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[2001] VSCA 17
Court of Appeal (Vic)
2001-03-16
WINNEKE, P., ORMISTON and CALLAWAY, JJ.A.
Original judgment source is linked above.
[ 2001] VSCA 17
Criminal law - Sexual offences against children - Pre-trial publicity - Whether trial to be stayed - Adverse publicity during trial - Whether jury to be discharged - Severance - Propensity evidence - Whether rightly admitted - Directions concerning such evidence - Collusion - Innocent infection - Longman warning - When required - Whether sufficient - Proximate complaint - Absence of proximate complaint - Alleged failure of prosecution to call relevant witnesses - Jones v. Dunkel direction - Two presentments - Re-trial directed on second presentment - Sentence of eight-and-a-half years' imprisonment affirmed on first presentment - Non-parole period of six-and-a-half years fixed - Crimes Act 1958, ss.61, 398A.
"In my opinion the broadcasts, and each of them, would have influenced most listeners to conclude that [the applicant] was a despicable man, a dissembling priest, who corrupted young people after using his pseudo-clerical position to gain their trust."
Hinch was gaoled for a brief period in 1987 and released on 26 October of that year. In December 1987, the applicant was presented for trial on the charges which had previously been preferred against him and which had been adjourned pending the finalization of the proceedings against Hinch. In August 1988, an application was made for a permanent stay of the proceedings on the basis that the applicant would be unable to receive a fair trial because of the pre-trial publicity. This application was rejected and, ultimately in 1991, the applicant was convicted in the County Court of 5 of the charges alleged against him and acquitted of another 12 charges. The applicant then appealed to the Court of Criminal Appeal against the convictions in part on the basis that the trial had miscarried on the grounds that the applicant could not be fairly tried because of the prejudicial publicity, and that the convictions recorded were, as a result, unsafe. A majority of that Court (Southwell, J. dissenting) held that the verdicts were unsafe and unsatisfactory due to unfairness engendered by the pre-trial publicity as to the applicant's prior convictions. This decision was subsequently overturned by the High Court[2] and the matter was remitted to the Court of Criminal Appeal to deal with the outstanding grounds of appeal. In the event, the appeal was dismissed and the applicant was required to serve the sentence imposed of 9 years 1 month with a minimum of 7 years.[3] On further appeal to the High Court, a conviction in respect of one count was quashed, but this did not materially alter the length of sentence to be served.[4]
"In 1987 [Hinch] went to jail for a fortnight over his comments on the prior convictions of Michael Glennon, a former priest who had been charged with molesting children."
Following the publication of the article, an application was made to the trial judge for the discharge of the jury. Her Honour refused the application.
"Sometimes I wonder if it's all that terrible. God, it was only a kiss; then again it was forced by a priest. What to do? I've thought about writing to Derryn Hinch who seems to know a hell of a lot about what I went through."
MM's mother gave evidence that MM had told her, when MM was about 20 years of age, that the applicant had kissed her, but agreed that - as with the diary note - no mention had been made about placing her hand on his groin.
(a) that the judge "failed to properly direct the jury in accordance with Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79" (ground 4);
(b) that the judge "failed to adequately put the defence case in her summing-up" (ground 9);
(c) that the judge erred "in failing to order a permanent stay on the basis of adverse pre-trial publicity" (ground 10);
(d) that the judge erred "in failing to discharge the Jury as a result of adverse media publicity during the trial" (ground 11);
(e) that her Honour erred "in admitting evidence which only showed the applicant as having a propensity to commit sexual offences" (ground 12).
Ground 4; "failure to properly direct the jury in accordance with Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79"
(1) the absence of "corroboration";
(2) the considerable delay of the complainants in making complaint;
(3) the considerable delay affecting the applicant's ability to prepare and present his defence;
(4) the lack of detail in the allegations as to time and place;
(5) the danger of the passage of time "hardening fantasy ... into absolute conviction of reality";
(6) the risk of prejudice arising from the nature of the offences and the applicant's relationship with the complainants;
(7) the risk of collaboration and prompting among the complainants;
(8) the fact that all complainants were known to each other;
(9) the awareness of the complainants that compensation was available.
Counsel conceded that the judge did not have to deal with every one of these aspects of the evidence. This may serve to emphasise that the applicant's case is overstated, but, in any event, it is not clear that each was relied upon at the trial for the purpose of persuading the judge to give a Longman warning or, more particularly, to repeat such a warning relating to each aspect in terms which sufficiently reflected the authority of the judge's office.
