R v Knigge [2003] VSCA 94

Court of Appeal (Vic)|2003-08-01|Before: WINNEKE, P., PHILLIPS and CHERNOV, JJ.A.

Criminal law - Sexual offences - Evidence - Use of VATE tape procedure - Whether special directions required.

Evidence - Recent complaint - Whether modification to common law principles required in respect of complainants of tender years.

On 4 December 2001, the applicant was convicted by the jury on all counts. Following a plea in mitigation, the trial judge, on 20 December 2001, sentenced the applicant as follows:

His Honour declared pursuant to the provisions of the Sentencing Act 1991 that he had sentenced the applicant on counts 3, 4 and 5 as a "serious sexual offender". Specifically, he ordered that 12 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1; and he further ordered that 12 months, 18 months and 12 months of the sentences imposed on counts 3, 4 and 5 respectively be served cumulatively upon the sentences imposed on counts 1 and 2. The total effective sentence was, thus, one of five years six months. The judge ordered the applicant to serve four years of that sentence before becoming eligible for parole; and declared that the applicant had already served 16 days of that sentence.

The applicant has sought leave to appeal against the convictions recorded and the sentences imposed. Before turning to the grounds of the applications, it is desirable that I outline some of the salient features of the evidence led, and the procedure adopted, at the trial.

The probative evidence against the applicant was confined solely to the evidence of the complainant. Her evidence-in-chief was given by way of the "V.A.T.E. tape" procedure (the "VATE tape") prescribed by s.37B of the Evidence Act 1958. That section prescribes (inter alia) that, in proceedings relating to a charge for a sexual offence, the evidence-in-chief of the complainant may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to her by a person prescribed for the purposes of the section if the witness is a person under the age of 18 years. The recording so made is admissible in evidence in the proceeding as if its contents were the direct testimony of the witness, provided that a transcript of it has been served on the defendant or his legal practitioner 14 days before the commencement of the hearing. In this case it was not in issue that the VATE tape recording of what became the complainant's evidence-in-chief was procured in accordance with s.37B of the Evidence Act by an authorised person, but approximately one year after the relationship between the applicant and K.'s mother had terminated. At that time K. was aged eight years. At the trial the VATE tape recording was played to the jury as the evidence-in-chief of K. K. was present at the court but in a room remote from the courtroom. That procedure is permitted by s.37C(3) of the Evidence Act 1958 subject to the proviso that the trial judge must warn the jury not to draw any inference adverse to the defendant as a consequence of the adoption of that procedure. After the recording of the evidence had been played, and shown, to the jury the VATE tape became an exhibit in the proceedings; and it is not entirely clear from the transcript whether the jury had unrestricted access to that exhibit during the course of their deliberations. In the event that the jury did have such unrestricted access, it would have been contrary to the decisions of this Court in R. v. B.A.H.[1] and R. v Dale Lewis[2] . No ground of appeal alleged such an error of procedure and no point was made of it during the course of the appeal. Following the introduction of the VATE tape into evidence, K., who was 10 years of age at the time of the trial, was cross-examined generally about the content of her recorded evidence.

It must be said that the evidence-in-chief, as recorded, was vague, repetitive, and procured too frequently by leading questions put by the authorised person to the complainant. On any view, it was difficult to align it to the counts contained in the presentment. It was characterised by such answers as:

