called and fails to give evidence in chief concerning a matter that it would be reasonable to anticipate was within the witness's personal knowledge. It was said in Commercial Union Assurance Company of Australia Ltd. v. Ferrcom Pty. Ltd. & Anor[2] by Handley, J.A. that:

"There appears to be no Australian authority which extends the principles of Jones v. Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic indicates `as the most natural inference that the party fears to do so.' This fear is then `some evidence' that such examination in chief `would have exposed facts unfavourable to the party.'"

In my opinion, this view is clearly correct. Ordinarily a party calling a witness can be expected to know what it is that the witness is likely or able to say and to adduce relevant evidence from the witness. If nothing is asked about a particular topic concerning which the witness might be expected to have knowledge, then the inference may be open that either the witness was unable to provide evidence on that topic or that any evidence that the witness might have been able to give would not have advanced the case of the party concerned. There is no reason why the principle should be confined to situations in which a witness is simply not called at all, nor is it an adequate response to state that a cross-examining party is able to address the situation. Certainly, in a criminal trial, an accused could hardly be expected or be required to raise, in cross-examination and possibly at his or her peril, matters about which it was reasonable to anticipate that any evidence likely to advance the prosecution case would have been adduced from the witness when giving evidence in chief.

It is apparent that, by reason of the difference in character of a criminal trial[3] and a civil proceeding and the different roles and obligations which are imposed upon the prosecution and defence in the former when compared with the parties in the latter, the area of operation and incidence of the Jones v. Dunkel principle will also differ according to the nature of the proceedings involved.

In the present case, the complainant's mother had made no reference to the alleged incident in her statement to the police. The absence of any support from her for the complainant's version had been noted by the judge who conducted the pre-trial directions hearing and there can be no doubt that the prosecution was well aware of this gap from the outset of the proceeding. No attempt was made to ascertain, however, what evidence she might have been able to give and, naturally, the prosecution did not raise the matter with her for the first time in evidence in chief. This was not a situation attended by any of the considerations arising from the character of the proceedings to which I have briefly adverted, but a straightforward one in which reasonably anticipated support for a truthful version was not produced nor was any explanation forthcoming in respect of its absence.

I consider that, approached from the perspective of the assessment of the reliability of the evidence of the complainant which provided both the foundation and the superstructure of the prosecution case, the absence of support for her version, in circumstances where it was arguably reasonable to anticipate that it would have been forthcoming if that version was correct, could have been regarded by the jury as significant. They would have been entitled to reason that the failure of the prosecution to adduce evidence from the complainant's mother on this matter reflected an acknowledgment that her evidence would not have advanced their case.

Considered from the perspective of the credibility to be attributed to the evidence of the applicant, the prosecution had failed, without explanation, to adduce evidence which, it was arguable, would probably have been available to refute his denial of the happening of any such incidents at all, if he was not telling the truth. The judge should have provided an instruction to the jury to that effect, indicating that they were entitled to draw the inference that there was no such evidence available to the prosecution. This may well have been regarded by them as possessing considerable importance, bearing in mind the onus and standard of proof in a criminal trial.

Employing the term adopted by the counsel who appeared on behalf of the applicant at the trial, the instruction provided by the judge was "neutral". Rather than providing the jury with assistance in their determination of the possible relevance of the absence of what they referred to as confirmation by the complainant's mother of part of the bathroom incident, they were, in effect, told that they should not regard this absence as significant. Although his Honour did advert to the possibility that the jury might draw inferences, when dealing with this aspect in his charge, he did not indicate otherwise than by a reference to the address of the defence counsel, what inferences were, as a matter of law, available to them in that situation.

It must also be remembered that the case was one which, by reason of the long period of time that had elapsed between the alleged conduct and the laying of charges against the applicant, required the trial judge to instruct the jury in accordance with the principles enunciated in R. v. Longman[4]. His Honour addressed this aspect, indicating that it was "not an uncommon situation" in cases involving alleged sexual acts that there was no evidence from an independent source to support that of the complainant. He then provided the jury with an instruction in the now well-recognized form. That instruction, which would have been quite satisfactory in a case in which no supporting evidence was available must be regarded as inadequate, in my opinion, in a situation where inferences of the Jones v. Dunkel kind could have been drawn by the jury. The obligation upon the trial judge to instruct the jury properly on the nature of the inferences which were open to them in the circumstances assumed even greater significance in such a case if the risk of a miscarriage of justice was to be avoided.[5]

Finally, it must be borne in mind that counsel for the applicant in the trial possessed a reasonable expectation based on the trial judge's statements that a favourable direction would be given by his Honour in relation to the absence of evidence from Mrs T. In consequence, he pursued neither his request for her recall for further cross-examination nor the possibility that the witness give evidence on the voir dire. The failure to provide adequate instruction in this situation added an element of unfairness to the trial in my view.

The absence of an appropriate instruction in the circumstances and the effect of the instruction actually given could, in my opinion, have adversely impacted upon the position of the applicant in the course of the jury deliberations and denied to him the reasonable possibility of an acquittal.