"Now, that is often the case of course in offences of this nature, and there is, as a matter of law, no need for you to have external evidence before you are entitled to convict. But you have to be very careful in looking at the evidence in these circumstances, because in its absence the potential for error does become greater, and that is a matter for you to assess and use your own common sense. I mean, you have got to show some caution because there is a risk that a person may have a motive or hidden reasons for falsely accusing the accused person. There is a risk that the accuser is a very convincing witness and there is a potential for misleading evidence and you must be careful to scrutinize the evidence for its truth and its accuracy in cases like this. ... You have to see that there is this potential for error. So it does require you to undergo a careful exercise of scrutiny. These are only comments I make to you. They do not bind you, but you would be quite wrong if you ignored the obvious potential for error when you are looking at these matters and looking at the evidence."
"In that sense the evidence is also affected and you have to look at that as to whether or not you think there has been some significant impact on the evidence and the complainants' recollection of it. As I say, these are just matters that really point out to you, I suppose, a lot of the issues that you are going to scrutinise carefully when you are looking at all of this evidence in relation to each of their accounts, bearing in mind the Crown has the onus of proof throughout the whole of this trial to prove each [of] these allegations beyond a reasonable doubt."
"A matter which has particular significance in a criminal trial is the length of time between the offences and the complaint to police and thus the possibility of investigation in this case, and that is that it is apparent on the evidence that was over some 20 years old before there was a complaint." [sic]
It was perhaps unfortunate that she introduced this observation by reference to the delay between offence and complaint, for, of course, she had already directed them correctly, in accordance with the statute, in that she had advised them that there might well be reasons why a victim of a sexual assault might hesitate or refrain from complaining. However, she proceeded to refer to the more relevant aspects of delay as emphasised by Longman and subsequent High Court decisions[16]. She told the jury, again, that the delay would have "an obvious effect on memories and recollection but it also [had] the effect of loss of potential evidence which may have allowed the complainants' allegations to be fully tested at the time of the allegations." She said that that opportunity had been lost in the present case and that it could not "adequately be tested in the trial because of the passage of time". She reiterated that witnesses who might have given potential evidence could not be "properly investigated by either the police or the accused". Thus the applicant in effect had "lost the ability to explore and test the allegations close to the time that they were alleged to have occurred". She then finished her discussion and redirection by expressing her warning in the following terms:
"So as fact-finders you need to be fully aware of the dangers of convicting on the unsupported evidence of a complainant unless after careful scrutiny of the evidence you are satisfied of its truth and of its accuracy. So what I am saying to you is that these matters, along with the other specific matters that I directed you to in assessing the evidence, point to a potential for error, not that there is error, the assessment is entirely up to you, but they do require your very careful consideration. If after careful scrutiny you are satisfied of the truth and accuracy of the evidence then you are obliged to convict but if you are not so satisfied then you must acquit in relation to the charges."
Grounds 7 and 8; failure to give proper direction in accordance with Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298
"You can also look at any inferences of fact which the defence urges you to draw from the evidence which has been called, and you may more readily and confidently draw the inference which the defence asks you to draw because the Crown has not called a witness whom you believe may have been able to contradict that person ..."
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.
Crown's over-riding obligation to call all witnesses who are available and able to give reliable and relevant evidence as to the facts in issue, whether that evidence is favourable or unfavourable to the accused person. Failure to abide by the obligation may result in a miscarriage of justice.
"In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v. Dunkel must not be applied in criminal cases without taking account of those considerations. If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecution `has the responsibility of ensuring that the Crown case is presented with fairness to the accused' and in many cases would be expected to call the witness in question as part of the case for the prosecution. And if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused." (Footnotes omitted.)
Similar comments about the caution to be applied in criminal trials in giving a "Jones v. Dunkel direction" have been recently made in Newland[25], OGD[26], Taufna[27] and Scott[28]. Again, in R. v. Martin[29], Callaway, J.A., giving the judgment of this Court, referred to the issue of the giving of a "Jones v. Dunkel direction" in a criminal trial in these terms:
"I turn to the second [contention of counsel], which was that the judge erred in not directing the jury to infer that the evidence of the complainant's aunt would not have assisted the Crown. As Buchanan, J.A. pointed out in the course of the argument, there is some tension between a direction in those terms and the prosecutor's duty, which often obliges him or her to call material witnesses unfavourable to the Crown case. How then can it be said that the jury may infer, from the omission to call a witness, that the evidence of that witness would not have assisted the Crown? It may be that the prosecutor considered the witness unreliable or did not think that the evidence was necessary to ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused."