* "[He] used to do quite a lot of bad things ... used to pull down your pants and a couple of times ... and he used to do other things. He touched me in different places." * "He lives with Jeff and Rosie. He hung around with them. ... He also got a whole bag of toys that he gave me and they're down in the shed. ... I don't like them - hearing voices and things, tease me, and stuff. But some of the voices are in a different languages and I can't understand ... how many voices." * When asked to say what were the "bad things", the response was: "He once told a lie to me. He said he was leaving on my birthday, but went out the back and played with all my friends. .... He's lied to me there." * "He's also touched me in my vagina around my chest and my bottom. ... He's done it quite a few times." * When asked to direct her attention to the "first time", K. replied: "Yeh, the first time was in bed ... when he was coming up there to say goodnight, `cause he always used to do that - and he kept all these things inside this caravan at a different house and also he had our keys to, a pair of our keys I think ... ." * The questioner then asked who slept in the bedroom with her. K. said that her sister used to be on the top bunk, "so she didn't even see what happened or anything". When asked whether her sister was there, the response was: "Yes she was up there but she was probably asleep. Mum was saying goodnight to her, because, while Mum was saying goodnight, Jack was saying goodnight to me." When asked about "what happened with Jack", she replied: "He did bad things that I didn't like." When asked what he did, K. responded "He did things like he touched me. He lied to me. Took me to these weird places or some places where I didn't like." [Later in the interview, the complainant was asked whether there was "anything she would like to talk about that happened in these weird places". She said: "Nothing did really happen; but it was just really weird". When pressed she said that they were weird because of "the way they looked and things".] * The questioner then asked K. to tell her "Where he touched you". K. responded "My bottom and my vagina". When the questioner reminded K. that "Your Mum was in the room", K. responded: "Yeh, but she didn't realize it, cause she was tucking [the complainant's sister] into bed and saying goodnight to her. ... And then ... once he did it a couple of times, quite a few times, it just was about 10, he only did it about 10 times I think. ... I started to get sick of it, so one weekend I went over to my Dad's, and then I came back. He was gone. I was gonna tell Mum. But then I forgot about it for quite a while, for a couple of months. And then I just got really scared, and then I started to hear voices and things." * The questioner then sought to bring K.'s recall back to "this time that you were in bed". K. replied: "He put his hand down my pants and he was rubbing around and he ... at the other time when he did it around my chest, he put it down my back - no, not my back, down the front, but ... I didn't actually realise it and ... to last a while and he started doing it a lot more. And then I was about to tell my Mum. After the weekend, I went to my Dad's, but then he was gone. And Mum probably wouldn't be able to talk to him again and tell him not to do that ever again. And so I just forgot about it." * When the questioner then said "Let's talk about the time as you said that he touched you on the bottom and the vagina where were you." K. replied: "A couple of times it was on the couch ... at home." The questioner then said: "Let's talk about the times on the couch then. Who was at home?" K. then described that her mother, brother and sister were at home but were outside and that she was sitting on the couch in front of the television. She described how the applicant was "rubbing" her chest and then started "rubbing ... around my stomach and things". She could not remember the time of day, whether it was the afternoon or night time. K. described that the episode on the couch lasted "about five minutes or something" and that she felt "very upset about it but at that moment, I didn't actually really - well I didn't realize it." The complainant thought that the incident "on the couch" occurred in or about January 1998. The questioner then said: "So you've talked about this time when he's touched you ... rubbed your chest and your stomach", to which K. replied: "He's done it on the couch quite a few times." She was then asked: "Can you remember another incident that happened on the couch", to which she replied "Nuh ... that's the only one and that's ... the only thing that was done on the couch." It was then put to her "You've also said that Jack has touched your bottom and your vagina", to which she replied "Yeh ... a couple of times it was on the couch and most of the times it was in bed `cause my Mum was either saying goodnight to [the brother] or goodnight to [the sister]. So if [the sister] did see it happen once, then she probably would have told Mum, but I don't think she did see it happen."

The VATE tape continues over a considerable period, with the questioner seeking to bring K.'s mind back to the essence of the question, and seeking to get specific answers relating to specific occurrences alleged to have happened. On more than one occasion, the interviewer sought to bring the complainant's mind to a particular episode but, to those reading the transcript of the interview, it is by no means easy to conclude that the episode which is then being described, on revision, is the same episode as that initially mentioned.

In particular, there seems to me to be a lack of quality about the evidence given in support of counts 2 and 4 which alleged sexual penetration by insertion of the fingers into the vagina. Count 2 alleged an act of penetration between 8 April 1997 and 30 June 1998. The evidence in relation to such an act was not elicited in the initial part of the interview, but appears to have been obtained by leading questions on the part of the interviewer, following a suspension of the interview when the interviewer left the room. Upon her return, the interviewer reviewed what K. had said about the "first incident" which occurred in the bedroom (at a time when K.'s mother was also present). Then the questioning reverted to the "next time when you were on the couch". The interviewer continued:

"You said that it felt uncomfortable ... and that he'd put his hand - touched your bottom and your vagina, and it was - and he pulled his hand out of your vagina."

"So you said that he put your - his finger around and in your vagina. ... When you say `in your vagina', what do you mean by that?",

"Well, down the crack and things and different ... places, like, on the sides of my vagina, sort of a bit in the side. ... Down a crack of my vagina."

"How do you know that he had his finger in the crack."

These statements put propositions to K., which - contrary to their tenor - had not been previously volunteered by K. When sentencing the applicant, his Honour was to refer to these answers as providing "ample evidence" of penetration.

The offence of penetration which was charged in count 4 of the presentment was alleged to have occurred in the last week of the relationship between the applicant and K.'s mother. Early in the interview K. had told the interviewer that the "last time" she had been assaulted by the applicant was "about a week before Mum broke up. It was near the weekend when I was going to my Dad's." K. went on to tell the interviewer that: "He was sort of pushing my bottom and pushing me in different places, like my vagina, bottom and my chest". When asked whereabouts this had happened, she said: "And it happened twice in bed and the school night on Friday night. And - the couch when I was about to go over to my Dad's." She was then asked about the last time when this had occurred and she said that it was on the couch in the lounge room. She said that the applicant had sat down beside her on the couch and started "sort of pushing me in my vagina and my bottom and my chest." Amongst other things K. said that the applicant "was feeling around my vagina pretty roughly"; that he had touched her on the bottom for "about two minutes" and on the vagina for about "two minutes" and on the chest for about "two minutes". She said that he had his hands down the back of her pants "almost reaching ... to my vagina". She said that "he put his hands under my leg, sort of, from my bottom to my vagina - sort of a bit under my legs". He was "sort of moving around a bit". When asked how, she said: "He was moving more back to the couch and moving forward and things. And he was standing up and sitting down and he kept on moving around." The interviewer then asked K. to explain "How was he rubbing your vagina?", to which K. responded "He was sort of - pushing". When asked how that made her feel, K. responded "Uncomfortable, and it got pretty sore afterwards". "Whereabouts was it sore" she was asked, to which she responded "mostly at my chest".

