R v G V V [2008] VSCA 170

6 On 8 June 2007, a plea in mitigation was heard and on 22 June 2007, the trial judge sentenced the applicant as follows:

... two months of Counts 1, 2, 5, 7 and 8, together with six months of Counts 4 and one year of Count 3 to be served cumulatively on Count 6, a total effective sentence of 64 months' imprisonment. I fix a minimum of 37 months before you are eligible for parole.

8 The orders for cumulation and statement of the total effective sentence reveal an error on the face of the record since the applicant was acquitted on Count 8. In view of the manner in which the appeal against conviction has been disposed of, it is unnecessary to deal with that other than to say that the error had vitiated the sentence and would have re-opened the sentencing discretion.

9 The application for leave to appeal against conviction was conducted on two principal grounds. Ground 2 was in the following terms:

The learned trial judge erred in his directions to the jury concerning:

(a) the evidence of the 'Pretext conversation' (that is, the recorded telephone conversation between the Complainant and the Applicant which was conducted on 19 May, 2004: Exhibit A1);

(b) the evidence of a sexual relationship between the Complainant and the Applicant; and

(c) the evidence of the sexual acts between the Applicant and the Complainant which were not the subject of any count on the Presentment -

In that the learned trial judge failed to give to the jury a propensity warning.

PARTICULARS OF PROPENSITY WARNING

(i) The learned trial judge failed to direct the jury that if the jury accepted any of the evidence referred to within this Ground, then they must not engage in propensity reasoning.

(ii) The learned trial judge failed to direct the jury that they must not reason that, because the Applicant had engaged in sexual conduct with the Complainant on one or more earlier or other occasions, then he was the kind of person who was likely to have done so on the occasion charged.

10 In addition to those grounds, on 20 April 2008 an application was filed to add ground 3 which is in the following terms:

The learned trial judge erred in his directions on the forensic disadvantage flowing to the applicant from delay in complaint; and in particular he erred:

(a) in directing in a manner that was calculated to dilute such directions as were given by referring to the possibility that timely complaint may have resulted in the confirmation of the complainant's version;

(b) in failing sufficiently to warn the jury as to the forensic disadvantage suffered by the applicant by reason of the delay in the making of the complaint;

(c) in failing adequately or at all to relate such directions as were given on forensic disadvantage to the applicant to the warning that it is dangerous to convict on the uncorroborated evidence of the complainant.

11 Application for a grant of leave to add that ground was formally made before us, not opposed by the Crown and then granted.

12 The offences all concerned the one complainant (conveniently, 'C') being the daughter of the applicant's wife. She was 8 years of age at the time the alleged offending commenced (before the applicant married the complainant's mother), and was 12 years of age when it ended (after they married). The offences were committed between 11 September 1995 and 31 December 2000, while the applicant was aged between 41 and 46 years. The complainant was 20 years of age at the time she gave evidence at the applicant's trial in 2007.

13 The evidence revealed that the complainant's mother and the applicant began living together in 1992 when the complainant was aged 6 years. The complainant's evidence, which was not corroborated, was that when she was aged 9 years or thereabouts, an incident occurred in her mother's bedroom one night while her mother was out of the room. The complainant was present in the room and the applicant, who was still in the bed, was alleged to have placed the complainant's hand on his penis. She withdrew her hand and her mother returned to the room. That was the substance of Count 1.

14 Count 2 was based on the allegation by the complainant that on one occasion when she was about 8 or 9 years of age, she went to a shed on the property and whilst there the applicant kissed her on the mouth placing his tongue in her mouth. On the same occasion he was alleged to have touched her breast and vagina with his fingers. That was the substance of Count 3. Count 4 was based on an allegation that the applicant had licked the complainant's vagina and Count 5 alleged he placed her hand on his penis and moved it up and down until the applicant ejaculated.

15 The complainant said that at the age of 12 years when she was feeding a pet ferret in another shed, the applicant kissed her passionately and placed his hands down her pants again touching and penetrating her vagina. These incidents were basis of Counts 6 and 7.

16 Count 8 was an allegation by the complainant that on one occasion the applicant picked up the complainant from school in a vehicle accompanied by a friend of his. After dropping the friend off, the applicant is alleged to have parked the vehicle on the side of the road and touched her in the area of her vagina. She was not sure whether that was over or underneath her clothing, although her evidence suggested it was underneath the clothing.

17 These complaints were reported to the police and on 18 May 2004 the complainant and her mother attended the Lilydale police station. It was arranged by the police that the complainant would make contact with the applicant for the purpose of inducing admissions from him about the sexual assaults she alleged he had committed on her and that, unknown to the applicant, the conversation would be recorded. That occurred on 18 May 2004. A sound recording of the conversation and transcript was produced to the jury during the applicant's trial. The conversation was referred to during the trial and during the application before us as the 'pretext conversation'.

