R v Glennon [2001] VSCA 17

R v Glennon [2001] VSCA 17 - VSCA 2001 case summary — Zoe

[16]

As we have previously noted, the applicant pleaded not guilty, at the first trial, to a presentment which contained 29 counts alleging offences against 6 complainants. Counts 1-11, inclusive, alleged the commission of offences against a complainant whom we shall call "PMD". These offences were alleged to have been committed between January 1974 and January 1977 when PMD was aged between 10 and 13 years. Counts 1-4, 6, 7 and 9 alleged indecent assaults on a child under 16 years, counts 5 and 11 alleged attempted buggery of a child under 14 years, count 8 alleged an offence of buggery of a child under 14 years and count 10 alleged a count of gross indecency against a child under the age of 16. As previously noted, no verdicts were taken on counts 6 and 10, as they were alternatives to counts 5 and 9. The applicant was acquitted of counts 7 and 8. PMD, who was aged 36 at the time of trial, was living with his parents and 5 sisters in Moonee Ponds at the time when the alleged offences occurred. His parents were regular church goers, and attended St. Monica's Roman Catholic Church in Moonee Ponds where the applicant was the parish priest. PMD was, at the relevant time, a pupil at St. Monica's school, and was also receiving instructions from the applicant as an altar boy at the church. PMD, his sisters and parents, held the applicant in high esteem, particularly because of his involvement in youth affairs as scout leader, karate instructor and football coach. PMD's parents regularly invited the applicant to their home. The offences which were alleged to have been committed by the applicant against PMD were said to have occurred on five separate occasions. Those alleged in counts 1-4 were said to have occurred when the applicant invited PMD to attend a scout camp at "Rowallan" near Romsey, when PMD was 10 or 11 years of age. Counts 5 and 6 alleged offences said to have occurred in the presbytery of St. Monica's Church following a wedding at which PMD had participated as an altar boy. The offence in count 11 was alleged to have occurred in the same room. The offences alleged in counts 7 to 8 were said to have occurred at a camp "somewhere to the north or west of Melbourne" to which PMD had been taken by the applicant; and the offences alleged in counts 9 and 10 at a "Karate camp" at "Karaglen" when PMD was 12 or 13 years old. PMD deposed that he had been taken there by the applicant and that he was there assaulted by the applicant in the applicant's car. PMD said that, shortly after these events, the applicant had endeavoured to assault him in his car in the garage at St. Monica's presbytery. PMD had forcefully resisted the applicant's advances and thereafter he said, the applicant ceased to take any sexual interest in him.

[19]

Counts 22 to 26 alleged five indecent assaults committed by the applicant against a complainant, whom we shall call "EA", on two separate occasions in 1977. EA, who was born in April 1964, was about 13 or 14 when the alleged assaults occurred. He was 35 when he gave evidence. In 1977, he lived with his parents in Reservoir, and the family attended St. Gabriel's Roman Catholic Church where, in January 1977, the applicant had been appointed assistant priest. EA was an altar boy at the church and was a member of the "Karate club" which the applicant had established. During the 1977 year, EA was taken by the applicant to a "Karate camp" at "Karaglen" in Lancefield. The applicant took EA in his station wagon with two other young children, who were brothers and who were also complainants making allegations against the applicant at his trial. We will call them "JS" and "CS". At the camp, EA said that he and the other young children present had erected tents in which they expected to sleep. At this time no buildings had yet been constructed at "Karaglen". EA said that, following dinner, the children were seated around the camp fire, and that the applicant had spoken to them about "sexual matters". Later in the evening the applicant had singled him out and asked him to sleep with him in the station wagon. In the course of the night, so EA alleged, the applicant had masturbated him, had encouraged EA to masturbate the applicant, and that the applicant had then engaged in an act of "simulated intercourse" with EA. These acts were the subject of counts 22, 23 and 24 (indecent assaults) of which the applicant was convicted. Some 2 months later, so EA alleged, the applicant invited him to attend another "Karate camp" at "Karaglen". EA asked whether he could bring his friend "John". He said that there were "about 8 boys" at the camp and that 4 tents were pitched, one of which was to accommodate EA and his friend. EA testified that the applicant had said he would sleep in their tent and placed himself between EA and John. During the course of the night EA awoke to find the applicant masturbating him. He then pulled EA's sleeping bag down, climbed on top of EA and slid his penis between EA's buttocks, again simulating an act of intercourse. These events were the subject of counts 25 and 26 of which the applicant was convicted.