The incident to which I have referred in the last paragraph, was revisited by the interviewer at a later time. Again the interviewer was seeking to "sum up" what she believed she had been told earlier in the interview, and was doing so in the form of leading questions. She referred K. to the incident said to be "near the weekend that you were going to Dad's" and that "it was rough". The interviewer put it to K. that it was a Friday night and not long before "your Dad was coming to pick you up"; she put it to K. that the applicant had put his hands down the back of her pants and "around your bottom area". It was further put that his hand was also "more towards your vagina area ... you indicated that it was under". After putting these matters in reconstruction, the interviewer then put it to K. that the applicant had "pulled his hand out and put it down the front of your pants". The questioning then proceeded: "You've also said that he put his finger in your vagina". No such allegation had been made by K. However, when the proposition was put to her, she nodded her head. When asked how far the applicant had put his fingers "in there", K. indicated "about that far" (estimated to be about 4 cms).

I have referred at some length to the nature and quality of the record of interview contained in the VATE tape because it was that record which constituted the only admissible and probative evidence against the applicant in respect of the counts on the presentment. Although no ground has been taken on this appeal contending that the convictions recorded by the jury are "unsafe or cannot be supported having regard to the evidence", the nature of the evidence becomes nevertheless relevant to the grounds of appeal against conviction which were argued in this Court. Those grounds were as follows:

"2. The trial judge failed to direct the jury as to the danger of convicting in all the circumstances, pursuant to a `Longman warning'. 3. The trial judge erred in admitting complaint evidence in relation to both the school teacher and the mother of the victim. 5. The learned trial judge erred in his directions to the jury in respect of the evidence of the complainant's complaints. 6. The learned trial judge erred in directing the jury that `the reason for the exception [for permitting the admission of evidence of complaint] is that in general, persons who are compelled to sexual conduct complain about it'."

I will postpone consideration of the sentence application until I have considered these grounds.

The Crown led evidence from one Karen Linda Garrard, who was a teacher at the complainant's school, of what was said to be a "recent complaint" made by K. to the witness on 16 December 1998 -i.e. nearly six months following the cessation of any relationship between the complainant and the applicant. The evidence of the witness was that on the day in question she had spoken to the complainant in the "sick bay" at the school which the complainant had attended "feeling unwell" and with her arm in a sling. The witness said that she was talking to the complainant about various matters when the complainant "started telling me about games which she used to play with Jack". This conversation occurred in the course of a "chat" which the witness said she frequently encouraged students to engage in when trying "to make the time go faster in sick bay". The witness said that K. had told her of a particular game they would play with Jack where:

"Jack would run around the house with a towel on and it was a game. The children had to try and grab the towel and pull it off him."

The witness said that she was thinking that it was "just a game" but she asked K.:

"Jack would like to come and sit next to her on the couch, very close, or like for her to sit on his knee".

The witness said that the complainant had told her that when the applicant sat next to her on the couch "he liked to put his hand on her leg" - "Up quite high on her leg". (The witness demonstrated where she was told that his hand was, namely "quite high up on the thigh".) The witness further gave evidence that the complainant had told her that the applicant would often come into the bathroom when she and her sister were in the bath, that he would "just barge into the bathroom". Furthermore, so the witness said, K. had told her that when she was changing to go to bed, he would often come in and ask her "Do you have any underwear on?". The witness had further been told that, when these things occurred, her mother was not at home. The witness reported these comments to the School Principal "in compliance with the obligation of mandatory reporting". The complainant's mother was then contacted by the school. That was the first time that she - that is the complainant's mother - had ever heard of a suggestion of anything "untoward" occurring between the complainant and the applicant. Indeed the mother gave evidence that she did not question the complainant about these matters until May 1999. This was because the message received from the school was equivocal and merely "implied" that something might have happened.