18 During that conversation, the complainant asked the applicant for an explanation as to why he 'did it' given that she was 'under age'. The applicant's response was equivocal but the complainant persisted and the applicant reassured her that he was speaking to various members of the family to try to resolve tensions which had arisen. Toward the end of the conversation there was this exchange:

Complainant: (In part) ... I was under age and I can't get over it because you won't admit that it happened. Everyone else thinks I am lying.

Applicant: Yeah, but C, I've said to you that things happened.

Complainant: So, it did happen.

Applicant: I have said that.

Complainant: Why do you have trouble admitting that it happened.

Applicant: I don't, I said that to you straight away.

Applicant: Can you remember what happened, C? Can you remember asking me about all that? Can you remember saying, 'Oh [appellant], I want you to do that'?

Complainant: No. All I can remember is you touching me and stuff and - and I just thing that - but even then, even if I said, 'Okay, come and fuck me,' you still shouldn't have. I was still a child. I was still ...

Applicant: C, I mean, I don't even know whether you remember what happened. I mean, when - like, you were asking me to do - to touch you. That what you were asking of me.

Complainant: I wasn't asking you to touch me. [Applicant], I was a, like - a child.

20 Significantly, this conversation did not contain any statement or admission by the applicant that corroborated the particular allegations which were the basis of any of the counts on the presentment.

21 On 15 August 2004, police conducted a record of interview with the applicant. In answers to questions, the applicant denied touching the complainant inappropriately at all. Specific allegations were put to him from the complainant's statement, all of which he denied. He was asked about the conversation on 19 May 2004. He agreed the conversation took place and told police he had written notes of it. He said there were words missing and the line was poor or 'scratchy' and, indeed, he did complain that the line was bad during the conversation. Specific quotes from the conversation were put to the applicant and he denied many of them, not realising there was a tape recording. In particular the passages I have quoted above were put to him and he said those things were not said during the conversation and it would be 'totally untrue' to suggest they were.

22 In presenting his submissions in this Court, senior counsel for the applicant began with ground 3 which concerns the issue of a Longman warning. As appears below, in my opinion that ground would resolve the appeal in the applicant's favour and lead to the new trial which we have ordered. However, as the President noted at the commencement of the applicant's submissions before us, ground 2, which concerns the absence of a required propensity warning, raises what he described as a common problem.[1] At the Court's request the ground was fully argued and it is therefore appropriate to identify detailed reasons for my conclusion about it.

23 The applicant's submissions on this issue have a degree of complexity about them because they are referable to a number of separate aspects of the evidence. Broadly, the applicant submits that the trial judge erred in his directions to the jury by failing to give a propensity warning with respect to the evidence of the pretext conversation, the evidence of a sexual relationship between the applicant and the complainant, and the evidence of uncharged sexual acts between the applicant and the complainant.

24 The foundation of the applicant's submission is in R v Grech,[2] where, dealing with the warning to be given to a jury where evidence of extraneous sexual conduct was admitted before a jury in a case similar to this, Callaway JA said:

In my opinion the jury should have been told that:

(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it -

(i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and

(ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

The foregoing summary is not intended as a model direction but as a guide to the substance of what was required in this case.[3]

25 The applicant complains that the propensity warning was not given in this case as set out in paragraph (b)(ii) of the quoted passage. In R v DCC,[4] Callaway JA identified the four circumstances in which the question of a propensity warning may arise. In summary they are, first, when evidence of uncharged acts may be admitted as relationship evidence. In that context, his Honour then referred to the passage quoted above from Grech. Second, the issue of a propensity warning may arise where there are multiple counts on one presentment but only one complainant, as in this case. The third and fourth situations are a variation of the first two and arise where there is more than one complainant.

26 The applicant's complaint about the inadequacy of the directions and the clear failure to give a propensity warning, as identified in Grech and explained in DCC, has two elements. First, the applicant submits that the pretext conversation, coupled with denials by the applicant in his record of interview that he made certain statements in the pretext conversation, was used to ask the jury to infer that a sexual relationship had existed between the applicant and the complainant. Thus, it was submitted that the three matters identified in Grech needed to have been put to the jury by way of propensity warning in the trial judge's direction.

27 The trial judge directed the jury as follows. First, after opening addresses had been completed he said:

I say this to you, members of the jury, you can use that evidence or those submissions as evidence of relationship that existed between the victim and the accused, the Crown say which makes it more likely that there was a sexual passion existed between, or the accused had a sexual passion for the victim and therefore you can use that in your summing up of the evidence as to whether the exact narrative occurred in relation to each count.

But the pretext tape, the conversations in it can't be used as proof of the count because they don't relate to a count, I just talk about the relationship generally. You've got to be very careful about that because somebody might have had a sexual relationship, or a sexual fascination, or interest in another person, it doesn't necessarily mean of course that the actual count, that Count 1, Count 2, Count 3 or Count 4 occurred. You can have those sort of sexual passions regardless of whether the count occurred. What the Crown have to prove is the actual count, Count 1, Count 2, Count 3 not something else, not that the accused exercised a general sexual passion towards the prosecutrix, the victim, so bear that in mind.

