R v Mazzolini [1999] VSCA 150

R v Mazzolini [1999] VSCA 150 - VSCA 1999 case summary — Zoe

[15]

The present application is complicated by a further factor. As argued orally before this Court (which reflected his written outline), counsel for the applicant accepted that "the trial judge did give a Longman-type direction" in relation to the issue of delay and sought to concentrate on other factors which it was said required further Longman-type warnings, especially the unusual circumstances in which the complaint first came to be made, coming after three months of constant questioning by the complainant's father. The concession deflected attention from the extended passage in the learned judge's charge which dealt with delay. However, in considering the whole of the charge and in particular that part which dealt with issues said to require warnings, the Court noticed that the particular section of the charge about which the concession was made might not satisfy the requirements laid down in Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79; R. v. Miletic [1997] 1 V.R. 593; Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427; R. v. Young [1998] 1 V.R. 402 and R. v. J. (No. 2) [1998] 3 V.R. 601 and other cases in which the relevant principle has been discussed. Consequently, however wide ground 2 might appear to be, the Court had heard no argument as to whether the first part of the so-called Longman warning had satisfied the relevant tests. As a result a letter was sent to the legal representatives of the parties seeking further submissions as to whether the charge in that respect had been inadequate, in particular pointing out that it might be said that the jury would consider that the trial judge's charge at that point to be mere comment and that he had not sufficiently given a warning with the authority of his office on the issue of delay. Some weeks later an exchange of written submissions on the point was completed. It may seem surprising that counsel both at the trial and on appeal (who were different) should not have previously taken exception to this part of the charge but to that aspect of the application it will be necessary to turn in due course.

[43]

In the subsequent period up to the time the complainant turned 16 there seemed no event and nothing in their relationship which might have impelled her to make complaint then, in the light of her failure to make any earlier complaint. As to her failure to make complaint after she had turned 16, in particular during the period of their affair and subsequent discovery, there seem to have been other possible reasons which to the jury might have justified her reluctance at that stage to make the accusation. The difficulties the complainant could be thought to have had in "putting in" the applicant might have resulted from the strong passion felt by her for the applicant during that period. Moreover that relationship did not come to an end because of some natural waning of affection or through disagreement but by reason solely of her father's intervention. However willing she was (and this may be doubted) to tell her father about her lawful relationship with the applicant, there might arguably have been a naturally greater reluctance to reveal facts going to illegal activities which might have led to charges against the applicant and his conviction. His anxiety on that score had, according to her, already been revealed when they had their last telephone conversation shortly after her father discovered the letters and he was reassured by her answer, at least according to her evidence. Her consistency might be said not to be surprising so that it took some time before she could change her mind. Why she did so is not clear, but it may be that the residue of her passion had worn off over those months or perhaps she no longer had the resolve to resist her father's constant badgering. Her unwillingness to tell all about these matters may be said to be confirmed by her breakdown at the police station, although the applicant says that points in the opposite direction. Unwillingness and hesitation of this kind need not, however, evidence untruthfulness, or at least the jury may have so concluded.

[52]

There is no doubt that on a number of crucial issues, especially matters such as delay and the like, the judge canvassed in detail the defects in the prosecution case and, as it seems to me, forcefully pointed out the dangers in accepting the evidence unless the jury was fully satisfied of the applicant's guilt to the required strict standard. Directions of that kind extended for what appears in over ten pages of the transcript of a relatively short charge. Thus he dealt with, in order, the lack of supporting or confirmatory evidence, making clear that there was no evidence other than that of the complainant to support the Crown case, then the fact that there had been a substantial delay between the time of the event alleged and the complainant's first raising of it, including the absence of any immediate complaint (with the statutory qualification), next the fact that the complaint came after a torrid relationship between the parties, and finally he turned to the fact that the complaint first arose after "extreme and relentless pressure from her father", as the judge described it. However, on the last issue the judge seemed to be more circumspect, not in the sense of his failing to describe the circumstances of the father's behaviour and its possible effect in most critical terms, but by saying that what he was about to say was "a comment of mine which you can reject". Having described the father's attitude as both "overbearing" and "badgering" such as "would have broken any 16-year old girl", he returned to the issue with further criticism of the circumstances concluding the reference by saying that "whether you agree with that comment is a matter for you. I am putting it to you, it is for you to evaluate this evidence ...". If these words stood on their own, then I would doubt that they would have been sufficient to satisfy the requirements of a Longman warning for it is of the essence of that kind of warning, as I would understand it, that the judge give the authority of judicial office to any warning about the danger of convicting upon material which gives rise to the need for such a warning: Longman at 90-91 and Miletic at 605-606. But the judge said a great deal more in the course of his charge.