I consider that this ground should be upheld.

This ground which raises the issue of the adequacy of the trial judge's instructions with respect to the absence of corroboration of the complainant's evidence lacks substance and must fail, in my opinion. His Honour in his charge said:

"In a moment, I will briefly summarise the evidence in relation to each of the complaints. The only evidence of these matters is the evidence of the complainant .... There is supporting evidence on a number of peripheral matters from the complainant's mother and indeed, by the accused. For example, that the family stayed at the accused mother's house in Bendigo from time to time and that [Mrs T] and the accused's mother occasionally went out to Bingo together at night and left the children in the care of the accused. However, this peripheral evidence, whilst it might be important in helping you to assess the complainant's evidence, or the evidence of the other witnesses, is not evidence of the sexual acts complained of. As for the incidents themselves the only evidence is that of the complainant. The accused is emphatic in his denial of the incidents, he denies that there was any improper conduct between himself and the complainant." (Emphasis added)

Then, addressing the separate counts, he stated

"As I mentioned, the primary issue is whether any incident occurred at all. You would need to accept the complainant's evidence before you could find the accused guilty of these counts."

His Honour made it clear that in order to find the accused guilty that the jury had to accept the evidence of the complainant. He said, for example, with respect to count 6:

"The essential dispute is whether the incident happened at all. To convict the accused of this offence you must accept the complainant's evidence."

"To find the accused guilty of these offences you would need to accept the evidence of the complainant in relation to these incidents."

As the passage earlier demonstrates his Honour made it clear to the jury that the evidence upon which they were being invited to find the accused guilty was provided solely by the complainant.

Shortly prior to the retirement of the jury, his Honour provided the following instruction:

"In cases of this nature, involving alleged sexual acts, it is not an uncommon situation that there is no evidence from an independent source to support the complainant's evidence but it is necessary in the circumstances of this case for me to give you a further direction of law. You have observed [the complainant] give her evidence and be cross-examined, you have heard the comments made by the prosecutor and the criticisms of defence counsel about her evidence. I direct you as a matter of law that you must scrutinise her evidence with great care. You must consider the circumstances of the delay in making a formal complaint to police as that matter will be relevant to your evaluation of her evidence. Unless you are satisfied of the truth and accuracy of the complainant's evidence after making that examination and evaluation it would be dangerous to convict the accused on the evidence of the complainant alone. You should only convict the accused if you are satisfied of the truth and accuracy of [the complainant's] evidence and in assessing her evidence, you must have regard to the warnings I have given you. So long as you follow my direction, the evaluation you make of the complainant's evidence and the conclusion you reach as to the accused's guilt or innocence will be a matter for you."

The jury would undoubtedly have appreciated there was no corroboration of the complainant's evidence. Indeed, the question that they asked in relation to the evidence of the complainant's mother suggests that they would have been appreciative of that situation long before his Honour delivered his charge. This was not a case in which a question arose as to whether any of the evidence before the jury was capable of constituting corroboration of that of the complainant or in which a direction with respect to evidence that might possibly have been improperly so used by a jury can be seen to have been required. It would have been patently clear to all concerned that the case against the applicant rested entirely upon the unsupported evidence of the complainant.

It is not necessary, in my view, to address separately each of the matters set out in this ground. All of them were considered in the trial and each was the subject of attention by the trial judge in his charge to the jury. Ultimately, the conviction of the applicant depended upon the view that the jury took of the evidence of the complainant bearing in mind all of the various criticisms which were made of that evidence in the course of the trial including each of the considerations set out in ground 4. After a review of the evidence given in the trial I do not consider that, the verdicts of the jury could be regarded as inherently unsafe or unsatisfactory in the circumstances.

Consequently I propose that each of the verdicts of guilty be set aside and a re-trial ordered

[2] (1991) 22 N.S.W.L.R. 389 at 418; affirmed, without reference to this point, as Ferrcom Pty. Ltd. v. Commercial Union Assurance Company of Australia Ltd. [1993] HCA 5; (1993) 176 CLR 332.

[3] See as to the application of the principle in Jones v. Dunkel in criminal cases, the judgment of Batt, J in Wright v Morton (1996) 87 A.Crim.R. 468 at 485, reversed on other grounds in [1998] 3 VR 316; and R v Cengiz [1998] 3 V.R. 720 at 729, per Charles, JA.

[5] See R v. Miletic [1997] 1 V.R. 593 at 605 per Winneke, P, Charles and Callaway, JJA.

Criminal Law - Conviction - Sexual offences - Directions to the jury - Failure to adduce supporting evidence from a witness - Delay between alleged conduct and the laying of charges - Absence of corroboration - Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298 - Commercial Union Assurance Company of Australia Ltd. v. Ferrcom Pty. Ltd. & Anor (1991) 22 N.S.W.L.R. 389 - R. v. Longman [1989] HCA 60; (1989) 168 C.L.R. 79.

At a glance

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Judgment (104 paragraphs)

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Cases Cited (2)