R v JMS [1998] VSCA 19

5. It will be apparent from what I have said that the trial resulted in a conviction. In fact the uncle was convicted on all 11 counts charging an indecent assault. He was acquitted of rape but convicted of attempted rape. He was given a total effective sentence of 4 years 6 months' imprisonment with a non-parole period of 2 years 6 months.

8. Now he wishes to appeal against conviction. Until quite recently, he wished also to appeal against sentence.

11. The grounds of appeal against conviction as amended are six in number. Ground 2 - that the verdict was unsafe and unsatisfactory - was not separately argued and need not be further mentioned. Three of the remaining five grounds can be dealt with briefly, as indeed they were by Mr Holdenson in the course of his succinct and realistic submission on the applicant's behalf.

14. Ground 3 is that the judge should have held to be inadmissible Question 319 in the applicant's record of interview and the answer to it:

"Can you offer any reason that she would make these allegations if they're not true? I can only guess what it is. Because I couldn't tell you. You'll have to ask her, I think, why she is - I better not guess something, you know - I can guess so many things which is - I wouldn't know what ...".

Mr Holdenson accepted that it was fair and proper for the investigating police to put that question to the applicant in the course of their investigation. But he submitted, in reliance in particular upon Palmer v. R. [1998] HCA 2; (1998) 151 A.L.R. 16, that the question and answer ought not to have been received in evidence. But the fact of the matter is that Queen's Counsel appearing for the applicant at the trial - a most experienced member of the criminal Bar - while causing the record of interview to be "edited", took no objection to the question and answer which are now said to have brought the trial down. Ground 3 is quite insupportable. No attempt to keep the evidence out was made by experienced counsel, who presumably either thought that the matter was of no importance or considered that the answer was one which it was in his client's interests should go before the jury. A forensic decision may well have been taken that statements like "You'll have to ask her" and "I can guess so many things" would assist the applicant, as the apparently candid answers of a man faced with surprising allegations, and perhaps as answers which suggested that the complainant might have a motive to misrepresent. The view might also have been taken that this particular answer contrasted favourably with the remainder of the record of interview (which was notable for the absence of the human reactions of surprise and indignation) by suggesting a man genuinely searching his mind for some explanation.

19. In any event, the applicant was not cross-examined about this question and answer - he declined to give evidence - and no mention was made of it by the Crown prosecutor in her address. The judge made no mention of the matter in his charge. It should in addition be noted that, as his Honour recorded in his charge, the defence went to the jury on the basis that the complainant did have a motive to make false allegations in that she was attempting to explain difficulties which she was encountering in her relationships with other young women. Having mentioned this argument his Honour added, "There is, of course, no onus on the defence to prove the existence of a motive or, indeed, to prove anything during the course of this trial."

22. Grounds 4 and 5, which may be considered together, also lack substance. It is said that the judge did not go far enough when he told the jury that a complainant's failure to make a timely complaint might adversely reflect on her credibility. I do not intend to set out precisely what the judge said on this point. Mr Holdenson accepted that these grounds faced serious difficulties. In my opinion what the judge said was, to say the least, entirely adequate and fair to the applicant. Rather belatedly, the law has come to recognise that persons, and in particular young persons, subjected to sexual abuse, especially by members of the family or persons standing in a similar position, are not to be treated like mature businessmen or women, whose failure to complain about some supposed breach of contract or other legal wrong may readily be viewed in a given case as very seriously detracting from their credibility. "Why didn't you complain about this?" can often be a fatal question in a commercial dispute, but sense and sensibility are required with sexual offences. Victims of sexual abuse are not like merchants, whose earlier silence may condemn them when they belatedly complain about the quality of goods they have not paid for. The charge should reflect this. Important in this regard is what was said by Callaway, J.A. in R. v. Bullen (unreported, Court of Appeal, 23 July 1998) at pp.18-20 of his judgment. I shall not summarise what is there said, but it is very pertinent to the present case.

25. In my opinion the applicant has no reason to complain of what was said or not said in the charge on the subject of complaints. It is significant that no exception was taken by his counsel on this or, indeed, any other ground.

28. That leaves for consideration grounds 1 and 6, the only grounds in support of which any extensive argument was offered. These challenge the judge's ruling that evidence which the defence desired to elicit from a forensic psychologist, Dr Byrne, was inadmissible.