[22]

Although in her directions to the jury in the course of the first trial, the judge had instructed the jury that there was no "direct" or "external" evidence capable of supporting the evidence of any of the complainants, it would seem, upon analysis of the evidence given, that such construction was favourable to the applicant. Indeed her Honour had permitted all counts on the presentment to be tried together on the basis that the evidence of one complainant was admissible upon the trial of the counts involving the other complainants. Furthermore, in respect of the evidence given by individual complainants, there was other evidence given which, in our view, was capable of being used by the jury to support such evidence. In respect of the evidence of PMD, one Gallant gave evidence that, at Rowallan, the applicant had selected PMD to sleep with him in his room. One Baker had given evidence that he had been an altar boy with PMD at St. Monica's and that, on one occasion, the applicant had invited him and PMD to his room in the presbytery and shown them a pornographic magazine showing young boys committing homosexual acts with each other. With regard to the evidence of FW that he had been assaulted by the applicant at a motel to which he and other boys had been taken by the applicant, one Carboni gave evidence that he was one of the boys who had gone to the motel with the applicant and FW and that while he and other boys had shared one room, the applicant had shared a separate room with FW. In respect of the evidence of CDS that he had been assaulted by the applicant at the "drive-in", both FW and Eyles gave evidence that they had been in the car that night and that the applicant had thrown a blanket over himself and CDS. With regard to EA's evidence that he had been assaulted by the applicant in the back of the latter's station wagon at the camp at "Karaglen", EA's brothers - Attilio and Oscar - gave evidence that they had been at the camp and that EA had slept with the applicant in his station wagon. Then there was the evidence of JS and his mother DS that the complainant CS had slept in the applicant's station wagon at their property in Flowerdale.

[25]

Counts 1 and 2 on the presentment alleged offences of gross indecency in the presence of RDV on two separate occasions between 1 January 1982 and 31 December 1982. RDV was born in February 1969 and was about 13 years old when the offences were alleged to have occurred. He was 30 years old at the time of trial, was married and living in Queensland. At the time when the offences were alleged to have occurred, he was living with his mother (LDV) and his brother (the complainant SDV). LDV was a member of an organization known as "Personal Attention and Care Team" (PACT), the members of which took responsibility for taking care of children at risk. In that capacity she assumed responsibility for the complainant CR and his sister Samantha. Thus, CR was known to RDV and SDV. RDV, SDV and CR joined a "Karate club" which was being run in Coburg by the Peaceful Hand Youth Foundation. The instructor was the applicant. During the year of 1982, RDV attended a camp at "Karaglen". At this time there were a number of buildings on the property. The main building included a recreation hall and, off the recreation hall, the applicant had a bedroom with en-suite facilities. On the first occasion RDV attended the camp all children other than RDV slept in the recreation hall. The applicant invited RDV to sleep in his bedroom. Whilst they were preparing for bed, the applicant spoke to RDV about football. The applicant had stripped to his underwear. According to RDV, the applicant told him that, during end-of-season trips it was common for members of football teams to engage in "masturbation competitions". Whilst he was discussing these matters, he lowered his underwear and commenced to masturbate himself in front of RDV. He invited RDV to masturbate himself and RDV complied. Count 1 on the presentment alleged that an act of gross indecency occurred in the presence of the complainant when the applicant masturbated himself before RDV. The applicant was convicted of this offence. RDV said that he had attended another camp later in the year of 1982 when, again, he was invited to sleep in the applicant's room. RDV said that on this occasion, the wind was howling outside and that the applicant told him a "ghost story". He then commenced to talk about the pleasures of having sex with a woman and, as he did so, had his hand down the front of his underpants fondling his penis. This was the offence of gross indecency alleged in count 2, of which the applicant was acquitted. RDV said that he had never spoken of these events to anyone until some months after his mother had rung him in late 1995 or early 1996 to tell him that SDV had been "raped" by the applicant. He had then told his wife. Later in 1996 he learned through his mother that he could make a claim for compensation through the Roman Catholic Church. He made a statement to the police in December 1996 and, in early 1997, he received compensation of $44,000. RDV said that when his mother had first told him that SDV had been raped by the applicant, she had asked him whether he had been sexually molested and he had said "No". RDV said that he believed that SDV had been with him at the first camp he attended at "Karaglen" but he could not recall whether SDV had slept in the applicant's room.