Members of the jury if you are satisfied beyond reasonable doubt that the accused did admit taking part in a sexual relationship and that his lies were brought about by a consciousness of guilt, of trying to hide that fact, again you have got to exercise considerable caution and understand that it was a sexual relationship - the pretext conversation that help you prove, or help the Crown prove, a sexual relationship. It does not take you to proof in itself of Counts 1 to 8. It is, as I say, background that you can then use to understand the relationship between the accused and C, and help you put some aspects of C's evidence in proper context.

But you have got to be very careful as to the limited use you can make of that evidence of relationship. The other aspect of evidence of relationship of course comes from C, who talks about that, she says, on eight occasions she was sexually interfered with by the accused. Of course that is also part of the evidence of the relationship between the accused and C. But I will come back to that again and give you detailed directions as to how you should approach that aspect of the case.

29 Then finally, in a lengthy passage which I will now summarise, the judge said that the complainant had given evidence of the sexual relationship that had occurred and that, if the jury concluded there was such a relationship, they needed to understand the limited purpose for which that evidence could be used and the reason why the evidence was given. First, it was said, the relationship evidence bears on the probability of the offences having been committed. The evidence allows the jury to understand the proper context and helps to understand why the complainant did not break away as she might have had the incident been isolated. The judge also explained that, even if the jury were satisfied of an improper sexual familiarity that arises by inference from the pretext tape and the denials in the record of interview, that evidence does not relate to any identifiable transactions. It would be wrong to say that because there was a sexual relationship that is determinative of the guilt of the applicant on each or any count on the presentment. It would be wrong, the judge directed, for the jury to substitute the general acceptance of a non-specific sexual relationship for a specific activity alleged on the presentment.

30 It is clear beyond argument, as the applicant submitted, that the third element of the Grech direction - the propensity warning - was not specifically included in these directions. Counsel for the Director submitted that, whilst the trial judge's direction did not accord precisely with the preferred wording identified in Grech, it was nonetheless a '... sufficient direction to warn the jury as to the impermissible line of reasoning to which such a direction is aimed.' Thus, the question arises whether, consistent with the observations of Eames JA in DCC,[5] it is nonetheless correct to say that the language was capable of being understood as a warning against propensity reasoning despite not using the phrase that the applicant was 'the kind of person' who would commit another count.

31 In my opinion the words used by the trial judge in DCC and referred to by Eames JA in that case have a far more specific tone to them than did the words of the trial judge in this case. In this case, the trial judge warned the jury against substitution - that is, against substituting a conclusion adverse to the applicant concerning the non-specific sexual relationship for a proper analysis of the evidence which either did or did not support the individual counts on the presentment.

32 The applicant submitted, correctly in my view, that notwithstanding the submissions of counsel for the Director there was effectively no propensity warning concerning uncharged acts. He refers in particular to the following passage from the trial judge's charge:

As I say C has given evidence of sexual relationship because she says that there was a sexual contact on eight occasions as set out on the counts on the presentment. My direction to you is this; it would be wrong for you to say we are satisfied that there was a sexual relationship and that is determinant of the guilt of the accused on each count, or any count on the presentment.

33 That direction, counsel submitted, only refers to the evidence of relationship that is an inevitable logical consequence of the fact that there were eight occasions of sexual contact all of which are at the basis of the counts on the presentment and therefore, in themselves, demonstrate a sexual relationship. In addition, the applicant referred to other areas of the evidence which disclosed other acts by the applicant of a similar and criminal nature but which were not the subject of charge and which were not the subject of such directions as his Honour did give. The sequence began when the complainant gave evidence in chief and said that the applicant had told her that '... we had a special relationship and that, you know, if we were older we'd be together ...'. That he was alleged to have said that to the complainant was put to the applicant in his record of interview.

34 Further, in the pretext conversation there were passages from which the jury would infer that there were other uncharged acts. They included statements by the complainant in that conversation with the applicant as follows:

Yeah, but I - I was still under age and you, pretty much you know, ... pretty much did sexually assault me ...

No. All I remember is you touching me and stuff and - and I just think that - but even then, even if I said 'Okay, come and fuck me,' you still shouldn't have. I was still a child.

C, I mean, I don't even know whether you remember what happened. I mean, when - like, you were asking me to do - to touch you. That's what you were asking me to do.

35 These passages were identified and put to the applicant in the record of interview and, again, when he gave evidence and was being cross-examined by the trial prosecutor. Finally, there were questions in the record of interview where, quoting from the complainant's statement, it was put to him that he had inserted his fingers into the vagina of the complainant between 15 and 20 times. It was also put that he had begun to abuse her when she was 8 years old and that occurred on an average of about twice per week. That was put as having ceased when she was 13 years of age.

36 The applicant's submission was that, in relation to these parts of the evidence, there needed to be a direction consistent with Grech and the above-quoted passage which explained to the jury why the evidence was admitted and how it could and could not be used. No such direction was given.