Objection was taken by trial counsel for the applicant that the evidence of the witness Garrard was not admissible because it was neither evidence of a complaint, nor was it evidence of a "recent" complaint. It was submitted that what was said by the complainant to Garrard was nothing more than an excerpt in general conversation which exhibited no grievance on the part of the complainant in respect of the conduct of the applicant; and furthermore it was neither spontaneous nor "recent" within the meaning of the doctrine of "recent complaint". It was not evidence, so it was submitted, of a complaint of inappropriate behaviour; and certainly it was not a complaint of the type of behaviour expressed in the VATE tape reproduced some six months later. His Honour rejected that submission and ruled that the evidence was admissible. His Honour said:

"At the time the alleged complaint was made, on 16 December 1998, [K.] was seven years of age having been born on 8 April 1991. The evidence that we are concerned with is set out at [certain pages] of the depositions. Under the heading of `special games' K. gave examples of inappropriate behaviour between herself and the defendant. It involved including an allegation that he touched her high up on her legs. It is my view this evidence is not too vague and inappropriate to be led by the Crown. [Counsel] also submits that given the last allegation is said to have occurred no later than 30 June 1998, the complaint made on 16 December 1998 is in effect too stale. [Counsel] acknowledges that the law has moved on since the principles espoused in Freeman's case [i.e. R. v. Freeman [1980] VicRp 1; [1980] V.R. 1] were laid down. [Counsel] however argues that the delay is still too long. I note that the Crimes Act s.61(1)(b) allows for a judge to give directions to a jury about a delay in complaint. In my view this presupposes that evidence of complaint although delayed may be given. In fact since Freeman's case ... the courts have moved on, particularly where the complainant is a child. The courts have realised that there are special reasons why children hesitate to complain, and hence delayed complaint evidence is not automatically excluded. [The prosecutor] has referred me to Keevers' case[3], an unreported decision of the Court of Appeal of New South Wales of July 1994 as an example of this progression of thought by the courts. Parliament saw fit to intervene in relation to s.61 of the Crimes Act, to which I have already referred, in 1997. It seems to me it is now routine to allow delayed complaint evidence to be admitted with appropriate warnings and directions to the jury."

Mr. Holdenson, who appeared before this Court on behalf of the applicant, submitted that the trial judge was in error in admitting the evidence of the witness Garrard for a number of reasons. Firstly, he contended, that her evidence was not evidence of a complaint at all; secondly, it was not evidence of a "spontaneous complaint" or a complaint made "at the first reasonable opportunity". Finally, he submitted that his Honour was in error in the reasons which he gave for admitting it.

In my view there is substance in these submissions. It has long been the law that evidence of a complaint made at the earliest reasonable opportunity by the alleged victim of a sexual assault is admissible, not as proof that the crime alleged was committed, but as evidence buttressing the credit of the complainant by demonstrating consistency in her conduct and consistency of the evidence given in court[4].

I would myself doubt whether the evidence of Garrard was evidence of a complaint at all within the meaning of that term. Rather, it seems to me to have been in the nature of general discourse between the complainant and the witness about events of day to day activities (by no means approaching the conduct complained of in the VATE tape) which had occurred many months before at the complainant's house. As it seems to me the statements made to Garrard scarcely resemble a complaint of a grievance harboured by the complainant that she had been sexually abused[5].

However, even assuming that the statements made by the complainant to Garrard in December 1998 were capable of amounting to evidence of a "complaint", it was not a complaint which was made at the first reasonable opportunity. There was ample evidence before the Court that the relationship between the complainant and her mother was a close and confiding one; and the evidence further disclosed that the complainant was a young girl content to confide in her teachers at school. What she said to Garrard, and what was admitted as evidence of "recent complaint", came two years after the allegation of the first sexual assault and approximately six months after the last of such assaults. It was argued by Mr. McArdle, on behalf of the respondent, that the Court should be prepared to give a "broad interpretation" to the concept of "recent complaint" in cases of sexual assaults against young children, particularly in light of the fact that s.61(1)(b) of the Crimes Act 1958 (Vic.) now requires the trial judge to tell the jury that there may be good reasons why a victim of sexual assault may delay or hesitate in complaining about it. The submission was founded upon the proposition that the assumption which underlies the relevance of "recent complaint evidence", particularly in relation to young children, is now regarded by the legislature as of doubtful validity[6]. Mr. McArdle drew on the decisions of the Queensland Court of Appeal in R. v. W.[7] and R. v. M.[8] as supporting his submission. In R. v. W.[9], the Court was considering a complaint made by a young girl one week after the events of which she was giving evidence occurred. Dealing with the concept of complaint made at "the first reasonable opportunity" the Court said:

"Having regard to the rationale for the rule, that formulation of the requirement [the Court was referring to the statement of the rule in Kilby v. R., supra, at 465, 473 and R. v. Lillyman[10]] ... may state it too narrowly. A complaint may be capable of supporting a complainant's account even if not made at the earliest reasonable opportunity, particularly if `reasonable' in that formulation denotes an objective test unrelated to circumstances peculiar to the particular complainant. A more satisfactory formulation, in our view, would be whether, having regard to the circumstances surrounding the complaint, including the time which had elapsed since the alleged commission of the offence, the complaint is capable of supporting the credibility of the complainant as a witness."

Similar views were expressed by Davies, J.A. in R. v. M.[11].