[54]

Although there is no precise formula to be used when giving a Longman warning, the essence of the rule is that the jury should firmly be told in effect that it is dangerous or unsafe to convict in the stated circumstances unless the jury, having scrutinised the evidence with the greatest of care, are nevertheless satisfied of the truth and accuracy of that evidence: Longman at 91. However, as was there stated, the precise range of circumstances which bring with them the need to give a Longman warning are not yet defined with certainty (see also Robinson v. The Queen [1999] HCA 42 at para.[19]), nor, as I understand the reasoning in Longman, are they likely to be, for the problem arises most frequently where there is essentially but one prosecution witness to the acts charged and where the circumstances are such that a jury may not have a full appreciation, even with the benefit of their width of representation, of particular aspects of unreliability to which the judge should draw attention. Thus, if the criticism can be seen to be obvious to the members of the jury and where counsel has drawn attention to the deficiencies in the course of address, then ordinarily an appreciation of the strength and weaknesses of a particular witness's evidence can fairly be left to the jury without special warning. The fact originally here relied upon was the badgering of the complainant's father extending over more than three months, said to have given rise to a false complaint. As will be seen, I am by no means certain that the jury were not fully able to comprehend the risks inherent in the situation where a father constantly asks questions of his 16-year-old daughter as to a sexual relationship. Now argument for the applicant ranges over the whole of that part of the charge which deals with those subjects which might be thought to require Longman directions. In particular the judge's directions as to delay are said to be insufficient, failing in particular to bear the stamp of judicial authority upon them.

[65]

The distinction between a warning and a comment, so carefully drawn by the majority of the High Court in Longman and equally clearly accepted by this Court in Miletic, requires some further consideration, for it seems to me that subsequently the significance of that distinction may have been overlooked from time to time. One starts with the premise that, although what the majority there said is of general application at least where there is only one Crown witness to an alleged offence, the reason for the High Court's examination of the relevant principles was the restriction by the Western Australian legislature, in line with that of other States, of the judge's power to give direction as to the corroboration of complainants in sexual cases. The absence, or possible absence, of strictly corroborative evidence of a complainant's allegations could and can no longer be the subject of a warning of the kind required to be given over a period of a century or more: for a history of corroboration see Rosemeyer [1985] VicRp 90; [1985] V.R. 945 at 960-966, cited with apparent approval by Dawson and Gaudron, JJ. in Pollitt v. The Queen [1992] HCA 35; (1992) 174 C.L.R. 558 at 599. It had been accepted that since legislation on the subject had been passed in the various jurisdictions that, though a warning could not be given, a comment could be made as to the risk of accepting a complainant's version of events if it were not independently confirmed. The significant but obvious point made by Longman was that in the type of case dealt with by the statutory amendments there may always be other circumstances which will, if they exist, justify the giving of a warning as to the danger of convicting where the evidence may be so tainted. The subsidiary point was that, although a judge must not give a warning against accepting the uncorroborated evidence of a complainant as such, comments may still be made by the presiding judge so long as they are fairly balanced (at 90-91) and so long as they do not "convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which [the section] eliminates" (at 87-88).

[75]