[28]

CR was born on 20 May 1970 and was 29 at the time of trial. He said that he had been a member of the applicant's "Karate club" from the time he was 9 or 10 years of age. He had been to many camps at "Karaglen". He said that, at one such camp which he had attended when he was 12 or 13 years old, he had spoken to the applicant in his bedroom. The applicant had put his hands down the front of CR's shorts and masturbated him. This was the offence of indecent assault alleged in count 5. Immediately after this event, CR said that the applicant had leaned forward and taken CR's penis in his mouth. Then he had grabbed CR by the back of his head and pushed it forward towards his lap and placed his (the applicant's) penis into CR's mouth. This was the offence of oral rape alleged in count 6. CR said that he had vomited and that the applicant put his arm around him saying "God forgives you because you tried". He said that he had continued with karate thereafter because he liked it. He did not tell anyone about these events because he was "too afraid". In cross-examination, he said he recalled one occasion when LDV had taken him, his sister, RDV and SDV to a camp at "Karaglen". On that occasion, he recalled that the four of them had slept in the recreation hall. He also conceded that when he had been first approached by the informant, Tyler, on 23 September 1997 he had made a statement saying that he had "never been assaulted in any way" by the applicant. He said that, after the police had left, his father had seen him in a distressed state and that, when the police had returned, he had made another statement. He admitted that he had a long criminal history pre-dating 1982 and was facing charges at the time he made his statement implicating the applicant. He could not say when the assaults upon him occurred - it "could have been 1982, 1983 or 1984". After he had made his first statement to the police, he had written some notes in which he said that the applicant "had tried to put his penis in my mouth".

[29]

The complainant MM was the only female complainant in the two trials. She was approximately 32 years of age at the time of trial and gave evidence of events which occurred in 1982, when she was approximately 14 years of age. MM was the sister of PMD who had, as we have previously noted, given evidence at the first trial of assaults committed by the applicant upon him between 1974 and 1977. The events about which MM gave evidence were the subject of count 7 on the presentment which alleged an indecent assault by the applicant upon her at "Karaglen" "on or about the 9th day of October 1982". MM said that she had first met the applicant when she was 6 or 7 years of age whilst he was the priest at St. Monica's Church. Her family, she said, respected the applicant, and she (MM) adored him. After the applicant had left St. Monica's, her family maintained contact with him, and in 1982 she had joined the "Images Theatre Company" which was established by the Peaceful Hand Youth Foundation. MM said that on 8 October 1982 she had attended a week-end camp at "Karaglen" with other members of the group. She was able to nominate the date by reference to a diary which she maintained. She said that the applicant had driven her and a friend to the camp and that, on the way, the applicant had told her that he was "falling in love" with her and that "when priests were allowed to marry, he would marry her". She said that, on the Saturday night, an argument had developed between members of the group. Although she was not involved she had become upset. The applicant had called a number of children, individually, into his room. When she was called in, he closed the door and told her that there were some girls in the group who wished to sleep with him but he had declined. MM said that she was seated on a bed in the room. She then lay on it. The applicant, she said, lay next to her and kissed her on the lips inserting his tongue into her mouth. She pulled away and said "No". MM said that the applicant had then taken her hand and placed it on his groin. He said, according to her, that there was "no erection" and that therefore there was "nothing sexual" about his conduct. The indecent assault alleged by the Crown was the taking of MM's hand and placing it upon the groin of the applicant. MM said that she had been more offended by the kiss because it was "so intrusive". In cross-examination, she said that she had recorded the applicant's conduct towards her; not in her diary but on a separate sheet of paper which she had given to the police. When produced that sheet had the allegations crossed out. She conceded, however, that she had made an entry in her diary on 16 September 1982 which read:

[50]

