R v M A G [2005] VSCA 47

5. After a trial which was conducted over several days and at which no evidence was called by the defence, the jury convicted the applicant of seven of the counts involving C, namely count 1 (threat to kill), counts 2 and 7 (incest), count 3 (attempted indecent act) and counts 9, 10 and 11 (indecent act). The applicant was further convicted of one count (namely count 12, incest) of the three counts involving S. (Counts 12 to 14). The applicant was acquitted on counts 4, 5, 6, 8, 13 and 14.

8. On 3 October 2003 the judge sentenced the applicant to a total effective sentence of four years' imprisonment and directed that he serve 2½ years of that term before becoming eligible for parole.

11. The applicant has now applied to this Court for leave to appeal against his convictions upon a number of grounds. Those grounds assert:

* Ground 2(A) - misdirections with respect to "recent complaint".

* Ground 2(B) - prejudicial "comments" by the judge concerning sexual allegations.

* Ground 3 - errors related to the use of the "VATE" tape.

19. Mr. Priest who appeared with Mr. Gillespie Jones for the applicant contended that - in a trial such as this where the evidence of the complainants was vague in respect of specific allegations and was met by blanket denials by the applicant in his record of interview with the police - it was necessary for the trial judge to give careful directions about the evidence and the use of it which could be made by the jury. In that context it was submitted that the judge's directions on the issue of "recent complaint" were unsatisfactory and erroneous.

22. The judge directed the jury that there was to be found in the material before them, evidence "of complaint". She told them that that evidence related to a complaint by C, but not by S. The evidence of a complaint by S, so her Honour told the jury, could not be regarded as evidence of "recent complaint" because it was prompted by a leading question from C. However, in relation to the complaint by C, her Honour told the jury:

"Here evidence has been given of complaint. Now it is referred to as recent complaint and it's a very specific category about which I direct you. Not at all times that people complain does it come into the category of recent complaint and I will give you an example. [Her Honour here referred to the complaint elicited from S by C.]. So that is why, although you have heard about complaint, such as to the teacher at school, ... . C did complain to her but it was in response to specific questions. So it does not come into the category of ... recent complaint. Here there are two matters of recent complaint that fall within that category for you to consider and they are the complaints made by C to Carey G. and to John C., the evidence of which you have heard. Now that evidence is an exception to the ordinary rules of evidence which exclude hearsay and what is called self-serving material. The evidence is permitted to be given in order to assist you in testing the consistency of the complainant's conduct. So it is about the consistency of her conduct. Complaining, spontaneous complaint, can make it more likely that the behaviour of the complainant is consistent with what she says at this stage. The absence or delay in making complaint may equally be used to suggest inconsistency, but that follows ... logically. [Her Honour then went on to tell the jury of the effect of `delay in complaint' in accordance with the provisions of s.61(1) of the Crimes Act 1958 (Vic.)]. What you have to do is to look at this evidence and what you can do is use it to determine whether or not you find there is a consistency in the behaviour of C. Does the complaint give you more comfort in terms of her believeability as a witness. You must remember the complaint of course comes from the same source. It is not independent evidence, because C is the one who is making the complaint, so it springs from the same source, i.e. C makes the allegations here and the complaints she makes to others come from her. So it is not independent evidence. ... It goes to your assessment of her credibility as a witness."

26. Mr. Priest submitted that these directions were far from satisfactory in the context of this case where the evidence of the complainant C was very vague but, on any view, could not meet the definition of "recent complaint". Although counsel for the respondent sought to suggest to the Court that there was evidence given by the witness C which could qualify as a "recent" complaint, it appears tolerably clear from the whole of the transcript that, - if there was a complaint made by C to Carey G. and/or John C. - such complaint could not, in law, qualify as a "recent" one. Indeed, it appeared to be conceded by counsel for the respondent and asserted by counsel for the applicant, that, although the alleged offending was said to have taken place over the better part of one year - such complaint as was made to Carey G. occurred in the twelfth month of that year whilst the complaint, if any, made to John C. occurred after the matter had been reported to the police.

29. Notwithstanding the matters to which I have referred in the preceding paragraph, the matter was left to the jury on the premise that "recent" complaints had been made; and the jury was, accordingly, instructed that they could use such complaint to support the credibility of C. Such a direction was erroneous because the complaints were not made at the "first reasonable opportunity"[1].