37 In the course of persuading us that this ground should succeed notwithstanding a failure by either counsel for the Crown or counsel for the accused at the trial to take exception to the trial judge's charge, senior counsel for the applicant referred to the judgement of this Court in R v Fotis.[6] Before dealing with the failure to take exception, Nettle JA conveniently identified the principles which apply to the propensity warning required to have been given in a case such as the present, as follows:

The need to give the jury directions as to the way in which they may and may not use the evidence of uncharged acts and other conduct is rudimentary. So is the need to give the jury a propensity direction in respect of uncharged acts and other similar conduct; especially where the charges are of sexual offences against children. The authorities are collected and synthesised in the judgment of Callaway, J.A. in R. v. TJB, as follows:

When evidence of uncharged acts is led in relationship cases, there are certain directions that should, almost invariably, be given to the jury. One of them is that the commission of the offences charged can be proved only by the evidence relating to those offences and not by evidence relating to the uncharged acts. Another is that the jury must not reason that, if the accused engaged in the uncharged acts, he is the kind of person who is likely to have committed the offences charged.[7]

38 The conclusion about this ground is compelled by the fact that the trial judge did not direct the jury, in any form, that they must not reason that because the applicant had engaged in sexual conduct with the complainant on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions then under consideration. Further, there was no propensity warning of any kind in relation to those aspects of the evidence to which I have referred above in paragraphs [33]-[35]. For these reasons this ground of appeal succeeds.

39 During the hearing of submissions on this appeal, the Court raised with counsel a problem which it appeared to us had arisen in connection with this ground, although it is appropriate to deal with it separately. The applicant had not raised this issue in either the grounds of appeal or the submissions in support of those grounds. It having been raised by the Court, the applicant was content to have it dealt with as part of this ground.

40 The issue also concerned uncharged acts and, in particular, such improper relationship as the applicant maintained with the complainant. When the applicant was interviewed by police on 15 August 2004, he was questioned about what was said during the so-called 'pretext conversation'. In that interview he denied that certain things which were clearly said had been said. The applicant gave sworn evidence during the trial and, in answer to questions from his counsel, said that he lied about what was said in that conversation because he had never been interviewed by police before and he was terrified. He said he just wanted to get out of the police station. His fear was not caused by any conduct of the police. He was cross-examined at some length about the conversation he had had with the complainant and tested as to why, if she was making assertions to him that were untrue, he did not deny them.

41 In his final directions to the jury, the trial judge gave what might be described as an Edwards direction in relation to consciousness of guilt,[8] not of the offence charged but of an improper relationship. In the course of that direction his Honour reviewed what had been said by the Crown prosecutor in his final address to the jury, which included the submission that the false denials were the 'product of a guilty mind'. His Honour then said (emphasis added):

The passages that the prosecution rely on of course make no mention of the facts out of which the counts on the presentment arise. They do not relate to any specific allegation that relates to a count on the presentment. If you find that the accused did lie and his lies disclose a consciousness of his guilt of that relationship the guilt can only be used by you as evidence of an inappropriate sexual relationship that the prosecution allege existed between C and the accused.

Secondly, you may infer that the accused entertained a consciousness of his guilt of an improper sexual relationship only if you are satisfied beyond reasonable doubt the six following matters.

Fourthly, that the lies were motivated by the accused's perception that the truth is inconsistent with innocence and therefore arises from his consciousness of guilt and engaging in an improper relationship.

42 The question, as posed by Ashley JA to counsel during the argument before us, was whether an Edwards direction could be apposite to something other than lies told in consciousness of guilt of the offence charged. In particular, the question was whether or not such a direction is consistent with legal principle. That is, can a person be conscious of their guilt of something other than the criminal conduct in respect of which they are charged? If such a direction is not consistent with legal principle, was the result of the direction a dangerous distraction for the jury in its task?

43 Senior counsel for the applicant accepted that the word 'guilty' can, of course, be used in a broad and non-legal sense as a matter of ordinary usage. However he submitted that, if there was a risk that the jury would construe the use of the words in the direction quoted as being directly referable to or relevant to determining guilt on the offences charged in the presentment, then there had been a miscarriage of justice. He submitted that lies cannot legitimately be used to establish a consciousness of guilt of something other than offences charged. Further he submitted that there may also be a problem created by what he described as 'circular reasoning'. In my opinion, that risk arose when the trial judge said to the jury (emphasis added):

Fourthly, that the lies were motivated by the accused's perception that the truth is inconsistent with innocence and therefore arises from his consciousness of guilt and engaging in an improper relationship.

44 That passage appears to relate the lies to a consciousness of guilt of the offence, as well as the improper relationship, despite the fact that those lies have no specific connection to the particular facts at the basis of the counts in the presentment.

45 Counsel for the Director submitted that, for the purpose of explaining to the jury how such lies might be used, an 'Edwards-type' direction might have been appropriate but if it was to be done, he accepted that such a direction had to be in clear terms and in no way capable of being misconstrued as being a consciousness of guilt on the charged counts. Looked at overall, he submitted the entirety of the trial judge's direction did not lead to the conclusion there was a risk of the jury inferring that a consciousness of guilt of the improper relationship was itself evidence of guilt of the offences charged. As appears hereafter, with respect, I disagree.