Her Honour then turned to that aspect of the case which might most obviously and directly call for a Longman warning, in so far as it raised an almost identical factor as was discussed in Longman, namely that the trial took place "after the passage of more than 20 years": Longman[11]. Her Honour specifically observed that the complainants in the present case were young boys at the relevant time and that the jury should consider the effect that the passing of time would have on their recollection. She quite properly said that it would be "denying common sense" to suggest otherwise than that that period of delay would have had a part in faulty recollections of things. Likewise she properly referred also to the fact that there was a long delay in prosecuting the offences which arose from the delay in reporting them in about 1996 or 1997 for the first time. That delay, she said, made applicable "a number of careful considerations". She emphasised that it was common human experience that memories can fade over time and that honest people sometimes convince themselves that incidents happen in a particular way. She told them that "one cannot ignore the effect that human imagination or prejudice and emotion or suggestion can have on memories of events after some years". On the contrary, however, she said that "some things stick in a person's mind and they never fade, and they can be accurately recalled, particular events, with clarity ... ". This she said enabled a jury to believe what they were saying was true, "after having given that evidence full scrutiny". She correctly stated that, because there were no statements made at the time of the alleged events, the police would have lost the capacity adequately to investigate them, to search for relevant evidence including other witnesses and to question people further so as "to either disprove or establish these allegations". Moreover, again correctly, she said that not only would the police have lost that capacity "but the accused will have lost any chance to establish facts and circumstances which may have helped him to disprove the complainants' allegations". Had they been made shortly after the events, "it would have been possible to explore in some detail the alleged circumstances surrounding" them. To this she added some examples taken from the present trial, and the person named "John" described by other witnesses. There seemed to have been various events which it was clearly conceded had been blurred by several of the witnesses which arose "undoubtedly, members of the jury, from the fact that there is such a long delay". She finally made reference to the problems of adults' talking about childhood recollections and trying to recall incidents in their childhood.

[53]

It will easily be seen that this comment on the totality of these matters was not expressed in the terms which the judgments of the High Court in Longman and Crampton[12] appear to require, at least inasmuch as the jury were not then told that it was "dangerous to convict" without scrutinising the evidence with great care (Longman at 91) or using words to like effect: see e.g. R. v. Mazzolini[13]. Moreover, this last quoted paragraph effectively only told the jury that they should scrutinise the relevant evidence carefully. That language, adopted and adapted over many years and forming the part of the relevant passage in Longman[14], would, nevertheless to our way of thinking, merely tell the jury what they are always obliged to do in a criminal trial. Important as it is, it really adds very little distinctive weight to the required direction, except to emphasise at the critical stage of the charge the need for the jury to be satisfied to the required standard[15]. Without some element of warning the observations we have just quoted therefore could not be seen to have been adequate for the purpose. What was argued by the Crown, however, was that it should be seen as part of a comprehensive charge in which the opening words must be given due weight. That, of course, had taken place some time earlier, indeed, on the transcript it was some nine pages earlier and there had been a variety of evidentiary matters discussed in the meantime. It is therefore difficult to be satisfied that the jury would have perceived the two passages as directly related one to the other, such that they would have viewed the whole of it as requiring them to treat the evidence on the basis that it would be dangerous or unsafe to convict without being satisfied to the relevant standard. Moreover, unfortunately, it will be recalled that the words used referred only to "the potential for error" and did not describe any element of danger, unsafety or the like, or so it was contended on behalf of the applicant.

[65]

The other four items which, it has been contended, should have formed the basis either of a separate or inclusive warning are factors which in our opinion did not require specific additional direction of that kind by the trial judge. That it was appropriate that she comment upon them is consistent with Longman and Crampton but there is no doubt that she did and did so with fairness. It is only the aspect of danger arising from delay[18] which is said to require a mandatory warning. But the four matters referred to were specific matters raised in the course of this particular trial and which were clearly enough matters of dispute or matters which counsel fairly raised as throwing doubt upon the veracity and reliability of the Crown witnesses. As has been pointed out in some detail in both Miletic[19] and Mazzolini, it is not every complaint about the Crown case or its witnesses which calls for a Longman warning. Essentially, as stated in those cases[20], the warning in mandatory terms is ordinarily only required where the dangers or risks in question are of a kind which would not be obvious to the 12 members of the jury bringing their collective wisdom to the specific dispute which was the subject of the trial. The other items were each of a kind where not only is it clear that counsel had relied upon them, indeed placed great emphasis upon them, but they were each matters which the jury could have assessed and accepted or rejected for themselves without the need for a specific further warning covering those matters. The risk of prejudice because of the relationship between the parties was obvious in the sense that the jury could well assess the degree to which the complainants might be likely to tell untruths because of the alleged relationship. Likewise collaboration and prompting among complainants was raised and was clearly capable of assessment by the jury. So too the fact that the complainants, or some of them, were known to each other, which we assume is merely a variation on the allegation of collusion was well able to be assessed by a jury having regard to counsel's arguments. Finally the temptations of compensation and the risks that allegations might be made for that purpose is a common enough allegation which the average member of a jury would be well able to assess.