32. Furthermore, the directions which the learned judge gave in respect of "complaints" fell short of what was required In amplification of that statement, it is perhaps instructive to refer to the oft quoted passage in the judgment of the very experienced Full Court in R. v. Freeman & Ors. [1980] VicRp 1; [1980] V.R. 1 at 6. Their Honours said:

"If the circumstances in which the alleged complaint was made are such that the learned trial judge concludes that the complaint was not made at the first reasonable opportunity after the event, he would exclude it. If he concludes that it was made in circumstances which remove from it those characteristics which mark it as a complaint, he will exclude it. If he admits it, he will tell the jury that it is admitted only for their consideration as throwing light on the credibility of the prosecutrix insofar as it shows consistency in her account of the event and the kind of reaction ordinarily to be expected of a victim of such an incident as she complained of_. He will have to tell the jury that it does not provide evidence of the facts stated in the complaint_, and further, that the jury has to determine, firstly, whether the complaint was made, and if so, in what circumstances; and if made, whether the complaint points to the consistency of the evidence of the prosecutrix. The jury will have to consider whether it might go to show that the prosecutrix has reacted in a manner which might be expected of her if she had been subjected to the acts of the nature alleged. The jury will have to be told that the evidence as to the complaint is relevant only to the consistency of the conduct after the event, and that it does not in any way at all assist to prove the truth of the facts alleged, and that those facts must be proved by other evidence. If the jury find that the alleged complaint was made, they may take the making and contents of that complaint into account as one of the circumstances to be considered when assessing the reliability of the prosecutrix."

That statement remains good law in this State and is not rendered any the less applicable by the provisions of s.61(1)(b) of the Crimes Act which requires a trial judge to inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it. As this Court said in Knigge's case[2]:

"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 a failure to make a spontaneous or recent complaint. It can provide no legitimate basis ... 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."

38. When one measures the directions which her Honour gave to the jury in this case in respect of "complaint evidence" against what the law requires, they seem to me to fall short of what was necessary. For a start, it appears that her Honour simply assumed that the evidence of C of complaints to Carey G and John C amounted to "recent complaint". She did not ask the jury to so determine. Her Honour said:

"Here there are two matters of recent complaint that fall within that category for you to consider and they are the complaint made by C to Carey G and to John C, the evidence of which you have heard."

It could, of course, have only fallen to the jury to consider such evidence if indeed it was capable of qualifying as "recent complaint", which, as I have said, it clearly was not.

43. Furthermore, the directions, as it seems to me, fell short of what the law, as expressed in Freeman's case, required. On the assumption that the complaints were "recent", her Honour told the jury correctly that the evidence could only be used by them as throwing light on the credibility of the complainant insofar as it showed consistency in the complainant's account of the relevant events. However, her Honour's directions did not leave it to the jury to determine whether the complaint in fact had been made, and if so, in what circumstances; nor did she tell the jury that the complaint, if made, could not provide evidence of the facts stated; nor was it available to be used as proving the truth of the facts alleged, which facts had to be proved by other evidence.

46. There are other aspects of the directions which her Honour gave to the jury in respect of this matter of "recent complaint", which warrant attention. In the first place, the directions included a comment about C's "complaint" to her school counsellor. Her Honour told the jury, correctly, that the evidence of that school counsellor could not possibly amount in law to a "recent complaint". From this distance, it is difficult to understand what the relevance of the evidence of the school counsellor was. It was undoubtedly prejudicial, but, again, it appears not to have been objected to. Secondly, following her Honour's directions in respect of "recent complaint" she gave directions - which do not appear to have been given a contextual foundation - about the "absence or delay in making a complaint". She told the jury that delay in complaining or not complaining did not indicate that the allegations were false and that the "experience of the law is that not all complaints, not all people complain immediately after sexual assaults and you must recall that what we are talking about of course are children." These directions about "delay in complaining" have their genesis, of course, in s.61(1)(b) of the Crimes Act. They were intermingled with the directions given in respect of "recent complaint". In that context the directions would have been apt to confuse the jury because acceptance of the fact that C's complaint was "recent" rendered otiose any direction concerning "delay in complaint". It is, of course, true that her Honour had previously told the jury that the "complaint" by S would not qualify as "a recent complaint", but the directions to which I have referred were, as I have said, woven into those which were given in relation to the complaint by C.

49. These directions, along with the seemingly inadmissible and prejudicial evidence of the school counsellor, had the potential to operate unfairly against the interests of the applicant. As I have already noted, there was very little admissible independent evidence to support that of the complainants in respect of the counts upon which convictions were recorded; and it is clear from their verdicts that the jury were not prepared to accept uncritically the evidence of C and S, because they entered verdicts of "not guilty" to counts 4, 5 and 6 (in respect of C) and counts 13 and 14 (in respect of S). The verdict of acquittal on count 8 was entered upon the judge's direction.