46 To deal with this issue it is necessary to state, in summary, the way in which lies told by an accused person can be used when the Crown seeks to rely on them as an implied admission of guilt. In Edwards v R the High Court noted that '[o]rdinarily, the telling of a lie will merely affect the credit of the witness who tells it'.[9] I note that, if the applicant had lied about the pretext conversation in his record of interview, that was something upon which the Crown could have relied as affecting his credit. The fact of the lie and its effect could have been the subject of a direction in accordance with Zoneff v R.[10] The Court continued:

A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' or as corroborative evidence.

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'.[11]

47 Thus, a lie may be used by the jury as conduct inconsistent with innocence and which amounts to an implied admission of guilt when the lie relates to a material issue and is explicable on the basis that the truth would implicate the accused in the offence charged. That portion of the judgment in Edwards v R was also referred to by the Court of Appeal in R v Akkus,[12] identifying that an appropriate direction must be given where there is a realistic risk that a jury may reason to guilt on the basis that the accused told a lie.

48 The issue was considered by this Court in R v Ciantar.[13] Ciantar was a culpable driving case and one of the applicant's grounds of appeal against conviction was the direction of the trial judge on the issue of flight. It was argued that the judge did not make clear that evidence of flight could only be used as evidence of consciousness of guilt if the jury were satisfied that it sprang from a realisation of guilt of the crime charged, namely, culpable driving, as opposed to a realisation of having been engaged in some lesser unlawful activity.

In our view the argument cannot be sustained. For even allowing that a possible explanation of the applicant's post-offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed 'the offence charged'.[14]

50 The Court held that, to the extent that the earlier judgment of the Court in R v Heyes[15] implied a contrary view, it should not be followed. The Court also noted that lies and post-offence conduct are a species of circumstantial evidence. An inference of guilt may be drawn from the 'concatenation of circumstances' including the post-offence conduct. In particular, and by reference to the judgment of the High Court in Edwards v R, the Court of Appeal observed:

Whether a statement proved to be false is capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon 'the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case'.[16]

51 In my opinion the relevant parts of the trial judge's direction (paragraph [41] above) were misplaced. The direction extends the principles developed in Edwards for a purpose for which they were not intended. His Honour's terminology included regular use of the word 'guilt', which made it very difficult for a jury to understand the distinction between consciousness of guilt in relation to the offence charged on the one hand and consciousness of guilt in relation to the improper relationship on the other. In any event, there is no third category so far as lies are concerned. Lies are either relevant to the credit of an account given by an accused or they are an implied admission of guilt in relation to conduct which is the subject of criminal charge. If they are the latter, then they are to be applied in the way this Court described in Ciantar.

52 In my view, the trial judge's direction in this case was confusing on the important concept of guilt and what that means in a criminal trial. The direction was a dangerous diversion and ought not to have been given. There is a distinct risk that the jury reasoned to guilt based on the lie or lies told by the accused, being implied admissions about conduct other than that at the basis of the counts on the presentment. In those circumstances, there has been a miscarriage of justice.

53 The delay between when the offences were alleged to have been committed and the making of a complaint by the complainant meant that a warning was given to the jury in accordance with Longman v R,[17] and subsequent authorities. His Honour gave the jury a direction which the applicant submits was deficient because it contravened the principles most recently described in the judgment of this Court in R v Taylor (No. 2).[18]

54 It is appropriate to first identify the relevant portions of the judge's charge, the emphasis being mine:

The other matter that I should raise with you, members of the jury, is that these events occurred between 1995, November 1995, and 31 December 2000, and of course C was eight to 13 in the time that these events occurred, and I have already mentioned, indeed counsel's mentioned to you the problem of time and I make these remarks to you. You must remember that the passage of time, people when allegations are made, sometimes lose the means of defending themselves, had an allegation been made shortly after the event, it would have been possible to explore in detail the alleged circumstances surrounding the occurrence, and perhaps adduce evidence throwing doubts on the complainant's version, or indeed confirming the accused's denial, or confirming the complainant's version.

After a delay, that opportunity may have gone. For example, the sort of thing I am talking about, had the victim's mother been interviewed by the police the next day after Count 1, and said to her, 'Look, we want to ask you questions about what happened last Tuesday night, did C come into your room and say that there was a mouse under her bed, or something like that?' And, 'Did you leave the room, and did she stay in the bedroom with [the applicant], and did you go to bed after that, and did you notice anything unusual about her on that night?'