[74]

Her Honour referred to the evidence given by PMD that Tota had been outside the room at Rowallan on the morning after the events described by PMD and had been heard to say "We know what you and Father have been doing". She also directed attention to the evidence of CDS that Tota had been in the car when he (CDS) had been assaulted at the "Drive-in theatre". Her Honour also directed the jury's attention to the evidence of CS and JS suggesting that their father FS had been at the house in Flowerdale when the applicant was said to have slept in his car with CS; and to the evidence of FW that Gallichio was one of the boys who went to the motel with the applicant and FW. Her Honour told the jury that, if they did not accept as reasonable the explanation as to why these witnesses were not called, they would be entitled to infer from the fact that they were not called that their evidence would not have assisted the Crown case in respect of the issues upon which those complainants had given evidence. Her Honour reminded the jury that, at the end of the day, their verdicts could only be returned on the evidence which was given and that they could not speculate about evidence which might have been called, but was not called. These directions do not appear to have been the subject of any specific exception taken by the applicant's trial counsel but, in the course of taking exception to the terms of her Honour's "Longman warning", counsel submitted that "it was appropriate in this case for Your Honour to make direct comment ... with the authority of your ... office as to the consequences of the failure by the prosecution ... to call particular relevant witnesses .... You should say that there has been no sensible explanation by the prosecution in respect of calling particular witnesses ...". It appears from the transcript that this exception did not go to the terms of the directions which her Honour had given, but rather was directed to the prosecutor's obligation to call all relevant witnesses at the trial; a matter which is not the subject of any ground of appeal.

[77]

Once the trial judge had indicated that she proposed to give a "Jones v. Dunkel direction", it was, we think, open to the Crown to lead evidence through the informant, explaining why evidence from the nominated witnesses would not be called. It is the unexplained failure by a party to call a witness who would otherwise be expected to give evidence which entitled the adverse inference, of the type referred to in Jones v. Dunkel, to be drawn. Whether the inference should be drawn and, if so, the weight to be given to it are questions for the tribunal of fact. One of the factors which the tribunal would necessarily consider in determining whether the inference can and should be drawn, or in determining the weight which should be given to it, is the explanation proffered by the party for not leading the evidence. The explanation given by, or on behalf of, a party is a matter of fact and not hearsay. It is a question for the jury whether they accept it or discount it. In our view, her Honour's directions to them as to the manner in which they should use the failure to call the suggested witnesses and the explanations given for that failure were appropriate and adequate in the circumstances. Having regard to the entirely peripheral and cumulative nature of the evidence which the suggested witnesses could have given, we think that the directions were unduly favourable to the applicant. Indeed, the grounds raise the question of the circumstances in which such directions are appropriate in a criminal trial. . The so-called "Jones v. Dunkel direction" is an evidentiary principle which has its primary application in the administration of civil justice where the issues to be litigated are defined by the parties and the evidence to be called in proof of those issues is within the unfettered discretion of the parties. The transportation of the principle into the administration of criminal justice has to be undertaken with caution because different considerations apply[21]. The application of the principle against the interests of the accused is fraught with the danger of trespassing upon his entrenched right to silence; and thus of inverting the onus of proof. To apply it with impunity against the Crown may unfairly impinge upon the prosecutor's solitary, but undoubted, discretion (explained in Apostilides v. R.[22]) not to call a witness whom he or she believes to be unreliable or not required for the proper and fair presentation of the Crown case. The exercise of this discretion is not lightly to be questioned by the trial judge but it must, of course, be exercised in good faith against the background of the

[95]

"The law does what it can to protect the integrity of the criminal trial. In the forefront is the law relating to criminal contempt. If the protection given by that law should fail, the trial judge is given powers to adjourn the trial until the influence of prejudicial publicity subsides and is required to direct the jury that their verdict must be based on the evidence given before them on the trial and that, in reaching their verdict, they must disregard knowledge otherwise acquired and any revulsion against or sympathy for the accused. The trial judge may conduct the trial in whatever manner is appropriate (within the ordinary procedural constraints) to counter the effect of pre-trial publicity prejudicial to an accused. However, these protective mechanisms cannot guarantee perfect impartiality ... Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. In Munday (1984) 14 A Crim R 456, at pp 457-458, Street CJ repeated an unreported passage from one of his Honour's earlier judgments: '... it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury.' If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial."