Ground 10 - whether the judge erred in failing to order a permanent stay because of adverse pre-trial publicity
"Not only does the Court of Criminal Appeal appear to have erred in principle in rejecting the assessment made by Crockett, J. but the Court also appears to have given little, if any, weight to the community's right to expect that a person charged with a criminal offence be brought to trial, the means available to a trial judge to ensure a fair trial and to the steps taken by the trial judge in the present case." (Footnotes omitted.)
"Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes[36], adverse revelations in a public inquiry[37], absence of competent representation[38], or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make a trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party, but particularly the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournment or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer."
In cases such as this, where persons of dubious notoriety are brought to trial against a background of adverse publicity, there is a tendency to attribute too much frailty to our criminal justice system and to under-estimate both the flexible mechanisms which it employs to avoid unfairness in the trial process and the robust common sense and sense of duty of those who are called upon to administer it. The system is designed to operate in a society which cherishes the competing rights of freedom of expression and the right of a person, charged with serious offences, to a fair trial. As Brennan, J. (with whose reasons Dawson, J. agreed) said, in the case of Glennon[39]:
"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."
As we have said earlier, the trial judge in this case concluded that the fairness of the trial of this applicant could be adequately secured by the provision of the safeguards to which Brennan, J. referred. Those safeguards were applied and the directions which she gave in these trials, designed to counteract any possible prejudice flowing from adverse pre-trial publicity, were full and adequate, and no complaint about their adequacy was made either at trial or upon this application. Nothing is to be seen either in the course of the trial, or in the verdicts themselves, which would suggest that the trials had miscarried or that the verdicts were unsafe. Accordingly we are of the view that this ground must fail.
Ground 11 - Failure to discharge jury following adverse media publication during trial
"In 1987, he went to jail for a fortnight for contempt of court over his comments on the prior convictions of Michael Glennon, a former priest who had been charged with molesting children."
It was this statement which was the basis of an application by the applicant's trial counsel, made on 18 May 1999, for the discharge of the jury. Her Honour refused the application on the grounds that the nature of the publication was such that the high degree of necessity for a discharge of the jury at that point in the trial had not been demonstrated[41], and that any potential prejudice would be covered by directions which had already been given and would be further given in her charge.
"Members of the jury, it is probably commonsense that where there is only one witness who gives direct evidence against an accused person there is a potential danger to convict without the presence of some other evidence which confirms that evidence. That is evidence independent of a complainant's evidence which would tend to confirm his or her version of events, not only that the crime is committed upon the complainant but it was the accused who committed that crime. In all cases like this it is very common that there is not going to be another actual witness of the events in question. By their very nature it is unusual to have another eyewitness in relation to these types of offences. As fact finders, you need to be fully aware of the potential dangers of convicting on the evidence of one witness unless after careful scrutiny of the evidence you are satisfied of its truth and its accuracy." (Emphases added.)
"In any case, where there is no external evidence to support a witness as to who it was that committed an offence against them, you have to consider the potential for error. I should point out that it is not necessary as a matter of law to have supporting evidence which confirms or supports a complainant as to who committed the offence, although you may consider in some circumstances that in its absence the potential for error becomes greater."
As to this she said that this was a matter for the jury "to assess in the circumstances of each of the cases ... using your experience and your commonsense". As to this she said:
"Caution would suggest that there is a risk that some people may have motives or hidden reasons for falsely accusing persons of crime. That is why it requires you, members of the jury, to look at the evidence and scrutinise it carefully in relation to each of these cases."
"At the end of the day ... what I am directing you in relation to all these matters that I have mentioned is that you must scrutinise the evidence carefully. You must satisfy yourself of its accuracy and its reliability before you could proceed to convict and you do this taking into account the evidence and the specific directions that I have given you in relation to that evidence and what use you might make of it. The specific aspects that I have raised with you such as the delay which has elapsed since the events, the ages of the complainants, the effects on memory and the effects the passage of time may have had on the possible evidence available and on the potential to defend the allegations and the fact that there is no other direct evidence in relation to independent individuals and the specific inconsistencies are matters which you must consider and which I think are issues that are important to your consideration. Obviously when undertaking your scrutiny, you may go about your task in any way you consider appropriate as long as you do look at the evidence carefully and scrutinise it for its accuracy and reliability. I am not saying to you ... that there is error. The assessment of evidence is very much a matter for you but I am pointing to you the existence of some of the circumstances that exist in the evidence in this case which do require scrutiny and consideration in your assessment. If, after you have assessed the evidence and you are satisfied in relation to a particular matter, of its truth and its accuracy, then you are bound to convict. If you are not so satisfied, then equally you are bound to acquit."
