R v MTP [2002] VSCA 81

26. Various other matters came out in the course of both the interviews and cross-examination. The complainant ordinarily lived with her father but saw her mother regularly and these offences occurred during an access visit. The applicant was 28 years old at the time but in interviews described later in the evidence he had denied that any improper conduct had taken place. The complainant said in cross-examination that she hoped her parents would re-unite but understood this to be unlikely and said that it certainly would not occur while her mother was in her present relationship. She conceded that she felt unfairly disciplined by the applicant although she was quite happy to have two little "brothers" and did not feel that undue attention had been placed on them by her mother. At her mother's place she had to do everything for herself. She had not originally minded being cuddled by the applicant as she had formerly trusted him. She denied ever asking the applicant to tickle her nor could she recall being reprimanded for showing off parts of her body. The complainant said she was "a bit confused" about what had happened in relation to the events constituting the allegation in counts 1 and 2 but that she had felt uncomfortable with what the applicant had done. She had not liked it on the first occasion and did not like it on the second. She denied asking the applicant repeatedly to tickle her and to lick her or any conversation relating to those subjects. After the applicant had touched her on the second occasion she was "too scared" to move away from the couch as she did not know what he was going to do or what he was going to say. The complainant said, after discussing the events relating to count 2, that she thought whether she should tell her mother or not and was concerned as to what she was going to say. In consequence she "just let it go, you know".

29. There was in addition evidence called as to complaints made by the complainant to her friend AJC and the friend's mother MLP. Those complaints were made on 3rd January 2000 the day after the last of the incidents. Having regard to the limited purpose for which complaint evidence may be used, it is not necessary to go over that evidence in detail as, apart from one question to the mother of AJC, there were no suggestions made as to inconsistency or the like. AJC said that she was ten and in addition stated that, in the course of telling the events to her, the complainant had seemed very sad and then began crying. She had informed AJC that her mother did not know of these allegations. Shortly afterwards the complainant made a similar complaint to MLP and again the details are not presently significant. In any event the mother said that the complainant started crying and then became too distressed to give further details of the events. The complainant had told MLP that she had not told her mother because she did not want to cause any trouble and that initially she was reluctant to call her father for the same reason. Eventually, it seems that at the suggestion of MLP, the complainant telephoned both "Kids Helpline" and her father.

32. The only other evidence came from a police officer who had conducted two interviews with the applicant, each of which were played to the jury. The applicant had been co-operative during both interviews but had denied the allegations. As to the first two events, which were the subject of an interview with him on 14th February 2000 after the VATE interview of the complainant had been conducted, the applicant had admitted touching her back on occasions but never rubbing her lower back or any part of her body below that. He said that all the allegations were false and suggested that the complainant had a crush on him, not on her father, or that she was disgruntled with her mother. At the interview with him conducted in relation to the final events, which interview was conducted on 13th January 2000, the applicant admitted he had been on the couch in the dining room with the complainant but that there was no incident. He admitted that at times he had tickled the complainant but only on her back, belly, legs or arms and denied any sexual assault or improper conduct. He said the complainant had been lying. No evidence was called on behalf of the applicant.

35. Turning to the contentions of counsel on behalf of the applicant, I shall deal with them in the order they appear in the amended ground 2, although counsel's argument tended to concentrate on two or three primary issues. In general, it should be emphasised that counsel argued that the convictions were unsafe and unsatisfactory in the light of each of the factors upon which he relied, both individually and cumulatively. In the first place, counsel relied on the absence of corroborating or confirmatory evidence, but more particularly complained as to the judge's charge relating to the VATE interview, although strictly no such contention had been put forward at any time as a ground. In substance counsel said that the judge's charge on the manner in which the jury should approach the allegations made and the sufficiency of the complainant's evidence to establish the case was deficient, especially in circumstances where it had been given by the VATE procedure. It was argued that a very strong warning was required, particularly in the light of the observations made in R. v. NRC[4]. It is first necessary to set out what the judge in fact said. After dealing with the onus of proof which rested on the Crown and after pointing out clearly that the only witness and indeed the only evidence in support of the case was that of the complainant, the judge said this:

"You should look at all the circumstances in which it is alleged the offences were committed and bear clearly in mind that it is not necessary as a matter of law to have such supporting evidence, but I direct you that, to fulfil your duty of fact-finding, you must be fully aware of the danger of convicting on the evidence of the complainant alone unless, having scrutinised her evidence with great care and with great caution, you are satisfied of its truth and accuracy and are satisfied to reject [the applicant's] denials in the record of interview. If you are, you are bound to convict on the count that you are then considering. You must consider the whole picture of the count which you are considering, the whole of the evidence relating to that count, and unless, having done that, you are satisfied beyond reasonable doubt that all the elements of the particular count have been proved, then [the applicant] is entitled to [be] acquitted. On each of the three counts the prosecution relies solely on the evidence of [the complainant], but I remind you it is for you to assess her. You have seen her, you have heard her, you have heard her tested in cross-examination." (Emphasis added.)