[105]

We also agree with Callaway, J.A. that ground 3(ii) has been made out and that, as a consequence, there will, regrettably, have to be a re-trial of the remaining counts which were the subject of the second trial. Where, in a trial of an accused person, the Crown is alleging a large number of sexual offences against multiple complainants, and the judge has admitted the evidence of one complainant as probative of the counts involving other complainants, there will, as a matter of human nature, be a ready tendency on the part of the tribunal to find guilt on the basis that it is improbable that a number of complainants would make allegations of similar conduct on the part of the accused unless those allegations were true. Where, however, there is evidence to suggest that there is a possibility that the similar complaints are the product of collusion, motivated concoction, or of innocent infection due to media publicity or like cause, s.398A of the Crimes Act 1958 requires that the existence or otherwise of such possibility be determined by the jury rather than a factor to be taken into account by the trial judge in determining the admissibility of the evidence[43]. This heightens the responsibility of the trial judge, in cases where the evidence warrants it, to give full and clear instructions to the jury, with the authority of his or her office, that the possibility of infection due to media publicity may account for the similarity of complaint of one or more of the complainants and that, if that possibility cannot be excluded, they cannot use such evidence as rendering more probable the evidence of other complainants. In this case, where the applicant had argued, with justification, that the evidence suggested that such a possibility existed, we agree with Callaway, J.A. that a direction along the lines of that which he suggests in [159] should have been given. Because it was not given, we agree that a miscarriage of justice occurred of a nature which cannot attract the application of the proviso.

[128]

Next, it would appear again that her Honour embarked on making the comments presently under discussion[56], and perhaps believing them to amount to a warning, in the context only of there being no confirmatory evidence supporting each complainant's testimony. It came immediately after a discussion of the effect of delays in making complaint, but it was not introduced by any reference to the critical matters identified in Longman as requiring a warning, namely the difficulties between the time of the alleged events and the applicant's receiving notice of the allegations. As already observed that subject was not discussed for some time, about six or more pages on the transcript, and the related warning, if it was in fact related, does not appear for some 12 pages after these comments. Apart from the addition of the word "danger", albeit joined to the word "potential", the present discussion was not dissimilar to that in the first trial where it was also essentially a discussion about scrutinising the evidence carefully from complainants whose evidence is otherwise unsupported.[57] Again it would appear to put the cart before the horse. The real need for the warning is the long delay and its effect on the conduct of the accused's defence, in which case the absence (or possible absence, since it is a matter for the jury) of supporting evidence will make the giving of a Longman warning almost invariably necessary. Counsel for the Crown sought to argue again that the jury would be able to relate this first attempt at a warning to the later direction to scrutinise the evidence carefully, but that to our way of thinking was by no means obvious. In the first trial the difficulty was overcome in our opinion by the final warning, in almost conventional terms, provoked by counsel's objection and which could be seen to have a general application and in particular an application arising out of the delay in prosecution. Here the learned judge refused to give any such redirection and thereby eschewed the possibility of relating the reference to danger to her otherwise comprehensive discussion of the risks and difficulties which the delays might well be seen to have caused to the applicant.