The rest of the charge dealt with other aspects of the evidence, as well as summarising the evidence relating to each count in some detail.
"But 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[50], 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 20 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 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."[51] (Emphasis added.)
"10. The learned trial judge erred in failing to order a permanent stay on the basis of adverse pre-trial publicity."
The question on appeal is not, strictly speaking, whether the judge erred but whether a miscarriage of justice resulted from the failure to order a permanent stay.
"1. The learned trial judge erred in ruling that the evidence in respect of each of the counts was mutually admissible. 2. The learned trial judge erred in failing to order severance of the counts including one particular complainant from counts involving other complainants."
Mr Traczyk conceded that ground 2 could not succeed if ground 1 failed, but he mounted a spirited attack on the ruling impugned in ground 1 and the directions the subject of ground 3, to which I shall come later.
"[T]he aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts."
Returning to that topic at 462, the Lord Chancellor continued:
"When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution[75] the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle."
is well illustrated by the fact that neither Winneke, P. nor I thought that all the similar fact evidence in that case was mutually admissible, even though all of it involved sexual assaults on boys whose families were among the applicant's parishioners.[78]
"Although there was no question of collusion or other contamination of the evidence raised in Director of Public Prosecutions v. P. [1991] 2 A.C. 447, I think it is important to notice that the test of the necessary relationship was put upon the basis that the evidence is accepted. I consider this an essential for a test of the kind set out in Director of Public Prosecutions v. P. to be workable since it is obvious that if the evidence is not accepted it will have no probative force at all. By admitting evidence as similar fact evidence the judge is not to be held as having accepted that the evidence is true. That is properly a matter for the jury if the judge decides that the evidence should properly be admissible before them."
The same position was adopted in R. v. Best in relation to s.398A.[81]
"One of the submissions ... advanced ... was that defence counsel had one hand tied behind his back because the argument in favour of concoction or unconscious influence derived from the publicity when the applicant stood trial in 1996. He was acquitted on four sets of those allegations and convicted on one, for which he was sentenced to a wholly suspended sentence of imprisonment. ... The rubric under which this submission would fall to be considered is unfairness arising from inability to test the reliability of the evidence, in the sense in which I have used that word in this judgment, once the evidence is before the jury. Compare Rozenes v. Beljajev, especially at 548-9 and 556-7."
"3. The learned trial judge failed to direct the jury and misdirected the jury as to the use they could make of propensity evidence in particular by: (i) referring to the existence of similar features in respect of offences alleged by different complainants; (ii) failing to direct the jury as to the meaning of collusion; (iii) failing to direct the jury they had to be satisfied beyond reasonable doubt that there was no possibility of collusion before they could use propensity evidence as part of their reasoning; (iv) failing to comment on the cogency of the propensity evidence and the defence argument as to collusion."
"In the present case, in addition to a separate consideration direction, the jury should have been told that it was permissible for the prosecution to identify points of similarity or a pattern of conduct or system (cf. B.R.S. v. R.[94] at 300 per Gaudron, J.) in the allegations made by the five complainants and to argue that it was improbable that five men would make those allegations unless they were true, but the jury should have been warned that, if they concluded that the applicant had sexually assaulted one or more of the complainants, they were not to reason from that conclusion that he was the kind of man who was likely to have assaulted the others. As in R. v. Grech[95] at 614, that is not intended as a model direction but as a guide to the substance of what was required."
"9. The learned trial judge failed to adequately put the defence case in her summing up."
was said to be dependent on ground 3 and to stand or fall with it.
"12. The learned trial judge erred in admitting evidence which only showed the applicant as having a propensity to commit sexual offences."
"4. The learned trial judge failed to properly direct the jury in accordance with Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79."
"5. The learned trial judge failed to properly direct the jury in accordance with Kilby v. R. [1973] HCA 30; (1973) 129 C.L.R. 460. 6. The learned trial judge failed to properly direct the jury as to the evidence of recent complaint."
"(3) Despite sub-section (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which sub-section (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial."
"So, those are the contextual matters and some of them that spring to mind that you would consider when you are looking at what is the significance of the fact that they have not complained, and you must approach it from the perspective of the young boy in question at the time, not looking back on it now from your own perspective."