Well, depending on what answers you gave, you could have evidence of a witness whose memory was presumably fresh, who may have said, 'Yes, what C says is true,' or 'Nothing like that happened at all and I didn't notice anything untoward about her,' or 'She was a bit flighty and she went back to bed,' all those things might or might not have been given. You cannot speculate on what answers - what evidence might have been available, but you have got to appreciate that a passage of time has gone and the opportunity for C's mother to give that evidence in detail as to whether the offence occurred, or did not occur, or what have you, surrounding circumstances on that Tuesday night, it would have been Tuesday, I am assuming it was; will not help you. That evidence has gone.

Likewise, for example, [witness A] might have been interviewed and his memory might have been a little bit more precise in 1998 as to whether he got into blue Chevrolet truck or not, or whether he ever did go driving. He says no he cannot recall, never had an occasion to be in that car with the accused man or C. Therefore [the prosecutor] says you should accept his evidence and it throws doubt on C's reliability as a witness.

But on the other hand [witness A's] recollection is now some seven or nine years long and, of course, the accused has been denied in one sense the ability to have that evidence put before you in a very stark circumstances. If [witness A] had a fresh memory of those days, on the other hand, [defence counsel's] comment to [witness A] was - something about his memory. How good is your memory of that period of time, some seven or eight years ago.

As I say, members of the jury, the passage of time erodes people's memory. It dulls recollections, it allows sometimes people to put two or three events or circumstances together and form a narrative out of a variety of different occasions. It can play all sorts of havoc on our mind and sometimes it creates difficulties for the accused in bringing forward facts that might assist him in the presentation of his defence. They are matters that you should be acutely aware of when assessing the evidence of what happened.

55 The applicant submits that the trial judge's directions on this topic were deficient or erroneous in three respects. First, such directions as were given on the forensic disadvantage to the applicant by reason of delay were 'erroneously diluted or offset by references to the possibility that timely complaint may have resulted in confirmation of the complainant's version of events.' That submission is particularly based on the portions highlighted above. Second, the trial judge failed to make it clear to the jury that the forensic disadvantage created by the passage of time should only be referable to the defence, not to the prosecution, in the jury's deliberations. The directions in this respect 'became little more than an apologia for potential weaknesses in the prosecution case'. Third, the trial judge erred in failing adequately or at all to relate such directions on forensic disadvantage to the warning that it is dangerous to convict on the uncorroborated evidence of the complainant.

56 Counsel for the Director of Public Prosecutions accepts that in this case a direction or warning was required in relation to the delay between the alleged offending and complaint. However, it was submitted that a full Longman warning was not mandatory. While the trial judge's directions were not in the specific terms of a full Longman warning, the directions given were 'sufficient to bring home to the jury the consequences of that delay', and were sufficient to ensure that the applicant received a fair trial. Further, the references to police investigation in his Honour's directions did not diminish the strength of the warning. When the entirety of the charge is considered, 'it is clear that the jury would have understood the danger of convicting the applicant on the uncorroborated evidence of the complainant, and of the need to subject that evidence to careful scrutiny doing so, in light of the delay and its consequences on witnesses and on the applicant.'

57 In R v Taylor (No. 2), Kellam JA concluded that, while there is no set formula for a Longman warning:

Nevertheless where such a warning is necessary, the jury must be given the appropriate direction in unmistakable terms and with the authority of the judge's office. Furthermore, and as stated by Ormiston J in R v Mazzolini:

... where a full Longman warning is required the preferable course is to direct the jury in substance that it would be dangerous or unsafe to convict unless, having scrutinised the relevant evidence with great care, they were satisfied of its truth or accuracy. The words 'danger' or 'dangerous' (or even 'unsafe') seem to give to a warning the sense of urgency and emphasis it requires, and so has been used for many years and still is used where a précis is given of the required effect.

Furthermore, the warning must refer to the circumstances which arise in the particular case and which require the warning to be given, and the judge is obliged to warn the jury of the dangers that have been caused by the identified circumstances. In this case the danger in question was the forensic disadvantage which the applicant suffered arising from substantial delay in complaint being made about his alleged criminal conduct.[19]

58 Kellam JA cited the following passage from the judgment of Gaudron and Callinan JJ in Doggett v R:

... the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.[20]

59 Kellam JA also cited the judgment of Gaudron, Gummow and Callinan JJ in Crampton v R:

In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakeable and firm voice must be given by appropriate directions.[21]

60 In R v Taylor (No. 2), the trial judge had commenced her directions in relation to the forensic disadvantage suffered by the accused by pointing out that one 'specific aspect of the delay is that the police have lost the ability to fully investigate the events and the ability to search for, for instance physical evidence or locate witnesses who may have been relevant, who may have had fresh memory at the time of these events.' The trial judge then referred to the fact that the accused had 'lost the chance to establish facts and circumstances which may have helped him adequately test the complainant's allegations', and stated that the loss of that opportunity was of particular significance in that case. The applicant submitted before the Court of Appeal that the trial judge did not make it clear that the purpose of the warning was to warn the jury of the forensic disadvantage suffered by the applicant.