39. The reference to "supporting evidence" in the passage I have read was a reference to the fact that the judge had described in some detail the absence of any additional supporting evidence of the kind which could be described as corroborative or confirmatory, and, as has been seen, the judge made entirely clear to the jury that there was only the evidence of the complainant upon which the Crown could rely to establish its case.

42. In my opinion the judge's charge was entirely appropriate and gave sufficient warning of the dangers of convicting in the circumstances described. In no way was the warning inconsistent with what had been said by Winneke, P. in NRC at para.[32], where he had stated in relation to VATE interviews:

"In my view the circumstances of this case required a very clear warning, carrying with it the authority of the judicial office, that it would be dangerous to convict the accused on the uncorroborated evidence of the complainant, unless after thorough scrutiny of that evidence and paying heed to the warning which the judge was giving, they were convinced of its truth and accuracy."

Essentially this was what the judge was saying to the jury in the present case, for the critical thing is to warn the jury of the danger of so convicting and the need to scrutinise the evidence with great care and caution, in terms which make it clear, as occurred in this case, that the judge was directing them to adopt that approach.

47. Even if it be perceived that the warning suggested by the President in NRC was more stringent, the facts in that case were very different from the present. The complainant was five years old in NRC and her cross-examination took place when she was still seven years of age, whereas here the ages were nine and eleven years of age respectively. Although each case involved the giving of evidence by use of a VATE interview of a young complainant, the circumstances of the interview in NRC were very different, in that, in the first place, it was made a considerable time after the events which gave rise to the allegations and after many prior interviews, secondly, many of the allegations were elicited by leading questions and, finally, there was in effect no real cross-examination of the complainant in the circumstances of that case. In this case the interviews were made promptly, indeed they were effectively the first interviews made by the police in relation to each set of allegations, within a day or so in the case of one, within a few weeks in the case of the other, the questions were almost entirely in proper form and there was extensive cross-examination of the complainant. There is nothing exceptionally unusual about the absence of corroborative or, more relevantly, confirmatory evidence in cases involving allegations of this kind, but the judge made clear the dangers of relying on it. This aspect of the applicant's contentions cannot be accepted, nor can his contentions that the facts were sufficiently similar to require the judge to have given a more stringent warning than in fact he gave. Although counsel suggested that the direction was weak and lacked sufficient emphasis, the relevant passage set out above[5]

contained the essential elements of a full and proper warning in the words emphasised and counsel were forced to a contention that he should have used the words "dangerous to convict" rather than warning of the "danger of convicting". In my opinion that is a distinction without a difference and there must always be some flexibility in stating the warning.

52. Counsel invited the Court to lay down general propositions as to the warnings which judges should be required to give whenever evidence is given by use of the VATE procedure. His argument, not suggested by any of the applicant's grounds, was that every such case demanded a stringent warning as s.37B had so radically altered the common law of evidence that a failure to warn sufficiently, as asserted here, would naturally lead to the conclusion that the verdicts given were unsafe and unsatisfactory. For this purpose counsel relied on what had been said in NRC, although he seemed to concede that there was no authority generally on the issue. If there was no authority, so he contended, there should be and this Court should provide the necessary guidance.

55. The weakness in counsel's argument is that there is authority in this State, in the form of the decision in NRC, but it does not support any such broad proposition. Indeed, the learned President (in whose judgment on the issue Charles and Chernov, JJ.A. concurred) made clear that the need to give a warning in cases where the VATE procedure has been adopted must depend on the circumstances of each case, when he said[6]:

"The comments [i.e. as to the need to give an appropriate warning] which I have made should not be interpreted as meaning that in every case where the procedures prescribed by s.37B of the Evidence Act are employed, the judge will be obliged to give the warning which, in my view, should have been given in this case. Each case will depend on its own facts and there will no doubt be many cases where there will be no relevant unfairness simply because the evidence-in-chief has been given by means of the `VATE procedure'. The statute contemplates that the procedure can be adopted in the prescribed cases where the witness is `under the age of 18 years', and thus contemplates that there will be many witnesses who are competent to give their evidence under oath and will be capable of being properly adequately tested by cross-examination."