Counsel submitted that the words in italics were erroneous, but I do not think that they were. On the contrary, it was entirely appropriate to warn the jury against assessing delay in complaining as if the alleged victim had been an adult like the jurors themselves but rather to consider the question as it would have presented itself to the child in question.
For these reasons, I would not uphold either of grounds 5 and 6.
"7. The learned trial judge erred in admitting hearsay evidence to explain the failure of the prosecution to call relevant witnesses. 8. The learned trial judge failed to properly direct the jury in accordance with Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298.
...
11. The learned trial judge erred in failing to discharge the jury as a result of adverse media publicity during the trial."
Grounds 10 and 11 are the same as grounds 10 and 12 in relation to the first trial. It was not suggested that there was any material difference between the facts pertaining to ground 10 in relation to the first trial and the facts pertaining to that ground in relation to the second. Accordingly that ground fails for the reasons previously given. No argument was directed to ground 11. As argued in relation to the first trial, it applied only to the evidence of Stephen Eyles, who was not a witness at the second trial. The grounds that need to be considered are therefore grounds 1 to 6, 12 and 13.
"Now, of course you would have to be satisfied beyond reasonable doubt that there was no collusion between any one of these five complainants before you could use the reasoning that the Crown submit is part of your assessment that I have just gone through with you. That has no force at all unless you are satisfied that these complainants did not get together and concoct these allegations or have any contact which led to them fabricating or making allegations together. If you find there was no collusion or concoction between the five complainants then you are entitled to use the reasoning as I have simply directed you upon in relation to each case of each complainant."
That direction discloses no error so far as collusion is concerned.
"In addition, quite apart from any such comment, there is a direction that the judge should give at a trial where collusion is raised as an issue. The jury should be told, with the full authority of the judge's office, that they must be satisfied that there was no collusion before they use disputed similar fact evidence as part of their reasoning. (The same applies to any other factor, such as unconscious influence or contamination by media publicity, that would affect the argument which gives such evidence its probative force.) Cases on the standard of proof of circumstantial evidence are referred to later in this judgment, but it will usually be wise to tell the jury that they must be so satisfied beyond reasonable doubt. That accords with the practice in England (see R. v. H.[117] at 602B) and is obviously conducive to justice." (Emphasis added.)
There is a summary in point form at 616. Point 4 reads:
"4. Where collusion, unconscious influence or the like is raised as an issue, the judge should direct the jury that they must be satisfied beyond reasonable doubt that no such factor was operating before they use disputed similar fact evidence as part of their reasoning. That is in addition to any comment the judge may choose to make, subject to s.61(3) in cases to which it applies." (Emphasis added.)
"Now the defence here, as you have heard, suggest that you should not undertake utilising this aspect of assessment of the evidence because you could not be satisfied that there was not collusion, that is complainants getting together and making up stories, at least between three of these complainants, that is the two DV brothers and CR. The defence rely on the evidence that these three persons did know each other at the relevant time and that they have had some contact kept up at least afterwards through LDV's contact with [CR's sister], and you will recall the evidence in relation to that aspect. The defence say that you should reject the evidence of RDV and SDV and LDV, that they did not discuss their allegations, and you should conclude that in fact they not only discussed them but they concocted them with a view to compensation. The defence also say that CR's denial of discussing the allegations with any of the DVs should not be accepted and rely upon the evidence of [CR's sister], and her contact with LDV in some way as supporting the contention that there was ongoing contact which would have allowed knowledge of the DVs's allegations to have been conveyed to CR. There is clearly no evidence of that and CR denies that aspect, but the defence say that you should simply not accept that denial and that if you do not accept it then you cannot say, well, here we have three independent people making similar allegations because it is tainted." (Emphasis added.)
I have substituted initials for the names of complainants and LDV.
"The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s). I use the words 'a cause common to the witnesses' to include not only (as in Rex v. Sims [1946] K.B. 531) the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility: something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed."
The reference to "striking similarity" must now be read in the light of cases like Director of Public Prosecutions v. P. It is the explanation of "a cause common to the witnesses" in the second paragraph that is presently relevant.
"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.)
"You have heard that there was media publicity about allegations levelled at the accused. That is not evidence that those allegations were true. The media publicity is completely irrelevant except for the possibility, as the defence contends, that it influenced the complainants and explains what the Crown says are the similarities between their accounts. You must be satisfied beyond reasonable doubt that media publicity was not the explanation for those similarities and that the complainants' allegations are truly independent of each other before you use the kind of reasoning that I have just described."