Although, in my view, there are some attractive aspects to these submissions made by Mr. McArdle, they cannot, I think, prevail. Even if one regards the complaint made to the school teacher in December 1998 as fulfilling the requirements of "a complaint", it cannot be regarded, in my view, as a "recent complaint" in the sense of a complaint made at the first reasonable opportunity and in circumstances capable of buttressing the complainant's credibility. Nor, in my view, can the characterization of a "recent complaint" relevantly take its colour (whether in the case of young children or otherwise) from the nature of the direction required to be given by trial judges in this State pursuant to s.61 of the Crimes Act. In Suresh v. R., supra, the admissibility of a complaint made by a young victim of a sexual assault in circumstances which were similar to those of this case, was in issue. Although ultimately the High Court dismissed the appeal on the grounds that the evidence of complaint had been admitted without opposition by the accused for the advancement of his own forensic purposes, and that, therefore, no miscarriage had occurred, the Court made some general comments on the issue of "recent complaint". McHugh, J.[12] said:

"It is difficult to accept that the evidence was properly admissible as evidence of a recent complaint having regard to the six month delay and the apparent existence of reasonable opportunities to make a complaint."

"Evidence of prior complaint is admissible in sexual offence cases by way of exception to the rule against hearsay. It is admissible because of the tendency of people to assume, at least in earlier times, that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false. ... As Gaudron, J. explained in M. v. The Queen[14], the assumption that the victim of a sexual offence will complain at the first reasonable opportunity is an assumption of doubtful validity particularly in cases of child sexual assault. And it is an assumption that is now frequently called into question, including by directions to the effect that there may be good reason why a person would delay in making a complaint. When a direction of that kind is given, a jury may well take the view that the evidence of prior consistent complaint enhances the credit of the complainant even though the complaint was not made until well after the events in issue." (my emphasis)

Although this statement, unaided by context, might appear somewhat cryptic, I understand their Honours to be saying that where a direction is given to the jury in the form now contemplated in this State by s.61(1)(b) of the Crimes Act - namely that where it is suggested that a complainant of sexual assault has delayed in making complaint the judge "must inform the jury that there may be good reasons why a victim ... may delay or hesitate in complaining ..." - the admission of evidence of a prior consistent complaint which is not "recent" may well lead the jury to the unwarranted conclusion that the complainant's credit has been enhanced by the "late" complaint. That this was their Honours' meaning is made clear, as it seems to me, by their immediately proceeding to point out how the giving of the required instruction, in a case where the credibility of the complainant is critical, can only increase the "danger" for an accused, and how - in such circumstances - it is unlikely that the proviso could then be applied[15].

Kirby, J. referred to views expressed in the intermediate Court of Appeal relating to a modification of the rule in respect of "early complaint" in cases of young children. His Honour further referred to the fact that, in the instant case, the delay between the sexual act referred to in evidence and the complaints to school friends was about seven months after the last offence charged in the indictment, and nearly two years after the commencement of the alleged assaults. His Honour went on[16]:

"Anderson, J, was right to emphasise the exceptional character of the admission of statements of complaint. By the authority of this Court, whether such complaint is made `at the earliest reasonable opportunity' is an important consideration in determining its admissibility. Statute may modify this requirement. In Western Australia, the Evidence Act 1906 (WA) has been amended to require the judge, on the trial of a person for a sexual offence, where there has been an absence of complaint or delay in making a complaint, to give a warning to the jury to the effect that such `absence ... or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false'.[17] The judge is also advised to inform the jury that `there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence'. Such warnings were given in this trial. So far, the statute has refrained from going further. Outside the matters governed by statute the old rule remains." (my emphasis)

It seems to me that in this case, as it was in the case of Suresh, the time lapse between the date of the alleged offending and the date of this so-called complaint was far too long to fulfil the criteria of "recent complaint". Furthermore, the fact that the Crimes Act now requires judges to tell juries that there may be good reasons why a victim of a sexual assault might delay or hesitate in complaining about it provides, in my view, no justification for modifying or expanding the common law rule as to recent complaints. The reason underlying the provision in s.61(1)(b) of the Crimes Act requiring the judge's direction is to nullify the impact of a statement made attacking the credibility of a complainant on the basis of the failure to make a spontaneous or recent complaint. It can provide no legitimate basis, in my view, for the admission of a statement of complaint which does not meet the criteria of a "recent complaint" for the purposes of positively bolstering the credit of the complainant. Sub-section 61(1)(b) is of general application to all complainants of sexual offences. To interpret it in the way in which his Honour did, albeit in the case of an infant complainant, runs the risk of disturbing the "balance of fairness" which the courts require judges to maintain in giving directions to juries in respect of absence or delay in making complaint[18].

For the reasons given, it is my opinion that his Honour was wrong to have admitted the evidence of the witness Garrard, and was also in error in assigning the reasons which he did for admitting that evidence; namely that "the law has moved on since the principles espoused in Freeman's case were laid down", and that the provisions of s.61(1)(b) of the Crimes Act 1958 "presupposes" that evidence of complaints can now be admitted - at least if made by children - even though they are not "recent". Although his Honour relied upon the decision in R. v. Keevers (supra) that was a decision which depended upon its own facts, namely that the complaint was made at the first reasonable opportunity after the complainant recognized that there was cause for grievance.

