R v MWL [2002] VSCA 221

15. The offences were alleged to have occurred between 1981 and 1988 when the applicant was aged between 23 and 30 years and the complainants, who were born within two years of each other, were of various ages between 8 and 15 years. The complaints were not reported to the police until 2000.

18. The Crown case included the evidence of the three complainants. For present purposes, it is not necessary to recount their evidence. The prosecutor called the mother of the complainants, who said she could not recall complaints about the applicant's sexual misconduct, which her daughter and son said they had made to her. The father of the complainants and the policeman in charge of the investigation into the complaints also gave evidence. The applicant gave evidence denying the complainants' allegations and called a number of witnesses who attested to his good character. The defence also called as witnesses the applicant's wife, sister and son, who supported the evidence given by the applicant.

21. 6 The jury returned verdicts of guilty to all but two counts of indecent assault and one count of gross indecency. The applicant was sentenced to be imprisoned for a term of 12 months on one count of indecent assault and on each of three counts of gross indecency, for a term of 18 months on each of five counts of indecent assault and one count of gross indecency and for a term of two years on each of five counts of indecent assault, each of two counts of gross indecency and the count of sexual penetration. A measure of cumulation produced a total effective sentence of seven years and six months' imprisonment. The sentencing judge fixed a period of four years before the applicant was to be eligible for parole.

24. The applicant seeks leave to appeal against his conviction. At the invitation of the Court counsel for the parties made submissions with respect to three only of the grounds of appeal. Those grounds were:

"3. The trial miscarried as a result of the trial judge giving directions to the jury which were irrelevant to the case and highly prejudicial to the applicant; and in particular, he directed that - (a) `generally speaking crimes of a sexual nature as are alleged in this trial are by and large secret crimes ...'; (b) `we know from our own experience that so called pillars of society have been involved with sexual crimes involving children, leaders of our community, politicians, even members of the clergy, and people are often shocked by those revelations, believing that these sort of people have led exemplary lives ...' (c) `we know from our experience that sometimes these people lead double lives.' 6B. The trial judge erred in his directions concerning delay; and in particular - (a) he failed to direct the jury sufficiently or at all that it would be dangerous to convict on the evidence of a complainant alone; (b) he failed to warn the jury of the risks of a miscarriage of justice in such a case; (c) the effect of any direction, comment or warning substantially or wholly diminished by the direction of the police `have lost the ability to investigate the matter soon after the events', and `have lost the chance of further questioning a complainant'; (d) such directions as were given were apt to cast an onus of disproof on the applicant. 7. The trial judge erred in the directions concerning recent complaint; and in particular he directed that - (a) what is meant by fresh complaint is the `ability' of a person to complain at the earliest opportunity; (b) the `experience of the law confirms that complaints are not always made immediately after sexual assault'."

29. The statements of the trial judge attacked in ground 3 were made at the outset of the charge to the jury. His Honour said:

"Consistent with what I have just told you it comes as no surprise to you to learn, of course, that generally speaking crimes of a sexual nature as are alleged in this trial are by and large secret crimes by their very nature. In other words you seldom would expect to hear from an eye witness to crimes involving sexual abuse of children, and we know from our experience that in this day and age or even over the decades that so-called pillars of society have been involved with sexual crimes involving children, leaders of our community, politicians, even members of the clergy, and people are often shocked by those revelations, believing that those sort of people have led exemplary lives. They do on the surface, but we now we (sic) know from our experience that sometimes these people lead double lives."

33. The statements occurred in the midst of directions as to the manner in which the jury should evaluate the evidence of witnesses. The impugned words were immediately preceded by directions that the jurors were to use their common sense and experience of life in determining the facts and that they could choose to accept or reject parts of the testimony of a witness, and were immediately succeeded by directions that the jury were to consider whether a witness had an interest to promote or was in one camp or another, and other like directions. Although elsewhere in his charge the trial judge told the jury that they could disregard his comments as to the facts as distinct from directions as to the law, his Honour did not tell the jury that the impugned statements fell into the first category. In the context in which the statements were made, I consider it is likely that the jury treated them as directions by which they were bound.