The last words assume that that direction would come immediately after the explanation of probability reasoning.[123]
"12. The learned trial judge erred in admitting evidence of 'change of behaviour'. 13. The learned trial judge erred in refusing to allow cross-examination as to delay in making complaint."
"[This evidence] cannot help you reach conclusions in relation to whether or not the allegations are in fact true. It does not go to the fact of the truth. All you could do is conclude that it was consistent with the events occurring. It may be that you simply cannot use it to reach this conclusion at all. It may be that you find that that evidence is inconclusive to the extent where it does not assist you in reaching a conclusion that it is consistent or inconsistent, that it, in effect, does not assist you, and if that is so, you simply put it to one side, but what you cannot do is utilise it in forming any conclusions as to the truth of the allegations themselves."
[1] See Hinch v. Attorney-General (Vic.) [1987] HCA 56; (1987) 164 C.L.R. 15.
[2] R. v. Glennon [1992] HCA 16; (1992) 173 C.L.R. 592.
[3] R. v. Glennon [1993] VicRp 6; [1993] 1 V.R. 97.
[4] Glennon v. R. [1991] HCA 56; (1994) 174 C.L.R. 1.
[5] cf. R. v. Best [1998] 4 V.R. 603 at 619 per Callaway, J.A.
[8] Consisting of Brennan, Dawson and Toohey, JJ.
[9] [1989] HCA 60; (1989) 168 C.L.R. 79. See the analysis of this case and subsequent authorities below at paras [85] to [91]
[13] [1999] VSCA 150; [1999] 3 V.R. 113 at 140-141.
[15] See also below at paras [90]-[91].
[16] See Crofts; Jones v. The Queen (1997) 191 C.L.R. 439; Robinson v. The Queen [1999] HCA 42; (1999) 73 A.L.J.R. 1314 and Crampton, although the last case had not been decided at the time of trial.
[18] or any other danger which would not be apparent to the jury : cf. R. v. Miletic [1997] 1 V.R. 593.
[20] See also now Crampton at p.156, para [126] and p.158, para [140].
[21] The problems are adverted to in Cross on Evidence (Aust. looseleaf Edition), Vol.1 at [1220].
[26] (1997) 45 N.S.W.L.R. 744 at 753.
[28] [2000] NSWCCA 187; (2000) 112 A.Crim.R. 543 at 548-9.
[29] [2000] VSCA 163, at [18].
[30] Unreported, Supreme Court of Victoria, 25 July 1990.
[31] Glennon v. R. [1992] HCA 16; (1992) 173 C.L.R. 592.
[32] cf. Tuckiar v. The King [1934] HCA 49; (1934) 52 C.L.R. 335.
[33] cf. R. v. Davis [1995] FCA 1321; (1995) 81 A.Crim.R. 156 at 165.
[35] [1989] HCA 46; (1989) 168 C.L.R. 23 at 47.
[36] Murphy [1989] HCA 28; (1989) 167 C.L.R. 94)
[37] Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 C.L.R. 25.
[38] McInnes [1979] HCA 65; (1979) 143 C.L.R. 575; McPherson [1981] HCA 46; (1981) 147 C.L.R. 512.
[41] Cf: R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 855; Crofts at 440.
[42] Murphy v. R. [1989] HCA 28; (1989) 167 C.L.R. 94 at 101.
[43] Cf. Hoch v. R. [1988] HCA 50; (1988) 165 C.L.R. 292.
[44] She had already dealt with one witness's convictions and the effect of delay in making complaint.
[45] As there was in the first trial, although counsel for the applicant did not concede that there was any such evidence in either trial.
[47] The similar but not identical counterpart of s.61 of the Crimes Act of this State.
[48] At 140 para.[39] per Gaudron, Gummow and Callinan, JJ.; at 156 paras.[125]-[126] per Kirby, J. and at 159 para.[142] per Hayne, J.
[50] There were in fact two counts upon which the appellant had been convicted, one occurring between February 1962 and February 1963 and the other occurring between February 1966 and February 1967.
[51] The whole of this passage, together with some sentences both before and after it, was cited with approval by Gaudron, Gummow and Callinan, JJ. in Crampton at p.140 para.[39].
[52] See Crofts esp. at 446; Jones esp. at 445-446; Robinson and Crampton.
[53] See Miletic at 604-606; R. v. Young [1998] 1 V.R. 402 at 408-409; R. v. Hyatt [1998] 4 V.R. 182 at 189-191; R. v. Robertson [1998] 4 V.R. 30 at 35; R. v. Jolly [1998] 4 V.R. 495 at 496-497 and 502; and Mazzolini, although the application was, by majority, dismissed in the latter case.
