R v Olivar [2004] VSCA 41

R v Olivar [2004] VSCA 41 - VSCA 2004 case summary — Zoe

[24]

"Counsel: You were writing in your book about your birthday party and certain things that occurred at this birthday party? Witness: Yes. It is one of my little notes have [sic] disappeared over the time. There is actually a few pages missing in that book, if you don't know. There is. Counsel: Thank you very much. That, I would suggest to you, is the sum total of your written record of what happened on your birthday. What do you say about that? Witness: I say that I have kept quite a few little notebooks like that. Counsel: Thank you. Witness: That was dated in June [sic], so I could have written in another book about other things. Counsel: I said thank you. Witness: I actually don't know, because a lot of my things do go missing. I never had any privacy. He went through all my crap, so - and, like I said before, that his - where did you get that from? Counsel: (Indistinct). His Honour [mentioning counsel's name]: Counsel: It is a non-responsive answer. His Honour: What do you wish to say, please? Witness: I wish to say that diary had been missing and obviously he has had - that is where they got it from. Counsel: Your Honour ... His Honour: You have asked about this document. Counsel: Your Honour ... His Honour: And what is in this and what is not in the rest, and suggested that this is the only record that there is ... Counsel: Well, with respect ... His Honour: I will allow the witness to give her answer. Yes would you continue? Witness: There are a lot of things of mine that have gone missing, and he can't say that that is the only thing that I have written down on that date because where did he get that from? Obviously he has kept it. A lot of my things did go missing. There are pages that have been ripped out from that book. If you look, this is meant to be how many pages in the book, there isn't. There are things ripped out. His Honour: Yes, thank you. Counsel: Thank you, your Honour. Now, is there is any reason that you can tell us, please, why you haven't made a reference in that diary entry to this sexual assault you say that occurred? Witness: Because that was not the only diary that I kept."

[48]

"There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts, the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment of the complainant's failure to complain should include (as indeed s.36BD requires) that there may be 'good reasons why victims of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence'. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them; [case cited] that factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay [case cited] and it was imperative that a warning be given to the jury. 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, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation in 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."

[59]

"I give you a further direction in law in relation to the evidence of the complainant, May Olivar. There are a number of factors that you are to take into account in relation to her evidence. Firstly with respect to each count before you, apart from the admissions made on behalf of the accused, the prosecution relies entirely on the evidence of the complainant, to establish the elements of the prosecution case. There is no independent evidence to support the complainant's allegations and that is an important consideration for you to keep in mind. As I have already reminded you, it is alleged that these offences commenced in the period May 1992 to May 1993. The last offence is alleged to have been committed in the period September 1996 to December 1998. Had these allegations, in particular the allegations as to earlier conduct, been made earlier or shortly after they were said to have occurred, it would have been possible for the prosecution and the defence to conduct investigations into the surrounding circumstances, the physical circumstances, evidence as to where, for example, May Olivar was living, whether it was with her aunt or with her parents, might have been more readily available. Recollections might have been clearer. More specific dates might have enabled the accused to call alibi evidence. None of those things could be done, because of the delay. At the time of the alleged offences May Olivar was aged between 9 and 15 years. She is now almost 19. That is relevant to her observation, understanding and reaction to the events at the time. It is relevant now to the reliability of the complainant's recollection of the events. In the light of these considerations that are to be taken into account by you, I direct you, as a matter of law, that since there is no independent evidence that supports the allegations made against the accused, you should carefully scrutinise the complainant's evidence taking full account of the matters that I have drawn to your attention. However, after carefully scrutinising the evidence of the complainant and taking account of the evidence of the circumstances surrounding her account of events with great care, and any other factors that you consider to be relevant, including of course the evidence called by the defence, it remains open to you to be satisfied beyond reasonable doubt of the truth and accuracy of the evidence of May Olivar, or of portions of that evidence. If you so decide, then you can convict the accused on one or more or all of these counts, if you so decide."

At a glance

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Before

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Judgment (84 paragraphs)

Parties

Cases Cited (1)