31. Counsel for the applicant referred his Honour to the decision of the Court of Appeal in R. v. Bartlett [1996] VICSC 47; [1996] 2 V.R. 687 and the unreported decision of the Court of Criminal Appeal in R. v. Thorne (9 June 1995), which was mentioned in Bartlett. Counsel said that, because the jury was going to be required to consider questions of repressed memory and recovered memory, he desired to call an expert witness to give evidence on the reliability of recovered memory. Having taken the evidence of Dr Byrne on the voir dire, and heard argument, his Honour ruled that the present case simply was not one of repressed and recovered memory and that the evidence was inadmissible. I am in agreement with his Honour's ruling on this point.

34. The fact is that on the evidence led the case had nothing to do with "repressed" and "recovered" memory in the sense in which those terms are used by psychologists and psychiatrists. Counsel appearing for the applicant at the trial made strenuous efforts to turn the case into one of repressed and recovered memory, no doubt with a view to being able to call expert evidence concerning the unreliability of recovered memory, but these efforts failed. A repressed memory, to a psychiatrist or psychologist, is one which is repressed in the sense that some traumatic event completely leaves the victim's consciousness from the moment of the event until some years later, when some other traumatic event, or psychotherapy, experienced by the victim, causes the memory of the original traumatic incident to be recovered. The episode has been completely removed from the consciousness and must later be revived. Dr Byrne said that he was of the school of thought which entertained considerable doubt about the existence of the phenomenon.

37. Mr Holdenson made a lengthy examination of the evidence of the complainant, together with a small amount of other evidence, in an attempt to demonstrate that the case was in truth one, or was capable of being viewed by the jury as one, of the recovery of a repressed memory in the technical sense. I have given careful consideration to all his submissions, but I do not find it necessary to summarise the evidence which he traversed. I will content myself with saying that, having considered the whole of the evidence said by Mr Holdenson to bear upon the point, I am of the view that the present case was not one of repressed memory in the technical sense and that it was not open to a reasonable jury to consider that it was or might have been. Notwithstanding counsel's attempts to establish, in the course of the evidence, that the complainant, if she was to be regarded as honest, really afforded an example of the supposed repressed and recovered memory in the technical sense, I think it clear that all that the complainant was saying, when her evidence is fairly read, was that she had always remembered the sexual assaults on her by her uncle but that she had, for some years (evidently until about 1989, when she was about 25) pushed those traumatic experiences into the back of her mind and not thought about them, in the way in which, as every jury knows, we all on occasions do with unpleasant experiences. It is clear that, in using, as she evidently had, on the first, aborted trial of the applicant, the word "repressed" to describe her memory, she had intended to convey only that she had tried to put the events out of her mind.

40. It is also clear that, when she said that she had had "flashbacks", she was saying, not that a memory that she had never previously experienced had in some way been triggered, but only that, having always been aware of the abuse, she on occasions relived given incidents in her mind's eye.

43. Unsuccessful attempts were made to show that she had undergone psychotherapy or had otherwise been subjected to counselling or suggestions calculated or intended to assist her in "recovering" memories that had been "repressed". The only evidence with regard to any form of therapy or counselling was that on one occasion, in a year which she could not recall, she "saw" a person whom she described as a "counsellor". Nothing was said about the qualifications or experience of, or the position (if any) held by, the counsellor, and there was no evidence, even of the most general kind, of what was said by or to the counsellor.

46. An unsuccessful attempt was made by the defence to show that the complainant had read a book written by a psychologist or psychiatrist and dealing with sexual abuse. The title was variously given by cross-examining counsel as "Courage to Heal", "The Courage to Heal" and "A Courage to Heal". Even if this attempt had succeeded, it would for present purposes have got the applicant nowhere; but it failed. There was no evidence that the book in question was written by a psychiatrist or a psychologist. The complainant said that she had bought the book some years before the trial, and from the evidence of Ms Gennari it was open to the jury to say that the year was 1994. It is, I think, just possible to say that a finding was open that the subject matter of the book was sexual abuse, but what qualifications (if any) its author had and in what way it dealt with sexual abuse remain unknown. All that we do know is that the complainant said that the only part of the book which she read was that which dealt with the effect on parents, by which (I am disposed to think) it sufficiently appears she meant the effect on parents of a disclosure that some other person had sexually abused their child. This brings the applicant no further forward.