[54] As it was most correctly expressed by Hayne, J. in Crampton at 158 para.[140]. In many cases, and in the course of argument before this Court, there has frequently been reference to the delay between the offence and "the complaint", but although more often than not it is the complaint which leads to the allegation being brought to the accused's attention (cf. Crampton at 156 [124]), the difficult situation in which an accused is placed, as is described in Longman and the many subsequent cases which followed it, is that faced by the accused in recalling events, in finding relevant witnesses and generally in fighting a case where the evidence relates to stale events. The relevant difficulties do not arise out of mere delay in complaint and separate considerations must be brought to bear in giving directions on that subject, including the statutory requirement in s.61 of the Crimes Act as to informing the jury that there may be good reasons for delay in making complaint: see e.g. Crofts; Miletic and Mazzolini. Some of the difficulties in the reported cases have arisen because of judges' trying to balance the requirements of the latter provision against the principle in Longman, so that it would be better if the word "complaint" was not used at all in directions relating to the effects of delay and, possibly preferably, if the judge were to make clear that the Longman warning arises primarily out of forensic unfairness.
[56] i.e. those relating to "potential danger" etc.
[59] Counsel also, disturbingly in our opinion, sought to justify the words used in this charge by reference to the number of acquittals said to be recorded in the County Court for these kinds of offences. Clearly laid down principle cannot be ignored on this ground in lower courts. It is an argument available only in the High Court.
[60] See, e.g. per Hayne, J. at 159 para.[142]. Cf. per Gaudron, Gummow and Callinan, JJ. at 141 paras.[44]-[45].
[61] Longman at 91, Crampton at 140 para.[39].
[62] But, as we have concluded, the use of the word "potential" effectively negated any real significance in the use of that word.
[65] There will nevertheless be some cases where it will not be possible, by directions, to secure a fair trial: see R. v. Christou [1997] A.C. 117 at 129E; R. v. TJB at 629 line 42-630 line 4 and R. v. KRA at [23].
[66] R. v. TJB at 626 lines 46-50; R. v. GAE [2000] VSCA 18; (2000) 1 V.R. 198 at [17], [45], [53]-[54].
[67] R. v. Best [1998] 4 V.R. 603 at 606.
[69] Some of the counts in relation to PMD were alternatives too. The applicant was convicted on counts 1-5, 9 and 11-28.
[70] The learned prosecutor at the trial said that this was not a case of similar fact evidence. It is, in the sense in which that expression was used in R. v. Best. The prosecutor probably meant that this was not an identity case. See R. v. Mitchell [2000] VSCA 54; (2000) 112 A.Crim.R. 315.
[73] [1991] 2 A.C. 447 especially at 460E and 462D.
[75] As printed in the authorized reports, but the sense requires a comma.
78] See R. v. GAE at [1] and [18].
[79] This celebrated metaphor comes from Wittgenstein's Philosophical Investigations (3rd ed. 1967) at ss67-68. Wittgenstein was speaking of language and we are concerned with facts but, in an appropriate case, the metaphor may still be helpful in discerning the required relationship between similar fact evidence or some aspect of it. The offences do not have to be the same.
[80] [1995] 2 A.C. 596 at 604H-605A.
[81] [1998] 4 V.R. 603 at 607 lines 21-26 and 610 lines 44 -51. R. v. Cogley [1999] VSCA 123; [1999] 3 V.R. 366 is to be understood on the footing that the facts were assimilated to those of an identity case, like R. v. Tektonopoulos.
[84] The meaning of "prejudicial effect" in s.398A(2) is a question of statutory construction, to be answered by reference to the context in which the word appears. I express no opinion on the difference between "prejudice" and "unfairness" in other contexts. It would be undesirable to complicate a trial judge's task by invoking some questions of fairness separately from others when the admissibility of propensity evidence has to be decided and there is no reason to think that that is what Parliament intended.
[85] A firm of solicitors had, for example, placed an advertisement naming the applicant and mentioning that he was the former priest of St Monica's Church, Moonee Ponds who was now "in jail for sexual offences". The advertisement sought information from victims and any person who had complained to the Church.
[86] R. v. TJB at 631 lines 47-49 and 632 lines 10-12; R. v. Tektonopoulos at [27].
[87] R. v. Christie [1914] A.C. 545.
[88] R. v. Loguancio ([2000] VSCA 33; 2000) 1 V.R. 235 at [22].