It will be seen that the President placed particular emphasis, properly in my respectful opinion, upon the ability of counsel adequately to cross-examine the witness once the evidence had been given pursuant to s.37B. Although the mode of giving evidence in such cases is not unimportant[7], the capacity to test the veracity and accuracy of testimony is fundamental to an assessment of its reliability. If, as in NRC, no effective or satisfactory means of cross-examination is available, doubtless an emphatic warning should be given to the jury who may not be able to grasp fully the significance of that aspect of the litigious process.[8] But where, as here, cross-examination can and does take place without apparent hindrance, the other problems arising out of the use of the VATE procedure, such as the absence of oath or affirmation and its recording away from the discipline of the court room, may be seen to be of lesser significance. The capacity of counsel to cross-examine the complainant and the fact that that cross-examination took place for a considerable period, together with the other differences which I have already mentioned, make this case clearly distinguishable from NRC and other similar cases which the President had in mind, so that it would appear that no special direction was required. It is unnecessary to go further in the present case: indeed it is unnecessary to reach a final conclusion as to whether the warning in fact given was essential. That warning having been given in clear terms, it is not necessary, in my view, to say more than that no miscarriage of justice resulted from what the judge did, nor could it be fairly said that the verdicts for that reason were unsafe or unsatisfactory. I would add that no objection was made, either when the judge foreshadowed the direction he proposed to give or after it was in fact given, to the direction given by the judge set out above, nor as to its description of the nature and significance of the VATE procedure, but I would prefer to rest my conclusions on the matters already referred to and not to express any conclusion on the lack of objection in this kind of case. Consequently these aspects of grounds 2(a) and 3(b) have not been made out.

60. It is next necessary to deal with the basis of the argument referred to in ground 2(b) that the verdicts were unsafe and unsatisfactory inasmuch as it was asserted that the complainant had a motive to be hostile to the applicant. Of course, the issue here raised is not the motives, in the conventional sense, for committing a crime, but the motives of the complainant in making her complaint against the applicant. That is purely a question of fact. The judge in fact dealt as such with the contentions of the parties as to those motives briefly and in terms which did not draw any criticism at the trial. However, counsel appearing for the applicant at the trial intimated to the judge that he wished to raise the issue through evidence to be given by the applicant's mother, primarily asserting at that time that the Crown should have called her, although that does not now remain an aspect of the applicant's present application. The learned trial judge not only doubted the relevance of such evidence but thought it opened particular difficulties of a kind which he said he might have to raise with the jury.

63. Counsel on this application did not now support any contention that the Crown was obliged to call the complainant's mother. It is clear from cross-examination of the complainant herself that counsel thought himself at liberty to cross-examine her on the complainant's possible antipathy to his client and obtained answers largely accepting that the complainant had had some differences with her "stepfather" and with her mother on the same issue. If the judge's comment discouraged him from calling the mother, then he was by no means obliged to accept the judge's view, but he was surely correct to desist from any attempt to call the mother for the purpose of establishing motive, for reasons which need not here be elaborated. There is simply nothing in the point, nor otherwise in ground 2(b).

66. Finally counsel, without specifying which paragraphs of ground 2 were called in aid, asserted that there were five additional factors which rendered, at least in combination or in combination with the other matters already described, the verdicts unsafe as follows:

(1) The age of the complainant;

(2) The nature of the procedure to obtain VATE evidence, i.e. the "prepackaging" of the testimony outside the court's control;

(3) The order of the two VATE interviews and the delay before the making of the second tape (5½ weeks);

(4) The two years' delay between the making of the tapes and the trial; and

(5) The failure, if there was any, of the complainant to mention the earlier events during the first interview relating to the final incident.

72. For myself, I consider that none of the factors required any different treatment in the judge's charge than in fact they received, nor do they point to a conclusion that the evidence was sufficiently unsatisfactory to justify any additional warning. The first was obvious and otherwise discussed in the charge, the fifth was not in fact

accurate and points 3 and 4 were not of sufficient consequence to require any particular direction, i.e. they raised mere questions of fact. The second has already been discussed. In short there was nothing in any of these points which suggested on any basis that the learned judge was in error or that the trial miscarried. They cannot lead to any conclusion that the verdicts were unsafe and unsatisfactory. Therefore no part of ground 2 has been made out.

76. In consequence the application against conviction should be dismissed.

79. As to the application seeking leave to appeal against sentence, counsel fairly said that, on a ground alleging manifest excess, the argument did not ordinarily call for elaboration, unless it flowed from other specific errors which were not here asserted. He said the total term should have been wholly suspended, or at least all but three months should have been suspended. I cannot accept this contention. Each aspect of the sentence was well within the relevant range, having regard to the fact that for each offence the available maximum term was 10 years' imprisonment. I am not persuaded that the learned judge made any error in fixing the period of suspension or otherwise.

82. This latter application must also be dismissed.

87. I agree that the application for leave to appeal against conviction and the application for leave to appeal against sentence should each be dismissed. I do so for the reasons advanced by Ormiston, J.A. in his judgment.

[1] I use this expression though the applicant and his partner, the complainant's mother, had lived together for several years but were not married.

[3] See the provisions of s.37B of the Evidence Act 1958.

[4] [1999] VSCA 184; [1999] 3 V.R. 537.

[7] The President also referred to witnesses who were competent to give evidence under oath but no point was made in the present case as to the unreliability of the complainant's evidence on that ground.

[8] Warnings, as has been said on high authority on many occasions, are primarily designed to bring to the attention of juries aspects of evidence which members of the jury cannot be expected themselves to understand.