Judge's Directions as to "Complaint" - Grounds 5 and 6

In the course of his directions, the judge told the jury that the evidence was that K. had first complained to Garrard on 16 December 1998. He further told them that the accused was challenging the fact that this was "a complaint of sexual misconduct", and that it was a matter for the jury to decide whether it was. He then told the jury that there was no dispute that whatever was said on that occasion "started the ball rolling". His Honour went on:

"Let me tell you that evidence of complaint is an exception to the ordinary rules of evidence which excludes self-serving and hearsay evidence. The reason for the exception is that in general persons who are compelled to sexual conduct complain about it. So evidence of complaint is allowed to be given in order to test the consistency of the victim's conduct. ..." (my emphasis)

Mr. Holdenson submitted that, in the context of a case where the credibility of the complainant was so significant, this direction elevated the effect and significance of the complaint evidence to something approaching a presumption; namely that if a complaint had been made, it was because the complainant had been "compelled to sexual conduct". Mr. Holdenson relied upon the decision of this Court in R. v. Matthews[19] where the Court concluded that a direction that "the legal theory being that those who are raped complain of it and those who are not raped do not complain of it" had caused a miscarriage in the trial.

Although, in my view, a direction of the sort here given was wrong in law[20], I cannot agree that the direction, by itself, constituted a miscarriage. No exception to this aspect of the judge's charge was taken by counsel for the applicant at the trial, and if the evidence of Garrard had been properly admitted as evidence of "recent complaint", I would not be prepared to conclude that the impugned direction, by itself and taken in the context of the charge as a whole, would have caused the trial to miscarry.

It follows from what I have already said that this was a trial where the evidence-in-chief of the complainant, constituted by the record of the VATE tape, was far from clear and difficult to relate to the counts in the presentment. It was a case in which there was no corroborative evidence of the allegations made by the complainant against the applicant and was a case where the complainant's credibility was essential to the proof of the charges. It was, thus, a case where Garrard's evidence, admitted as evidence of recent complaint, assumed a critical significance because the jury was told that it could be used by them to buttress the credibility of the complainant. If it was not admissible, and in my view it was not, then it can scarcely be said that a miscarriage of justice has not occurred in this trial or that this is a case in which the proviso to s.568(1) of the Crimes Act 1958 can apply. In my view this is a case very much like Suresh v. R. (supra) where Gaudron and Gummow, JJ. said[21]:

"Where, as here, the jury is instructed that there may be good reason why a person might delay in making complaint and the prosecution case depends on the credibility of the complainant with respect to events which are largely uncorroborated and which, of their nature, are not likely to be witnessed by other persons, it is difficult to envisage circumstances in which it might be said that wrongful admission of evidence of a prior consistent complaint could not enhance his or her credibility. And if that possibility cannot be excluded, the accused will have been deprived of the chance of acquittal that was fairly open and a proviso of the kind found in s.689(1) of the Code [WA] cannot then be applied. If the evidence as to what the complainant said to her school friends was simply evidence of prior but late complaint, the fact that, in this case, the complainant's credibility was very much in issue would require that the appeal be determined in the appellant's favour. ..."

Likewise, in the same case, Kirby, J.[22] said:

"On the premise that the evidence of complaints ought to have been excluded as not sufficiently `recent', it's impossible in my view, to justify the application of the proviso. It is impossible to suggest that the evidence which buttressed the credibility of the complainant with the testimony of three other witnesses (linked by the complainant's evidence to the appellant) could not have added considerable weight to the complainant's allegations. For all that a court knows the evidence might have been crucial to the jury's reasoning. ... Given the centrality of the credibility of the complainant in this case, I could not agree to the application of the proviso if the evidence of complaint was wrongly admitted ... ."

In this case where, for the reasons which I have stated, the evidence of Garrard as to "recent complaint" was wrongly admitted, and where that evidence was central to the case made by the prosecution, it is my view that the proviso cannot be applied, and that the verdicts cannot stand.

Mr. Holdenson submitted under cover of this ground that the judge was bound to direct the jury that it was "dangerous to convict" the applicant on the basis of the uncorroborated evidence of the complainant. He contended that the judge failed to identify a number of factors or matters which the jury was required to keep in mind when assessing that evidence. In essence, it was his submission that the judge should have made reference to the inadequacies in the complainant's evidence, much of which was vague, lacking in clarity, confused and lacking in detail. In particular, he submitted that the evidence relating to counts 2 and 4 (i.e. the penetration offences) was not only vague, but had been procured in essence by leading questions from the police officer who conducted the VATE tape interview. The essence of the submission was that the jury could not be expected to realize or understand the impact of these deficiencies upon the reliability of the critical evidence-in-chief of the complainant, having regard both to the manner in which that evidence had been procured by the investigator, and the fact that it had been so obtained nearly two-and-a-half years prior to the date of trial. It was these factors, so it was submitted, that required a warning of the type which counsel contended should have been given.