61 In addressing this submission, Kellam JA referred to what Buchanan JA said in R v MWL about a similar direction:

His Honour first instructed the jury that the delay similarly handicapped the police in investigating the complaints. I doubt that the jury would have interpreted that statement as one directed to efforts by the police to critically examine the complaints rather than gather further evidence supporting the complainants. In my view, the explanation of the difficulties imposed upon the defence by delay was significantly diluted by a statement which the jury may well have construed as excusing any deficiencies in the Crown case.[22]

Kellam JA concluded that, while the trial judge's charge contained many if not all of the necessary components of an appropriate Longman warning, 'it was deprived of any great force by the introduction into the directions of the irrelevant matter of the lost opportunity of police to investigate.' Further, he stated, '[w]hat had to be made clear to the jury was the fact that it was because of the delay and the consequent disadvantage to the accused that such scrutiny was required.'[23] Finally, none of the specific forensic disadvantages to the applicant in that case were the subject of directions.

In my view, and looked at as a whole, the directions given by the judge were far too equivocal to satisfy the requirement that the jury be given a warning, in an 'unmistakable and firm voice' and which carried the imprimatur of the judge, of the danger of convicting the applicant in the particular circumstances of the case. The judge introduced her direction about the forensic disadvantage suffered by the applicant by reference to the loss of ability of the police to investigate fully the events in question. The necessity for the warning is that by reason of the long delay the fairness of the trial was necessarily impaired. By reason of that long delay the applicant had been denied the 'forensic weapons that reasonable contemporaneity provide'. It is this disadvantage suffered by an accused which 'a judge must recognise and to which an unmistakable and firm voice must be given in appropriate directions'.

The irrelevant reference to problems faced by police did not make those matters clear to the jury and indeed as is submitted on behalf of the applicant, may well have been interpreted by the jury as explaining and excusing any deficiencies in the Crown case. Furthermore, and although the judge did direct the jury in conventional terms that it would be dangerous to convict on the evidence 'of a complainant alone' unless the evidence had been scrutinized with great care, her Honour immediately thereafter stated that as a matter of law it was not necessary that there 'be separate and independent evidence' and furthermore that 'in matters of a sexual nature, it is not uncommon that the complainant is the only witness'. In my view those remarks diluted the strength of the warning to the jury and detracted from the primacy of the warning which was compelled by the unusual circumstances which put the accused at a disadvantage at trial. The remarks detracted from the strength of the warning because the very point of such warning is to bring home to the jury the danger of convicting an accused person on the uncorroborated testimony of the complainant in circumstances such as those before the jury.

With great respect to the trial judge it appears to me that her Honour's directions had the effect of providing a balance between the interests of the prosecution and the interests of the applicant. The directions did not state clearly that the necessity for the warning arose because after many years delay the evidence of the complainant could not be tested adequately and therefore the fairness of the trial was necessarily impaired.[24]

63 In R v Taylor (No. 2), the relevant offences had occurred between 14 and 16 years before the accused was charged, and between 19 and 21 years before the trial took place. Similarly in Longman, the complainant had come forward some 20 years after the alleged offences were committed. There was no independent evidence to corroborate the complainant's allegations. Brennan, Dawson and Toohey JJ held:

... there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. 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, scrutinizing 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. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.[25]

... there is a real risk that, in the absence of any specific warning about the need to scrutinize the complainant's evidence with great care and caution before convicting the applicant on the basis of it alone, the jury may have seen the case merely in terms of whether they were satisfied beyond reasonable doubt that the complainant was a truthful witness and that the applicant was not and thereby failed to give proper consideration to the question whether, notwithstanding that the complainant was a truthful witness in the sense that she believed what she said, her evidence provided an inadequate foundation for a finding that the applicant's guilt of the two alleged offences had been proved beyond reasonable doubt.[26]

65 In this case, six to nine years had passed between the time of the alleged offences and the time of trial. As I have indicated, there is no question but that a warning of the kind identified in Longman was called for and the trial judge obviously accepted the need for it. In my opinion, the judgment of this Court in R v Taylor (No. 2) makes it clear that such a warning must be unequivocally favourable to the accused. This is not an occasion for balance between the parties. Whilst the judgment of the Court in that case was delivered on 23 April 2008, it confirmed existing principle. Each of Longman,[27] Doggett,[28] and Crampton[29] demonstrate the need for the warning to be exclusively concerned with the forensic disadvantage to the accused.

66 Counsel for the Director submits, however, that the minimum requirements were met by the judge's charge in this case. Understandably, he relies in particular on the observations of Winneke P in R v EO,[30] where his Honour said:

It must be observed that the nature of any warning which is to be given to a jury in any particular case is very much a matter for the trial judge who is familiar with the atmosphere of the trial, and who has the primary responsibility for ensuring that the trial is fair.[31]

The issue in that case was whether the trial judge had been correct in deciding to tailor the warning that he gave to the particular facts of the trial. The point was made by both Winneke P and Coldrey AJA that those facts were quite different from that which occurred in Longman. They were also different from the facts which prevailed in the present case. In EO, the delay between the end of the offending and the making of a complaint had been of the order of one year. Most of the events which were at the basis of the counts in the presentment had occurred within three or four years of the matter being reported. Coldrey AJA referred with approval to the exercise of '... striking a balance between the remote and recent offences'.[32] Those considerations determined the outcome of that application. Both Winneke P and Coldrey AJA appeared to approve a form of wording of the warning that included reference to the '... difficulties to both prosecution and defence occasioned by the delay'.[33] However, in my opinion those observations were incidental to the issue on which the application was determined and R v MWL appears not have been cited.