36. An important part of the applicant's case was that because he was a man of good character he was unlikely to have committed the offences with which he was charged. The trial judge undermined that defence and did so in a manner which was likely to cause a miscarriage of justice. The trial judge invited the jury to view persons of apparently good character with suspicion. Apart from the fact, that in my view, there was a palpable danger of the jury treating the comments as directions as to the law, the trial judge's references to what was known from experience over the decades may have caused the jury to think that the judge's views represented the distilled knowledge of the courts gained from their experience of conducting criminal trials.

39. Counsel for the applicant at trial took no exception to this part of the charge. In Clarke v. Johnstone[1], where the Full Court followed the general rule that an applicant for leave to appeal against conviction is not allowed to rely on appeal on a criticism of the charge, which had not been taken by way of exception at the trial, the Court spoke of the duty of counsel "to ensure that any errors are drawn to the attention of the trial judge so that he may correct them."[2] In the present case, I doubt that anything the trial judge could have said would have undone the effect of his statements rather than emphasize their damaging effect. I regard the statements as so clearly damaging to the applicant's case that the failure to take exception does not lead me to conclude that there was no injustice because counsel steeped in the atmosphere of the trial saw no error. In my view, the statements did lead to a miscarriage of justice.

43. The events alleged to constitute the offences occurred between 13 to 20 years before the trial, and at the time of those events the complainants were children or adolescents. A warning that in the circumstances of this particular case it was unsafe to convict on the uncorroborated evidence of the complainants was appropriate[3], and the trial judge was required to alert the jury to the difficulties for the defence posed by the delay of bringing the case against the applicant. In Crampton v. R.[4] Gaudron, Gummow and Callinan, JJ. said:

"An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognize and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years it will be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury."

47. The trial judge told the jury of the long delay between the alleged commission of the offences and the report of the complainants to the police. He spoke of the frailty of memory and said:

"The difficulty in remembering, of course, applies not only to the witnesses, but it also applies to the accused. The delay also means that there has been no statement taken from any of the complainants soon after the events which they have alleged. The police were not brought into the act until 2000, so the police have lost the ability to investigate the matter soon after the events allegedly occurred, or locate possible witnesses who may be able to give relevant evidence. They have lost the chance of further questioning a particular complainant to ascertain whether their story is consistent or whether it is inconsistent. Not only have the police lost that chance, but of course the accused has lost the chance to establish facts and circumstances that might help him to disprove - I use disprove in a special way, because he has no obligation to disprove, but to, if you like, dispute the complainants' allegations and the more so when a number of the counts which originally were on the presentment have been amending by altering the time frames. Because there was no statement taken from any of these complainants at or about the time they say the events occurred, it is difficult to assess how that particular complainant as a child understood and recalled the events that occurred as a child."

The trial judge then made observations as to the use the jury could make of recent complaint. The nearest his Honour came to warning the jury of the danger of convicting the applicant on the uncorroborated evidence of the complainants was to say:

"So, members of the jury, the circumstances to which I have adverted, that is the delay involved here, the nature of the allegations, the age of the complainants at the particular time, the problem of memory and faulty recollections, the matters of complaint, all those matters may point to the potential for error inherent in the evidence. I emphasize that I say potential for error. I am not saying that there is error. Questions of the assessment of the evidence are very much a matter for you, and the existence of the matters to which I have referred, however, are such that I as the trial judge are bound to tell you to give judicial authority to the comment that those circumstances must be earnestly considered by you."

53. In my opinion the foregoing directions were inadequate. While the judge did tell the jury that the delay between the time at which the offences were alleged to have been committed and trial prejudiced the applicant, in my view he did not adequately acquaint the jury with the danger created by the delay. His brief statement of losing the chance to establish facts is to be contrasted with the statement of Brennan, Dawson and Toohey, JJ. in Longman v. R[5]. that:

"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."

57. His Honour first instructed the jury that the delay similarly handicapped the police in investigating the complaints. I doubt that the jury would have interpreted that statement as one directed to efforts by the police to critically examine the complaints rather than gather further evidence supporting the complainants. In my view, the explanation of the difficulties imposed upon the defence by delay was significantly diluted by a statement, which the jury may well have construed as excusing any deficiencies in the Crown case. Further, the warning, which the High Court has said is required in like circumstances, was reduced from one of the danger of convicting the applicant to a somewhat vague statement of the lapse of time creating a potential for error.[6]

60. After exception by counsel for the applicant, the trial judge gave a redirection to the jury. He said:

"In a case such as this where you have a situation of one person's word against the others, it is dangerous to convict without the presence of some other evidence which confirms or supports the particular complainant's evidence, and as I have told you that does not mean that you cannot convict in the absence of other evidence which confirms or supports a particular complainant's version. It simply means that you can only do so after carefully scrutinizing that complainant's evidence and you are satisfied as to its truth and accuracy."