[129]

Then again, the learned judge in these early comments which referred variously to potential danger and potential for error immediately qualified those directions by telling the jury that, as a matter of law, supporting evidence was not necessary and then reminded them that the Crown was contending that it was improbable that "five young people would be telling similar lies about the accused man". This qualification appears to us to have been premature and unfair to the applicant because, before the jury could use the evidence of one complainant as support for, or as being supported by, the evidence of other complainants or any of them, they would need to be satisfied, in the context of, and having paid heed to, an appropriate warning, that the evidence of that complainant was truthful and accurate. This was a case where the jury, in the face of an appropriate warning, might well have considered that it would not be safe to act on the evidence of the complainants - or some of them - alone. In the course of reciting the evidence given at the second trial, we have pointed to various matters suggesting inaccuracy or unreliability in the evidence of the complainants.[58] In particular, there were the inconsistencies apparent in the evidence of RDV, SDV and CR as to the sleeping arrangements which existed at the only camp attended by SDV; there was the fact that CR had made two contradictory statements to the police as to whether the applicant had molested him; and there was the apparent inconsistency which existed between the evidence given by MM and the contemporary notes which she professed to have made. It is true that, in the course of general directions, her Honour instructed the jury that, in considering and evaluating the evidence of the complainants, they would need to consider "the effect which delay may have had upon their memory" and the fact that "the accused had lost the chance of establishing facts and circumstances which may have helped him disprove the complainants' allegations", but these directions, in our view, fell well short of a type of warning which should have been given.

[130]

Finally, great weight was put by counsel for the Crown[59] on the fact that the learned judge had directed the jury on several occasions to scrutinise the evidence carefully, as if that were the sole criterion of a proper Longman warning. "Danger" and "error", though only of a "potential" kind, were used in conjunction with those words only in the first part of her "warning" where she considered the lack of confirmatory evidence. When discussing delay specifically, although the comments were otherwise pertinent and fair, there was not even then, in the course of about three pages of discussion of the issue, any reference to the need, for that reason, to scrutinise the whole of the evidence carefully, let alone any warning as to the dangers of convicting upon it. Finally, on the last occasion when she came to the issue, albeit under the umbrella of "all these matters that I have mentioned", the learned judge said only that it was necessary that the jury "must scrutinise the evidence carefully". Apart from some general observations about satisfying themselves as to the accuracy and reliability of the evidence before convicting there was, it may be conceded, a further reference to delay, the effect of the passage of time and the ability of the accused to defend the allegations, but again her Honour said that the jury might go about its task "in any way you consider appropriate" so long as they looked at the evidence carefully and scrutinised it for accuracy and reliability. There was no reference to "danger" at all at this point. It will be remembered at trial prosecuting counsel had earlier also sought to satisfy any concerns of the trial judge by saying that a reference solely to scrutinising the evidence carefully was sufficient. But it was a misconception of the law for the submission to be made that there was "no such thing as a proper Longman warning". Of course, it has been recognised that the language to be used may vary according to the circumstances, but it ought to be clear by now, as recently emphasised in Crampton, although it was by no means a novel proposition, that there must be a warning and that the warning essentially must state that it is dangerous or unsafe to convict.[60]

[131]

What should be clearly understood, however, is that a charge confined in these circumstances to a direction to scrutinise the evidence with great care is simply insufficient. It is, as has already been said, merely in those terms a repetition of the jury's obligation in any criminal trial having regard to the need for the Crown to prove the case beyond reasonable doubt. What is significant in Longman, in Crampton and in each of the other cases where the principle has been applied, is that that the very careful scrutiny directed by the trial judge is to be made subject to two essential qualifying circumstances. It is in the first place a negative condition which must be satisfied if the warned danger is to be overcome, but the condition also requires that the scrutiny be conducted not merely with great care but "considering the circumstances relevant to its evaluation" and most significantly "paying heed to the warning"[61]. It would follow that unless the judge gave a warning of the relevant danger, any direction to scrutinise the evidence, in the absence of the warning to which heed must be paid, would be insufficient. That is precisely what occurred here. Even if it be accepted that there was some reference to danger at an early stage of the charge[62], failing to follow it either a minute or so later or, as here also occurred in the context of delay, following it some time later with a direction as to careful scrutiny unrelated to any warning as to danger cannot satisfy the requirements of the test. That is not to say, however, that where a judge distinctly gives a warning of the danger of convicting on the evidence of the complainant alone and then follows it almost immediately with a direction to scrutinise the evidence with great care, the two may not be fairly read together. It would be difficult to ignore a clear warning in such circumstances, so that the failure to follow the formula literally might not ordinarily bring the direction down. That is why the direction given at the very end in the first trial just passed muster. No such factor exists in relation to the directions given at this second trial and the directions were therefore quite insufficient.