49. As the judge observed, in holding the evidence of Dr Byrne to be inadmissible, the present case bears no comparison with Thorne or Bartlett. In Thorne the complainant had been treated over a six-month period by a psychiatrist, who told her that events which had occurred in the past could cause problems in the present. She said that she had seen a psychologist for about 10 months and that the treatment which she had received had filled in details of some incidents, some of which she had forgotten. She said that part of the treatment had involved putting herself in the position of the child and remembering the feelings she had at the time. She described the process she adopted in counselling of "listening to the inner child" as "getting in touch with feelings of how it felt to be 8 or 10 ... and being sexually abused". She had been counselled by a "community counsellor" for about 20 months. The process of "getting in touch with the inner child" had continued during this period. She had interested herself in the subject of sexual abuse and had reviewed books on that subject and organised a seminar on it. She said that she had had "flashbacks", which to her were memories. She maintained throughout her evidence that she had always known that she had been abused. She said that it was as a result of "flashbacks" that she had been enabled to remember the incidents involving the penile penetration and ejaculation on the face. She admitted that she had not always remembered those incidents.

52. In Bartlett the complainant had received counselling and therapy for several months and said that her memory of the relevant events had been revived during the counselling sessions, when they came to her in the form of "flashbacks". Some of these memories were events of which she had previously had no memory.

55. The trial judge was, then, right in excluding the evidence on the ground that expert evidence about the supposed phenomenon of repressed memory, and the unreliability of recovered memory, was of no relevance in a case which could not be regarded by the jury as one of repressed memory. But there were other difficulties. At the end of the voir dire counsel for the applicant made it clear that the evidence which he was to be taken as tendering for the purposes of the ruling on admissibility was the whole of the evidence elicited by him, by which I would take him to refer to the whole of the evidence in chief and the whole of the re-examination. That evidence was objectionable for reasons other than the main one, with which I have been dealing. In a case to which the learned judge referred, R. v. J. (1994) 75 A.Crim.R. 522, I stressed the need to bear in mind the rule - as old as the modern law of evidence itself - that an expert witness must identify the facts assumed as the basis of his opinion. This was not done in the present case. Dr Byrne had not heard any of the evidence given on the trial. He said that he had been given six statements made by the complainant to the police. None of these statements was in evidence before the jury, nor was it proposed by the applicant to put any of them in evidence: their general effect would have been damaging to him. The only way in which the jury had been apprised, to some extent, of what was in some of them was the result of cross-examination of the complainant in an attempt to show prior inconsistent statements.

58. Then Dr Byrne said that he had been supplied with part of the transcript of the current trial. This contained the whole of the evidence of the complainant except, for some unexplained reason, two pages of her cross-examination. Dr Byrne was also given part of the transcript of the first trial. Again this was not before the jury on the second trial except to the extent to which passages were put to the complainant in an attempt to show the making of prior inconsistent statements. It seems that the witness was given the transcript of the whole of the complainant's cross-examination on the first trial with the exception of one missing page and the transcript of her re-examination. He was not supplied with any of her evidence-in-chief.

61. It was of course not in accordance with proper practice for the witness to be given - presumably to assist him in forming an opinion - large quantities of documentary material which were not, and were not to be, before the jury. Moreover the selection of material seems to have been on any view haphazard.

64. Other criticisms might be made. I take examples. The following evidence was given:

"Is it possible for counselling or therapy to affect a memory?

---Absolutely. When a person goes to a counsellor, no matter how skilled the counsellor, the counsellor invariably makes some suggestions to the patient and in the transaction between the patient and the therapist, it is very easy for suggestions to be made and for the patient's memory to be altered."

68. In a case in which there was no evidence whatever of what the counsellor had said to the complainant - for all the jury knew, there might have been nothing remotely resembling "therapy" and nothing more than the giving of one or two pieces of practical advice - it would have been quite mischievous and misleading for the jury to hear testimony from an expert which might well have suggested to a lay person that on the evidence the complainant had received therapy which had tended to alter her memory.