In my view, that statement did not remedy the deficiencies in his Honour's earlier Longman warning. The problem to be met by a direction was not that this was a case of one person's word against another's, but that the lapse of time had imperilled the fairness of the trial by handicapping the plaintiff in properly mounting his defence.

65. Exception was taken to the redirection. Counsel reminded the trial judge that "the Longman warning is based upon an inability for an accused to meet the case by reason of the time delay." The trial judge refused to give a further redirection.

69. Section 61(1)(b) of the Crimes Act 1958 provides that if, in a trial of a person for a sexual offence, it is suggested that there was delay in making a complaint, the judge must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it. Notwithstanding that provision, delay in complaining may cast doubt upon the reliability of the evidence of the complainant, and in an appropriate case a trial judge may properly direct a jury that lack of or delay in complaint is to be taken into account in assessing a complainant's credibility.[7]

72. The trial judge dealt with the delay in complaint in the following manner, saying:

"First of all, I must tell you that any delay in complaining, or failure to complain, does not necessarily indicate that the allegations are false. The mere fact that someone does not complain, or delays complaining, does not mean the allegations they make are false. There may be good reasons for a person who has been sexually assaulted to hesitate or refrain from complaining about it. The experience of the law confirms that complaints are not made immediately after sexual assaults. So the mere absence of a complaint, or delay in complaint, does not conclude the matter. There are obviously cases where the relationship of the parties, or the personality of the alleged victim, the complainant, make it less likely or more likely that a complaint would have been made or would have been delayed. It depends on many things. If the circumstances are such that you would expect an alleged victim to complain, then the absence of that complaint may be used by you in assessing the creditworthiness of that person as a witness. It is for you to say in any particular case whether in all the circumstances the presence or the absence of a timely complaint does constitute behaviour which is either consistent or inconsistent with the happening of the offence.'

76. Counsel for the applicant concentrated upon the sentence, "The experience of the law confirms that complaints are not always made immediately after sexual assaults", submitting that its effect was to withdraw from the jury any issue of credibility flowing from delay in complaint. Counsel contended that it was wrong to speak of "the experience of the law", for the effect of the delay was a matter to be evaluated by the jury according to their own common sense and experience.

79. In isolation, the sentence complained of may be said to have the potential to cause a jury to disregard delay in complaint. When it is placed in its context, however, I do not consider that the sentence in this case would have had that effect. The impugned sentence was immediately succeeded by reference to the factors, which the jury were to consider as bearing upon the question whether they would expect the complainants to have complained. In my opinion, the jury would have understood that they were to decide whether in this case the delay in complaint reflected adversely upon the complainant's credibility and would not have been deflected from exercising their own judgment by the statement that the experience of the law was that complaints "are not always made immediately ...". (My italics.) The statement was, I think, likely to have been viewed by the jury as no more than a reiteration of the immediately preceding sentence. Counsel for the applicant at the trial did not view the statement as unwarranted and damaging to his client, for he took no exception to it. Overall, I consider that the trial judge appropriately balanced the direction required by s.61(1)(b) with a direction that the jury were entitled to view the delay as bearing adversely upon the credit of the complainant.

82. For the foregoing reasons, I am of the opinion that grounds 3 and 6B have been established. I would grant the application for leave to appeal, determine the appeal instanter, allow the appeal and order that there be a re-trial.

[1] [1986] VicRp 64; [1986] V.R. 643.

[2] Above at 661. See also General Motors-Holdens Pty. Ltd. v. Moularas [1964] HCA 39; (1964) 111 C.L.R. 234 at 242 per Barwick, C.J.

[3] Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79.

[6] See also R. v. Hyatt [1998] 4 V.R. 182 at 189-90 per Winneke, P.

[7] See Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427; R. v. Rodriguez [1998] 2 V.R. 167 at 174-5 per Charles, J.A.; R. v. TJB [1998] 4 V.R. 621 at 634 per Callaway, J.A.