52. There would thus appear to have been a miscarriage of justice in the trial as a consequence of the misdirections to which I have referred, and the intrusion into the evidence of prejudicial and irrelevant material. However no specific objection was taken to her Honour's directions although counsel did complain of what he described as a "lack of balance" in respect of the directions on complaint. On the hearing of this appeal, counsel for the respondent (whilst contending that her Honour's directions were adequate) stressed that no specific exception had been taken to the directions which are now sought to be impugned. I will return to the consequences of these matters hereafter.

Ground 23 - "Prejudicial comment by Trial Judge"

57. Following the conclusion of evidence, and before counsel addressed the jury, there was discussion between her Honour and counsel about the nature of directions which the evidence would require the judge to give to the jury. In the course of that discussion her Honour read to counsel a pre-prepared extract of the directions which she said she proposed to give concerning "complaint evidence". Having done that she added:

She then recited what she proposed to say further. It was in the following form:

"It is sometimes said that a sexual complaint is very easy to make and very hard to disprove. Part of common human experience is, I suppose, the experience of the judge. I must say that I have not noticed it is particularly easy to make such allegations, to climb into a witness box and to be cross-examined in detail about a sexual complaint. The fact is that the complainants have now made these allegations, they have given their evidence, they have been cross-examined. You have seen them and heard them. The jury issue, the matter that is really for you, is to assess each of them and their evidence."

63. Trial counsel for the applicant took objection to this proposed comment, which her Honour said that she proposed to give following her directions in respect of "complaint". Counsel said that the comment:

"... sort of strays beyond the question of complaint."

After further consideration, counsel returned to the topic, submitting that her Honour's proposed comment "would be unfair..."; to which her Honour responded that she would be making it clear that "it's a comment of mine".

68. In the event, the learned judge did give the fore-shadowed directions to the jury, prefacing them with the remark: "... I give you another caution and again this is a comment of mine'. The directions given were substantially in the form to which I have referred in paragraph [15].

71. In this Court, Mr. Priest contended that this direction (or comment) was unnecessary and was prejudicial to the interests of the applicant. It was unnecessary, he submitted, because it was not a direction which was required in the circumstances to avoid a perceptible risk of miscarriage of justice[3]. The judge's comment, so Mr. Priest submitted, was not a comment on the facts of the case but was rather a gratuitous remark, calculated to inform the jury of a conclusion which they could safely draw in favour of the complainants, based on her own experience as a judge. This was in effect, so it was submitted, the "unauthorized entry of the judge into the arena". It was a comment, so it was put, which had the potential to bolster the credit of the complainants and was, thus, prejudicial to the defence case.

74. It is, I think, undesirable for judges to make comments, pertinent to the jury's function, which are claimed to be based upon the judge's experience in court. Such comments would be difficult for the jury to ignore because individual members of the jury would, normally , have no means of testing their validity. However, I do not accept the contention that the comments which the judge made, notwithstanding their undesirability, would have caused any miscarriage, because she had prefaced her remarks by telling the jury that they were a "comment" of hers; and she had already told them that they were not bound by any comment which she made to them. In my view there is nothing in this ground.

78. S. gave her evidence-in-chief by means of a pre-recorded "VATE tape"; a procedure introduced into this State in 1991 (s.37B Evidence Act 1958) enabling a young complainant's evidence-in-chief to be pre-recorded by video/audio means in an interview between the complainant and a police officer "prescribed" for the purpose. As this Court said in R. v. BAH[4], this procedure provided by s.37B "represents a significant departure from criminal procedure as recognized by the common law", in the sense that the critical evidence which is led by the prosecution will stand as the evidence-in-chief of the complainant. It is, therefore, not surprising that the Legislature has written into the statute certain procedural safeguards; whilst common law courts have grafted additional procedural safeguards onto those which have been included in the statutory provision. One such additional procedural safeguard is that the VATE tape is not to be provided to the jury in order that they should have unrestricted access to it during the course of their deliberations[5].

81. In this case, the jury was not given unrestricted access to the VATE tape when they retired to consider their verdict. However, after deliberating for some 2½ hours, the jury asked whether they could see "S's police interview again". The trial judge said "certainly"; and then and there the VATE tape of S's evidence was re-played to the jury; and they retired again at 4.08 p.m. No exception to this procedure was taken by counsel. At 5.30 p.m. the jury announced that they had arrived at their verdicts. Before the verdicts were taken, and in the absence of the jury, trial counsel for the applicant told the judge that, at about 4.30 p.m., he had spoken to her Honour's tipstaff and indicated to him that he wished to raise a matter with the Judge; namely that the VATE tape having been replayed to the jury, there should have been further directions from her Honour, as a matter of fairness, reminding the jury of the cross-examination of S. Counsel told the Judge that he had later received an intimation from her Honour that, in the absence of a specific request from the jury she would not be giving further directions. Her Honour said to counsel:

"I asked the jury if there was anything else they wanted, and they said No."