[90] An argument that 65 separate trials would entail all the evidence being given 65 times would not be realistic, even if similar fact evidence from 64 other witnesses would still satisfy the criterion in s.398A(2), which is, to say the least, doubtful.
[91] R. v. Best at 611 and 616 point 4. No such direction is needed where it is not raised as an issue and mere knowledge of each other's allegations or awareness of publicity is not, in itself, the test. The question is whether such knowledge or awareness may have affected the complainants, i.e. whether it may be the explanation for the similarity of their allegations. See also [[] below.
92] R. v. Best at 609-610 and the cases there cited; R. v. Standley (1996) 90 A.Crim.R. 67 at 69; R. v. Thorpe (No. 2) [1999] VSCA 172; [1999] 2 V.R. 719 at [16] point 3 and R. v. Puckeridge [1999] HCA 68; (1999) 74 A.L.J.R. 373 at [11].
[96] Compare R. v. Beserick (1993) 30 N.S.W.L.R. 510 at 515G-516C.
[97] Exception was taken to this part of the charge but not in these respects.
[98] Compare R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355 at [1]- [2] and [16]-[20] and R. v. Williamson [2000] VSCA 5; (2000) 1 V.R. 58 at [77].
[99] Krakouer v. R. [1998] HCA 43; (1998) 194 C.L.R. 202 at 213 fn. 23. Accordingly the proviso to s.568(1) of the Crimes Act would apply.
[100] It is convenient to use this label in relation to any direction of the general kind described in Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79.
[101] R. v. Miletic [1997] 1 V.R. 593 at 604-606; Melbourne v. R. [1999] HCA 32; (1999) 198 C.L.R. 1 at [144].
[102] Compare R. v. Yates [1970] S.A.S.R. 302 at 306.
[103] [2000] 75 A.L.J.R. 133, especially at [42]-[45], [125]-[132] and [142]-[143]. Compare R. v. Mazzolini [1999] VSCA 150; [1999] 3 V.R. 113.
[104] Such evidence is usually called evidence of "recent complaint", but it is not admissible because the complaint was made recently. On the contrary, it is admissible only if the complaint was made proximately to the alleged offence.
[105] See, for example, R. v. Matthews [1998] VSCA 2; [1999] 1 V.R. 534 and the cases there cited.
[106] [1973] HCA 30; (1973) 129 C.L.R. 460 at 469 and 472.
[107] See, for example, Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 and R. v. Hewitt [1998] 4 V.R. 862 and the authorities to which they refer.
[108] R. v. TJB at 634 and the cases there cited; R. v. JMS [1998] VSCA 19 at [7].
[109] See R. v. Murray (1987) 11 N.S.W.L.R. 12 at 16-17 and Crofts v. R. at 448.
115] As we shall see, the argument corresponding to that in [[] above was that RDV, SDV and CR constituted a single source. It stands or falls with the question of unconscious influence and innocent infection discussed below.
116] See fn. [ and the accompanying text.
119] [1975] A.C. 421 at 444.
[120] [1988] HCA 50; (1988) 165 C.L.R. 292 at 300.
[121] Even if counsel did not go so far as unconscious influence, he certainly put his case to the jury and his exception on a wider basis than that explained and accepted by the judge, quite apart from the question of innocent infection from media publicity, which is a separate issue.
[122] I refrain from formally deciding whether her evidence was inadmissible, as failing to satisfy the test in s.398A(2), but I think that it probably was.
[125] Whether the conviction would stand would depend on the quality of the evidence as a whole. I have in mind a case where several victims of sexual assaults, in an endeavour to ensure that the perpetrator is convicted, get together and harmonize their accounts. In an appropriate case a jury might think that they had collaborated but nevertheless that they had been assaulted and that the substance of the individual accounts of one or more of them was true.
[126] There was no question of re-establishing their credit as in R. v. J [No. 1] (1994) 75 A.Crim.R. 522.
[127] I do not overlook the sentence of nine years' imprisonment imposed in 1991, of which the applicant served six years because of the system of remissions then in force. (To take the latter fact into account, retrospectantly, does not offend s.5(2AA)(a) of the Sentencing Act 1991.) At the hearing of the application reference was made to a 1978 sentence too. Her Honour was not asked to take it into account and, in my opinion, no error was made in that regard.
[128] No separate argument was directed to the non-parole period of 12½ years fixed by the judge but, if the convictions sustained by the applicant at the second trial are quashed, a new non-parole period must be fixed in relation to the sentences imposed at the first trial.
R
Glennon [2001] VSCA 17