R v K J [2005] VSCA 153

R v K J [2005] VSCA 153 - VSCA 2005 case summary — Zoe

[5]

4 I agree with the judgment of my brother Osborn that the application and the appeal against conviction should be allowed and for the reasons which he has stated. I wish only to add the following.

5 The authorities make it clear that a Longman warning should not be understood as the product of any undue tenderness for accused persons or from any suspicion that complainants or, indeed, any class of witnesses are or may be inherently unreliable. It is part of a concession accorded to the prosecution and that very old cases might be permitted to go to trial[1] rather than be stayed for fear that the lapse of time might cause injustice to the accused.[2] It is a warning which is quite separate from the comment or warning which may be directed to the impact of the

passage of time upon the recollection of the complainant and other prosecution witnesses or the inference which the jury might draw from the delay of the complainant in bringing the allegation forward.[3]

6 In summary, the warning must satisfy certain requirements:

(1) It must be, not a mere comment, but a warning couched in firm and unmistakable terms;[4]

(2) It must be made clear to the jury that it is a warning which carries the authority of the judge;

(3) It must be made clear to the jury that the need for the warning arises from the long experience of the law in cases of this kind;

(4) It must identify the particular matters in the case which, by reason of the delay, have left the accused at a disadvantage at the trial and therefore risk causing an injustice;[5]

(5) It must make plain to the jury that, by reason of this disadvantage, it would be dangerous or unsafe to convict the accused on the complainant's evidence alone, unless, having scrutinised the evidence with great care, considering the matters relevant to its evaluation, and paying heed to the warning, the jury is convinced of the truth and accuracy of that evidence.[6]

7 It is clear from cases such as EO [7] that this warning must be tailored to meet the requirements of the case and that its terms and manner of presentation may vary depending upon the circumstances. Nevertheless, having searched the charge in this case to see whether the essential features of this warning are to be found, I regret that, essentially for the reasons set out by my brother Osborn, I, too, have been

unable to conclude that the terms and manner in which the trial judge presented the warning to the jury meet these requirements.

8 Accordingly, I would allow the application and the appeal against the conviction.

[6]

9 The applicant is a 55 year old man who seeks leave to appeal convictions and sentence in the County Court at Bendigo on three counts of indecent assault, one count of carnal knowledge and one count of incest.

10 The alleged victim in each case was the applicant's daughter D who was aged 6 at the time of the first alleged incident. The Crown case was that the first two indecent assaults occurred at Kerang in 1977 and 1978. The third indecent assault occurred at Marlo during a three day period at the end of August 1980, the carnal knowledge occurred during the same period and the incest occurred in the early months of 1983.

11 The application for leave to appeal against conviction is directed to two matters. The first is the learned trial judge's direction concerning the applicant's record of interview and the second is the adequacy of the Longman[8] warning given by him.

12 The prosecution called three witnesses at the trial, the complainant D, her mother (the former wife of the applicant), and the informant.

13 D, who was aged 33 years at the time of the trial, gave direct evidence of the incidents giving rise to the charges, including evidence of specific circumstances associated with them. These circumstances were of significance to the Crown case

because they enabled it to put to the jury that it was unlikely an account containing such incidental detail was falsified. Further, a number of the surrounding circumstances in issue were corroborated by the evidence of D's mother. The circumstantial quality of D's evidence was specifically referred to at three points in the judge's charge. First it was referred to when he directed the jury that in assessing a witness they might ask themselves whether or not the evidence of a particular witness is in accord with the 'probabilities of the situation'. Secondly it was referred to when he gave a redirection as to the possible effects of delay upon D's evidence. Thirdly it was referred to when he summarised the final addresses of counsel. In addition, of course, his Honour summarised the relevant evidence for the jury.

14 Although D's mother was able to give corroborative evidence concerning surrounding circumstances which might be said to provide the background to D's evidence, she was unable to give any direct evidence of the incidents in issue.

15 The informant gave evidence that when confronted with D's allegations in 2002 the applicant's response was that they were "all crap".

16 The informant further gave evidence of an edited version of a formal interview with the applicant. In that interview the applicant admitted the historical framework of D's account was accurate as to her age, and various places of residence at particular dates and of his presence at those places. He disputed an extended series of the surrounding circumstances which as I have said the Crown emphasised as part of its case with respect to the credibility of D's evidence.

17 The matters disputed included the occurance of an occasion on which the applicant cut off D's sister's ponytail when they were at Kerang, the nature of clothing which the applicant possessed at relevant times, whether he customarily wore underpants, whether D's sister was taken to hospital by ambulance at the time of the alleged incidents at the end of August 1980, and whether his children had ever helped him stack firewood.

[9]

19 No exception was taken to this part of the charge.

20 It was however submitted in this Court on behalf of the applicant that in this passage the trial judge wrongly directed the jury that the parts of the record of interview relied upon by the prosecution were more likely to be true than those relied upon by the defence and that his Honour undermined the weight to be given to the applicant's denial of the allegations.

21 The short answer to this contention is that this was not the effect of his Honour's charge. His Honour made clear that the evaluation of the record of interview was a matter for the jury. He was entitled to draw the jury's attention to the fact that they might regard different parts of the evidence contained in the record of interview as having a different weight and in particular that they might regard exculpatory statements as falling into a different category from those containing admissions. Nevertheless the charge made clear that it was for the jury to consider the possibilities not only that not everything in the interview was true but also on the other hand that it "may be true". It was proper to charge the jury in terms of the reasonable possibilities having regard to the onus of proof borne by the Crown. The judge had already directed the jury as to such onus and as to the significance of possibilities in the drawing of inferences.

22 It was next submitted that the judge should not have told the jury that the answers given in the applicant's police interview were not given on oath. It was said this violated the intent of s.399(3) of the Crimes Act 1958. In my view it is clear that the terms of s.399(3) were not breached. No comment was made upon the failure of the applicant to give sworn evidence.

23 It was open to the trial judge to identify the character of the evidence comprised in the record of interview as he did. The relevant principles are stated in the authorities approved in the joint judgment of the Court of Appeal in R. v. Su[9] and were summarised by the Court of Appeal in England in the case of R. v. Donaldson[10]:

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