That kind of delay, however, is to be contrasted with the vices and consequences of the kinds of delay which the High Court said in Longman required a considered warning that it would be "dangerous" or unsafe to convict an accused on the complainant's evidence alone unless the jury, having scrutinised the evidence with great care, were satisfied of the truth and accuracy of that evidence: at 91. So it was not so much the failure to make complaint promptly which was there significant (and which was there said to justify a balanced comment: at 90-91), but what was important and what will continue to be important are the consequences of delay which resulted and result in an accused's "loss of those means of testing the complainant's allegations which would have been open to him had there been no delay": at 91. In effect the majority in Longman took into account the aspects of delay which affected the ability of the accused to conduct his defence including any resulting inability to test the complainant's allegations and to recall and obtain evidence to rebut the prosecution case. These matters, and any other significant incidental consequences of delay, are quite different in character from any arguments based on the supposed unreliability of a complaint which the complainant, for good reason or bad, has failed to allege promptly but within what otherwise might have seemed a reasonable period. Although a full Longman warning goes in general to the credibility of the Crown case and in particular to that of the complainant, it is the difficulties of the accused in meeting that case which must justify the warning, for these are the facts and matters which a jury would not ordinarily understand or appreciate without the benefit of a judicial warning. I should add that the expression "delay in prosecution" which appears on both pp.90 and 91 of Longman, cannot be limited to the time between complaint and trial or to matters arising only out of a long delayed trial, for the issues to which the majority drew particular attention were difficulties for an accused which arise out of delay up to the time that the complaint is first made known, being difficulties of a kind which, as I have mentioned, may arise out of a delay for a much shorter period and which might not necessarily be seen to affect recollection.

[87]

It seems that the learned trial judge willingly accepted the need for a Longman-type warning, primarily because of the delay, the badgering of the complainant by her father and the fact that there was no confirmatory evidence. He drew attention, inter alia, to the passing of nearly three years before the complaint was made, the loss by the police of the capacity to investigate the complaint properly, the loss by the applicant of an opportunity to establish facts which might have helped his defence (e.g. from the complainant's mother), the fact that the complainant made no contemporaneous statement, and the fact that she was four years older by the time of trial. The last two facts in particular meant that there was a risk that her emotions or imagination may have rendered her recollection inaccurate. For myself I would not think that this effect of delay and its potential detriment to her credibility took the case beyond the ordinary consequences of any significant delay in making complaint, allowing for the fact that delay was dealt with appropriately from the viewpoint of the accused, inasmuch as the necessary balancing remarks were heavily tilted in favour of the applicant. However, the trial judge saw it necessary to give Longman-type directions on the general question of the effects of delay between the alleged offence and the making of the allegation as possibly prejudicing the applicant's fair trial. Those effects on the conduct of the applicant's defence were fairly described in the judge's charge. In these circumstances I would not disagree with his assessment of the case as a whole for he was present, heard the evidence and was best able to assess the manner in which that evidence was given and its apparent effect. I would therefore accept that there was a need to give appropriate directions of the kind contemplated by Longman. However, the circumstances of the delay cannot be compared with those in Longman and I would not encourage trial judges to see a need for directions of the Longman kind in relation to a three year delay unless they perceive some aspect of that delay which takes it outside ordinary human experience. Conceding that it will be the justice of the case which will ordinarily dictate what should be done, a proliferation of warnings may be counter-productive leaving the jury unable to concentrate on the dangers of evidence which could be truly prejudicial.

[88]

The other aspect of the case which the applicant said required a Longman-type direction was the series of circumstances by which the complaint came to be made by the complainant and in particular the extensive detailed and gruelling questioning by her father before that complaint first came to light. There is no doubt that these circumstances are, to a degree, unusual in that they would in the ordinary course of events have provided reason why the jury should have hesitated in concluding that the applicant was guilty of the offence charged. The question, however, is whether a full warning of the type described in Longman (at 91) had to be given. The circumstances, of course, bore also on the issue of delay in making complaint in respect of which the balancing warning (or "informing") required by statute had to be and was given. But it was fairly contended that the circumstances leading to complaint, as opposed to mere delay, were sufficiently out of the ordinary to require a warning in the light of the fact that there was no other person present at the time of the incidents which were alleged against the applicant. I take leave to doubt that they were of the kind which require a warning. The issue in each case, outside the recognised categories which have been thought to satisfy the test, is whether those circumstances are outside the ability of a jury to assess for themselves, at least with the benefit of counsel's addresses, and where the full significance of those circumstances may be more apparent to the judge than the jury: Miletic at 606; R. v. J. [No. 2] at 636: cf. Robinson, where the jury had the benefit of only a three minute address by counsel for the accused: at para.[10]. It was said in Miletic at 606: "It is only in exceptional cases that a warning is required", those circumstances ordinarily being such that a jury could not evaluate them for themselves because of the effect "might not have been apparent to laymen unfamiliar with the way in which a criminal trial is prepared and conducted": Miletic at 604. Those circumstances in the present case were, as I have said, unusual and might tend toward the manufacture of untrue allegations to satisfy the father's obsessive questioning, but were they facts or circumstances which a jury in this case could not appreciate for themselves and were they circumstances about which a judge would have any special knowledge which would require a warning of the kind prescribed in Longman? Doubtless from time to time judges come across allegations invented as a result of pressure from relatives or friends but there is nothing to my way of thinking about a judge's knowledge of such allegations and their effect which would be outside the range of knowledge which could fairly be attributed to a group of twelve people in a jury room. Nor do such allegations pose problems for a jury the significance of which might not be apparent to the extent that would call for a Longman warning. The only danger, which I would see, other than that which is apparent, would be that which flowed from delay which might properly be the subject of a Longman warning and which indeed was the basis upon which the majority there held it to be necessary.