"In this case a number of suggestions have been put to the witness L. One is that she read a book called, 'The Courage to Heal'?---Yes. Are you familiar with that book?---Yes, I am. Has any research been done on that book?---There's no objective research that I know of - it's(?) been the subject of considerable professional debate in writing, that is writing about the book. It's also been put to her that it was suggested to her that she was abused and that may have planted the seed by lovers, or people that she's in relationships with?---That too can potentially affect memory. Another suggestion was that she has transposed the - we know that her father sexually assaulted her and I believe you'd have read that in the statements that she made?---Yes. It was put to her that she used the same words to describe experiences and may have transposed one to the other; is this an unknown or a known experience?---No, this has been described by one of the experts on memory as being quite possible that in recalling a memory that the - the actors, if you like, can be interchanged in the person's mind without the person trying to do so, and without being aware that they did so."

75. The references here to what had been suggested or put to the complainant are references to questions put in cross-examination; they fall foul of the elementary rule that the evidence is to be found not in the question but in the answer. All this was mischievous as calculated to give the jury the false impression that there was evidence (as opposed to the suggestions of counsel) that some third persons had suggested to her that she had been abused and that this had "planted the seed" of the memory, and that it had been admitted by the complainant that she had confused one assailant with another. The reference in this evidence to the book is nothing more than an undesirable distraction.

78. I do not set out the evidence, but in my opinion, in a passage at pp.227-8 of the transcript, the expert witness fell into the error, when certain evidence of the complainant was put to him, of first misstating the effect of that evidence and then commenting on her evidence on the assumption that it was to the effect that he had mentioned. In addition, in both this and the immediately following passage the witness is really telling the jury that in his opinion particular evidence of the complainant is a reconstruction.

81. More examples might be given, but it is enough to say that as at present advised I consider that none of the evidence sought to be elicited from Dr Byrne was admissible, but that, if it was possible to pluck from the whole of it some few admissible passages, it was not the role of the judge, when the evidence was presented to him on an "all or nothing" basis, to attempt the winnow the chaff from the grain.

84. So much for the convictions, which are impregnable. The sentence application now presents no difficulties. At the end of his long and careful reasons for sentence his Honour, as the Crown and the applicant now accept, made a slip in pronouncing orders for cumulation and concurrency which did not give effect to his manifest intention to pass a total effective sentence of 4 years 6 months' imprisonment with a non-parole period of 2 years 6 months. We should rectify this.

On the plea, the judge was asked by the Crown to treat the applicant as a serious sexual offender within the meaning of the Sentencing Act for purposes of counts 3-12. Counsel then appearing for the applicant did not demur. The amended grounds of appeal challenge the judge's determination on this point. We have found it unnecessary to hear argument about this, since at an early stage we intimated to Mr Holdenson our provisional view that, even if the judge had erred in the respect suggested, the sentence passed was, especially as regards the non-parole period, to say the least, merciful. Having taken instructions, Mr Holdenson intimated that the applicant wished to abandon his application for leave to appeal against sentence. I would accordingly propose that, in addition to dismissing the application for leave to appeal against conviction, the Court should dispose of the application for leave to appeal against sentence by allowing it solely for the purpose of correcting the orders made for concurrency and cumulation. I propose that the application for leave to appeal against sentence be allowed and the appeal be treated as instituted and heard instanter and allowed solely for the purpose of substituting for the orders for cumulation and concurrency made below an order that six months of the sentence on count 11 and six months of the sentence on count 12 be served cumulatively upon each other and upon the sentence imposed on count 7, thus producing a total effective sentence of 4 years 6 months' imprisonment, as the judge obviously intended. The result will be that the total effective sentence of 4 years 6 months and the non-parole period of 2 years 6 months mentioned in the reasons for sentence, the endorsement on the presentment and the quadruplicate will remain unaltered, the appeal having succeeded only for the purpose of correcting the ancillary orders about cumulation and concurrency.

91. I have had the benefit of reading in draft the reasons prepared by Brooking, J.A. with which I am in entire agreement.

97. I have had the advantage of reading the draft reasons for judgment of Brooking, J.A. I agree that the application for leave to appeal against conviction should be dismissed for the reasons stated by his Honour. I also agree with his Honour's proposed disposition of the application for leave to appeal against sentence.