67 Counsel for the Director also submitted that, looked at as a whole, the trial judge's directions to the jury would have resulted in them being left with the 'very strong sense' that they needed to subject the complainant's evidence to the strongest scrutiny, taking into account a number of factors which included the undermining of memory by the passage of time and the difficulties faced by the applicant in meeting the case as a result of the delay. However, the judgment of this Court in R v Taylor (No. 2) makes it clear that such a warning is required to be put to a jury with the forensic disadvantage of the accused highlighted in its own right, and not diluted by any reference to similar disadvantages which may have also afflicted the prosecution. Counsel for the Director urges that the complaint made about the trial judge's direction be examined in an overall context of what the jury was told. An examination of the passages I have earlier quoted, however, rather demonstrates that in the course of explaining the possible effect of delay, the disadvantages confronting the investigators were made pre-eminent or, at least, highlighted as having a parallel effect with the disadvantage to the accused.

68 In addition, counsel for the applicant complains that the particular difficulty raised by ground 3(c) rendered the directions by the trial judge in this case less compliant with principle than had occurred in R v Taylor (No. 2). In that case the trial judge had directed the jury in the following terms:

I have to also then give you the following directions of law, because of these particular aspects of the case, that is the long delay that has led to issues in regard to the evidence that can be called and the memories of witnesses. Because it has led to those potential problems with the evidence that can be called, you must be directed as follows. You need to be fully aware that as a matter of law it is regarded as dangerous to convict on the evidence of a complainant alone, unless after you have scrutinised the evidence with great care, considering all the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied of its truth and its accuracy on all the material facts. As you are well aware, the complainant is the only witness who can give you evidence of the actual events that happened. As a matter of law it is not necessary that there is separate independent evidence called in relation to the offences or the events. And of course, in matters of a sexual nature, it is not uncommon that the complainant is the only witness. But in any case where there is no other direct evidence to support a witness as to the events being committed, then you must be careful about the evidence, giving it complete and careful scrutiny for the potential for error.

The applicant in this case complains that the consequential warning quoted above was not given by the trial judge in this case in any form.

69 In my opinion, the warning given to the jury was deficient for the reasons expressed above and there has been a miscarriage of justice. Counsel for the applicant submitted that the proviso[34] is inapplicable and a new trial should be ordered.

70 The applicant referred us to R v VAS.[35] This Court held that the application of the proviso would be inappropriate, given it was a case in which the outcome was 'almost entirely dependent upon the credibility and reliability of the evidence of the two complainants'. The Court had not had the opportunity to see or hear them and was therefore unable to assess their evidence with any measure of confidence. In those circumstances, the Court considered that it could not be satisfied that no substantial miscarriage of justice actually occurred.[36]

71 In this case, for similar reasons, it was clear that there had to be a new trial.

[1] See, eg, R v BAH (No. 2) [2005] VSCA 197; R v MCG (No. 3) [2005] VSCA 262; R v Marcus Alan Taylor [2005] VSCA 53; R v VAS [2006] VSCA 159; (2006) 170 A Crim R 452.

[2] [1997] 2 VR 609.

[5] [2004] VSCA 230; [2004] 11 VR 129, 138-9.

[6] [2004] VSCA 212.

[8] See Edwards v R [1993] HCA 63; (1993) 178 CLR 193.

[10] (2000) 200 CLR 234.

[11] Edwards v R [1993] HCA 63; (1993) 178 CLR 193, 208.

[12] [2007] VSCA 287.

[13] [2006] VSCA 263; (2006) 16 VR 26.

[15] [2006] VSCA 86; (2006) 12 VR 401.

[16] [2006] VSCA 263; (2006) 16 VR 26, 40.

[17] [1989] HCA 60; (1989) 168 CLR 79 (hereinafter 'Longman').

[18] [2008] VSCA 57.

[19] [2008] VSCA 57, [17].

[22] [2002] VSCA 221; (2002) 137 A Crim R 282, 287.

[23] [2008] VSCA 57, [88]-[89].

[25] [1989] HCA 60; (1989) 168 CLR 79, 91.

[30] [2004] VSCA 41; [2004] 8 VR 154.

[33] Ibid 167 (Coldrey AJA), 156 (Winneke P).

[34] Crimes Act 1958 (Vic) s 568(1).

[35] [2006] VSCA 159; (2006) 170 A Crim R 452.

[36] Ibid 459. See also R v Rajakaruna (No. 2) [2006] VSCA 277; (2006) 15 VR 592, 594, 613.