Counsel for the applicant at trial had asked the judge to give such a warning; but the judge had declined. That application had been couched in terms of a request for a "Longman warning"[23]. Trial counsel had submitted that such a "warning" was appropriate having regard to the long delay between the commencement of the alleged sexual misbehaviour of the applicant and the date of the complaint; the fact that the complaint, when made, was equivocal and inconsistent with the complainant's evidence-in-chief as described on the VATE tape; the fact that the complainant's evidence was uncorroborated; the fact that there had been a further six months' delay between the date of the complaint to Garrard and the procurement of the evidence on the VATE tape; and the fact that the evidence of penetration had been procured by leading questions and was inconsistent with the evidence of Dr. Sutherland-Smith - the paediatrician from the "Gatehouse Centre" - who had first examined the complainant. Dr. Sutherland-Smith had given evidence that her training in paediatrics had involved "the assessment of child abuse in its broad context, its physical abuse and sexual abuse" and that she had acquired that experience over a period of some 12 years prior to the date of trial. She said that, upon her examination, she did not find "any signs of past trauma or any other abnormalities" and that her "genital examination" did "not support or refute the complainant's allegations". Amongst other things she was asked in cross-examination whether she had "maintained a doubt as to whether or not there had been any penetration at all", to which she responded "I was not totally convinced about penetration, that's correct".

In ruling that he would not give a direction of the type which trial counsel for the applicant had sought, his Honour said that he was not satisfied that any of the matters relied upon by counsel, either singly or collectively, warranted such a warning. It was this ruling which Mr. Holdenson challenged in the course of this appeal. In particular, Mr. Holdenson pointed to certain aspects of his Honour's directions to the jury which, so it was submitted, were inadequate to meet the circumstances of the case. He referred in particular to the following directions:

"When assessing the evidence of the witnesses you are evaluating their reliability and their veracity. From these general directions which apply to all witnesses, including [the complainant] I propose to give you some directions concerning the evidence you heard from her. In doing so I am not suggesting ... that people who complain or make allegations of sexual conduct are in any way suspect or unreliable witnesses or persons who should be treated as inferior because they make complaints or allegations."

His Honour went on to direct the jury that the evidence of the complainant was "critical". He told the jury that her evidence was "central to the case of the prosecution in respect of each of the counts against the accused man". His Honour further said:

"In considering the evidence of [K.'s complaint] you should bear in mind of course that it springs from the same source as the evidence of the crime. It may or may not demonstrate consistency, but it's not to be regarded as evidence independent of the complainant giving additional support to the probability that the crime happened. Its only effect is on the credibility of her story and whether, delay by itself can have unfortunate consequences. It can prevent the authorities from making a timely investigation into the complaints. It can therefore deprive you of the opportunity of examining evidence that could perhaps have been obtained at the time."

"Now, all of these matters should be taken into account as you deliberate on [the complainant's] evidence. To sum up then, you should give the evidence of [the complainant] closer scrutiny, paying attention to the matters which I have outlined and about which I have given you directions and warnings."

These directions, so Mr. Holdenson submitted, were inadequate to bring home to the jury the specific difficulties which the evidence in the case presented to them. First, he contended, that to tell the jury that they "should" give the evidence of the complainant "closer scrutiny" was insufficient when the inadequacies in that evidence made it absolutely essential for the jury to pay heed to such of them as his Honour outlined. In any event, so it was submitted, the directions were inadequate to identify a number of factors which the jury was required to keep in mind when assessing the complainant's evidence. These matters included the confusion, lack of clarity and detail and sheer vagueness of the evidence-in-chief which, as his Honour had indicated, was "critical" to the prosecution's case. Much of that evidence, Mr. Holdenson submitted, needed prompting and repetitious clarification and even then, so he submitted, the evidence remained uncertain. In the face of the evidence with which the jury was confronted, so Mr. Holdenson submitted, a fair trial for the applicant could only be ensured by the giving of a warning to the jury - with the authority of the judge's office - that it would be dangerous or unsafe to convict on that evidence alone, unless after thorough scrutiny, the jury was convinced of its truth and accuracy.

It is true, as Mr. Holdenson submitted, that the trial judge should give such directions as are necessary, in the circumstances of the case before him, to ensure that fairness in the trial is maintained. Longman v. R. (supra) and R. v. Miletic[24] are examples of cases in which it was held that the nature of the evidence was such as required a warning to the jury from the trial judge of the type which Mr. Holdenson submitted should have been given in this case. They do not pretend to state exhaustively the range of circumstances in which judges are required to give such a warning. Nevertheless they indicate that a judge should be astute to consider the giving of such a warning in cases where there is but one prosecution witness to the acts charged and where the circumstances are such that a jury may not have the full appreciation, even with the benefit of their width of representation, of particular aspects of unreliability to which the judge should draw attention[25]. In this case, Mr.Holdenson's submissions focussed attention upon aspects of the unreliability of the complainant's evidence-in-chief which had been procured and admitted into evidence pursuant to the provisions of s.37B of the Evidence Act. Although no application had been made at trial to exclude all or any part of that evidence (as it could have been pursuant to sub-s.(4) of that section), the essence of the submission was that a warning, of the type for which counsel contended, was required because the jury would not have been alert to the manner in which the deficiencies, created by the way in which the evidence had been procured, impacted upon its reliability. Nothing which counsel could put to the jury, by way of address - so it was submitted - could effectively alert the jury to the potential dangers of acting on the evidence, in particular of "penetration", procured in the manner in which it was by means of the "VATE tape" procedure.