She then directed that the jury be brought in; and verdicts were taken.

86. It was submitted to this Court by counsel for the applicant that a miscarriage of justice had occurred in the events which had happened. Mr. Priest submitted that, upon counsel's request, the judge should have recalled the jury and summarized for them the cross-examination of S; or - at the very least - warned the jury against giving to the VATE tape disproportionate weight. Mr. Priest submitted that the applicant had been prejudiced by the judge's declining to take these steps, particularly because she had made little or no reference in her directions to the cross-examination of either complainant. He referred to a passage in my judgment in R. v. BAH[6] where the following comments were made:

"The playing back to the jury, at their request, of a video recording which forms the evidence-in-chief of a complainant is a matter under the discretionary control of the trial judge. It is part and parcel of the practice and procedure which the trial judge is bound to administer, as he or she does whenever the jury asks to be reminded of the evidence. Nevertheless, for the reasons adverted to in the authorities to which I have referred, caution should be exercised by judges in this State when faced with requests by juries to replay the video-taped evidence-in-chief of child complainants admitted pursuant to the provisions of s.37B of the Evidence Act. Generally speaking, in my view, the procedure outlined by the President of the Court of Appeal of Queensland in R. v. H[7] to which I have referred, should be followed in this State ... . Compliance with that procedure means that, in the event that the jury requests to be reminded of the complainant's evidence, or to review the video-tape, the judge should deal with the situation on the facts as they arise, bearing in mind that the maintenance of balance and fairness in the trial is the overriding consideration. If, after discussing the jury's request with counsel in open court and being careful ... not to intrude on the confidentiality of their deliberations, the judge decides to allow the jury to view the video-tape, it should be done in open court in the presence of the accused and counsel, and should be attended, at least, by a general warning of the type to which McMurdo, P. referred in R. v. H. ... . Whether fairness also requires the judge to remind the jury of the cross-examination and re-examination of the complainant will be a matter for the trial judge who is in the best position to determine whether that is necessary."[8]

90. I think Mr. Priest is right in his submission that insufficient was done by the trial judge to protect the interests of the applicant when acting upon the jury's request to have the VATE tape of S replayed. In my view the judge should, at the very least, have warned the jury that, because they were hearing the evidence-in-chief of S for the second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case (my emphasis). The emphasized passage was the "general warning" referred to by McMurdo, P. in the case of R. v. H., which is the warning which should be given (at the very least) when a jury requests to have replayed the VATE taped evidence-in-chief of a child complainant.

93. In concluding that there was a lack of balance and fairness in the procedure adopted by the judge in responding to the jury's request to have replayed to them the VATE tape of S's evidence-in-chief, I do not intend to impute any blame to the trial judge who, in this regard, appears to have been given very little assistance by counsel.

Consequences of counsel's failure to take exception about "complaint" directions

97. As I indicated in paragraph [14] no specific exception was taken by trial counsel for the applicant to the directions given by the judge in respect of "complaint"; which directions I have concluded were deficient. Generally speaking, a failure to take exception to directions given at trial (in particular where trial counsel is experienced) is an indication that no injustice was seen to flow from the directions given, and that the point which appears impressive on appeal had no significance, or no real significance, at trial[9]. However, there is, and can be, no inflexible rule; and where it appears to the appellate court that a miscarriage has been occasioned by erroneous directions; and that the failure to take exception has been due to the inexperience of counsel (as I think was the case here), the Court will not hesitate to intervene. In my view, grounds 2A and 3 have been made out. The convictions should be set aside, and there should be a new trial on the counts on which convictions were recorded.

101. I consider that for the reasons given by the learned President this appeal should be disposed of as he proposes.

105. I agree with the order proposed by the learned President and with the judgment he has given.

[1] Cf. R. v. Knigge [2003] VSCA 94; [2003] 6 V.R. 181 at 190 ff.

[3] Cf. R. v. Miletic [1997] 1 V.R. 593 at 605.

[4] [2002] VSCA 164; [2002] 5 V.R. 517 at 519.

[6] [2002] VSCA 164; [2002] 5 V.R. 517 at 522, para [11].

[7] [1999] 2 Qd.R. 283 at 291.

[8] Callaway, J.A. expressed his agreement with the guidance given to trial judges in this passage passage.

[9] R. v. Defrutos [1998] 2 V.R. 589 at 600 per Callaway, J.A.; R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355.