[139]

In the end, having regard to the structure and content of the learned judge's charge to the jury, I am not persuaded that it failed to give effect to the requirements of cases such as Longman. The object of the judge, as I have perceived it, was not merely to describe the evidence or particular parts of the evidence and make comments upon it; it was to give appropriate directions as to those aspects of the prosecution case which might be said to take it out of the ordinary and, in the light of Longman and later cases, to require some special directions as to how the jury should deal with that evidence both separately and as a whole. For this purpose both the form and effect of the relevant parts of the charge must be looked at. To the extent that the circumstances here required a Longman-type comment or warning (and both are referred to in that case), then it may be said that, in relation to each aspect of the case about which complaint is made, there was no explicit statement that it was "dangerous" or "unsafe" to convict unless full and careful scrutiny were given to the impugned evidence. Earlier I said that what I was party to in the judgments in Young and Jolly may have overstated what the nature of the requirement is. It is the danger of bringing in a conviction without paying sufficient attention to these supposed weaknesses in the evidence which in the charge must be emphasised by the judge in terms bearing the stamp of judicial authority. As has been said on numerous occasions, no particular "formula" has been prescribed, so that it is the overall effect and the clear signification that the judge's authority lies behind the directions or warnings given that is essential. Whatever be the conclusion in the present case, I nevertheless would suggest that where a full Longman warning is required the preferable course is to direct the jury in substance that it would be dangerous or unsafe to convict unless, having scrutinised the relevant evidence with great care, they were satisfied of its truth and accuracy. The words "danger" or "dangerous" (or even "unsafe") seem to give to a warning the sense of urgency and emphasis it requires, and so has been used for many years and still is used where a précis is given of the required effect: see e.g. Longman at 91; McKinney at 476; R. v. Robertson [1998] 4 V.R. 30 at 37.

[140]

In the present case it is the overall effect of what the judge said in the course of his charge which must be considered. The precise language adopted may not have satisfied the more stringent terms of what is required in a true Longman warning but, apart from questions as to whether such warnings were in fact necessary in this case, I have in the end come to the conclusion that what the judge said about each of these matters was sufficient. There were a few occasions when the judge, perhaps incautiously but nevertheless accurately, introduced some of his observations by using the word "comment". That he was entitled to do and in my opinion he was simply making clear, in the course of what effectively were directions as to the use of particular kinds of evidence, that part of the charge which was merely comment on the facts. If anything were to be inferred, I would infer that what was introduced with the word "comment" was so introduced to distinguish that sentence or few sentences from the instructions he was otherwise giving the jury. As to each class of evidence, nevertheless, he was essentially directing the jury in what were apparently mandatory terms as to the manner in which they should approach that evidence. The "caution" and the warnings were perhaps stronger at the beginning of the ten pages in question than towards the end. That, I consider was largely the result of his choosing first to discuss what flowed from the fact that the case depended essentially on the evidence of the complainant alone. That factor, as I would understand the reasoning in Longman and the other cases, cannot in itself ordinarily require the giving of a Longman warning. To do so would effectively subvert the intent and purpose of s.61, so that warnings on that issue, if not clearly related to other bases justifying Longman-type directions, might appear to suggest that the courts were still viewing complainants in sexual cases as witnesses whose truthfulness ought to be doubted, the very factor which might, if it were true, suggest that complainants in these cases were still being treated with unfair suspicion by the law.

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