[229]

"The prosecution said to you in closing the case, they said, look, how unlikely or how improbable is it that five complainants, not all of whom are known to each other, would all make allegations of a similar nature against the same man? That is an argument that is open to the prosecution but you need to look at that argument very carefully because in essence what that argument reflects is this sort of logic. I give you a clear example. If you had, for instance, 20 people all unknown to each other, none of them have any connection with each other, and without knowing about the existence of the other, each of those 20 people make allegations of a similar nature against the same individual, right, then logic does compel one to the conclusion, well, it can't be by coincidence that 20 people all unknown, unrelated to each other, make similar allegations against the same man. That's the logic of it, and as I say, you don't leave logic behind when you come to deliberate on your verdicts, and that is the type of logic that the Crown say you should apply in these five trials. The problem with that is this: that the example I give of 20 people all unrelated all making the same complaint about the same individual is the logic is fairly compelling because you say, well, it can't be just coincidence unless it's true, but there is obviously a point in time in that sort of logic where you say to yourself, well, I don't know. Could it just be coincidence? It could be any one of a number of reasons, and in this case, you see, that logic, I suggest to you, simply is not open to you. Firstly, it is clear that at least three of the complainants are well known to each other. SDV, RDV and CR. Those three complainants are well known to each other. They all refer, by name, in each other's statements to the other. Although both RDV and SDV gave evidence that they have never discussed their complaints with each other, certainly RDV knew about SDV's complaint before he, RDV, made his complaint. So that that logic that I say to you of people totally unrelated and unknown to each other, if all you had were the trials of RDV and SDV, would not be open to you because RDV already knows about SDV's complaint and the logic of saying, well, why would he complain totally independently and separately against the same person, is simply not open to you. I hope you understand what I'm saying. This is a very important point. Even though they may not have discussed their complaints with each other - well, I suggest to you that you shouldn't accept that in any event. I mean, certainly one would think there would be discussions between, if not directly between RDV and SDV, certainly between RDV and LDV and LDV and SDV about, you know, what each of them are all saying and LDV, in fact, co-ordinating the claims for compensation, she arranging for solicitors and all this sort of thing, that certainly that logic doesn't apply in that case because they both know about it. Well, certainly RDV knows about SDV's complaint so this is not that clear example of 20 people unrelated and not knowing that each, anyone else has made a complaint - all of a sudden making a similar complaint against the same person. The logic also that that proposition breaks down with, CR because CR knows the DVs and you will recall this critical piece of evidence, I suggest to you. LDV, I asked her, I said did you phone the police, did you phone Ralph Tyler and tell him to go and see CR because he is a victim. And you may have forgotten that but I'd asked her specifically that question and she denied that. She said I never did that. I never phoned Ralph Tyler and told him to go and see CR because he was a victim and yet Mr Tyler said that she did. He said, yes, LDV did ring me and did tell me, it's in my notes. I've got a note of it here. She rang me and she said CR is a victim and the word 'is' was in capitals and underlined in his notes. So there's clearly communication going on although not directly. It doesn't need to be direct communication but there is certainly an awareness amongst each of these three complainants, both DVs and CR of the existence of each other's complaints and when there is that sort of awareness, the logic as I say, that 20 people totally unrelated, unaware of complaints being made, just breaks down. Logic does not apply. You will also recall that MM was not totally uninfluenced by any factors in terms of making complaint. I think she conceded that she was aware of some media publicity concerning Glennon, certainly before she made her statement to the police, maybe not before she made her complaint to her mother but I put her in a totally separate category in that the nature of the complaint is different and I've gone through, you know, the logic of how you should approach her complaint in any event. Now, that really leaves, I suggest to you, the proposition that there may be two sorts of witnesses who may have independently complained; that is on the one hand the group of three, RDV, SDV and CR and on the other hand JC. JC has made his complaint in 1991 and he has also told you that prior to making that complaint in 1991 he was aware of media publicity concerning Glennon and I suggest to you that once you're aware of publicity, you may be motivated by that publicity to make complaint and therefore the logic of the example that I give you of 20 people unrelated and for no reason, no discernible reason, all independently making complaint against the same individual simply breaks down and cannot apply in this case and her Honour will give you clear directions of law as to how, if that logic is open, how it should be applied and whether or not you can apply it in this case." (Emphasis added.)

At a glance

Court

Decision date

Before

Source

Judgment (348 paragraphs)

Parties