It cannot be doubted that technology has assisted young victims of alleged sexual assaults to avoid the rigours and intimidation of court room procedures and, thus, to provide them with an avenue of exposing inappropriate sexual behaviour by predatory adults, without which such behaviour might never be exposed. Nevertheless, courts should be astute to the fact that such technology, and the legislation which facilitates its use in criminal trials, has a capacity to distort the adversarial aspects of the criminal justice system which the common law rules of criminal procedure regarded as indispensable to a fair trial[26]. The VATE tape procedure enables a complainant's evidence-in-chief to be assembled in a place remote from the court of trial and in the absence of the accused to whom it is directed. The accused is necessarily deprived of the opportunity to challenge the "evidence" as it is given, to object to questions put and, accordingly, to "shape" the nature of the case made against him. In this case, the procedure employed procured that "evidence" in a fashion which potentially impacted upon its reliability. That is not to say that it was inadmissible. All that needs to be said is that there were aspects of the evidence, and the manner in which it was procured, which raised questions as to its reliability.

Because it is my view, for the reasons already given, that there will have to be a re-trial of these counts in any event, it is strictly unnecessary for me to decide this ground of appeal. It is also, I think, undesirable to do so because, if there is a re-trial, it is likely that the evidence which will be given at that trial, both as to form and content, will be different from the evidence given in the trial which we have been asked to consider on this appeal. If, however, there is a re-trial and the evidence - both as to form and content - remains the same as it was at this trial, then it will be a matter for the trial judge to determine whether a warning of the type contended for by Mr. Holdenson should be given. No doubt in so determining the need for such a direction, the learned judge will take into account the comments which I have made.

Finally, Mr. Holdenson submitted that, rather than remitting all five counts for a re-trial, we should enter judgments of acquittal in respect of counts 2 and 4 (i.e. the counts alleging penetration) because, so he contended, the evidence was so unsatisfactory as to render the verdicts on those counts unsafe. No such ground of appeal was taken and the Court heard no argument in respect of those matters from

the respondent. Nevertheless, they are matters which - for the reasons given - the Director should, and no doubt will, take into account in determining whether, in respect of any re-trial which is to be had, that re-trial should encompass counts 2 and 4. In the circumstances, the proper order for this Court to make is that the verdicts, and the sentences imposed, on all counts be quashed and that there be a re-trial on those counts. It is unnecessary in the circumstances to say anything about the application for leave to appeal in respect of sentence.

[3] unreported, Court of Criminal Appeal (NSW), 26 July 1994.

[4] Kilby v. R. [1973] HCA 30; (1973) 129 C.L.R. 460 at 472, per Barwick, C.J.; at 473-4 per Menzies, J.; Ugle v. R. [1989] HCA 55; (1989) 167 C.L.R. 647 at 649; R. v. Freeman & Ors [1980] VicRp 1; [1980] 1 V.R. 1 at 6-8; Suresh v. R. [1998] HCA 23; (1998) 72 A.L.J.R. 769.

[5] cf R. v. Saragozza [1984] VicRp 15; [1984] V.R. 187 at 198 per Starke, Kaye and Brooking, JJ.A.

[6] As to which see M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 514-5 per Gaudron, J.

[13] at pages 770-771, paras [4]-[6].

[15] see at p.771, at paras [6]-[7], to which I refer hereunder.

[17] Such a warning is not required in this State by s.61(1)(b) of the Crimes Act.

[18] Crofts v.R. [1996] HCA 22; (1996) 186 C.L.R. 427 at 448-50; R. v. Miletic [1997] 1 V.R. 593; R. v. Davies (1985) 3 N.S.W.L.R. 276 at 278.

[19] [1998] VSCA 2; [1999] 1 V.R. 534 at 539-40; Kenny, J.A. at 541.

[20] See R. v. R.H. McL.[999] 1 V.R. 746 at 773 per Batt, J.A.

[25] See R. v. Mazzolini [1999] VSCA 150; [1999] 3 V.R. 113 at 123-4 per Ormiston, J.A. I also refer in particular to the statements made by this Court in Miletic (supra) at pages 605-6 and in R. v. G.T.N. [2003] VSCA 38, particularly at paras [6] and [7] in the reasons for judgment of Callaway, J.A., and paras [61] ff. in the reasons for judgment of Eames, J.A.

[26] cf. R. v. NRC (No.1) [1999] VSCA 184; [1999] 3 V.R. 537.

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