R v P J J [1998] VSCA 96

5. The trial, at which the applicant pleaded not guilty to all counts, lasted some six days. During its course the trial judge directed the jury to return verdicts of acquittal in respect of counts 5, 6, 7 and 8, which counts alleged, in the alternative, acts of incest and wilful indecency respectively said to have been committed between 26 and 29 August 1995 and between 30 October and 3 November 1995. The remaining counts which were left for the jury's consideration were:

count 1 - wilful commission of an indecent act between 1 April 1993 and 31 August 1993;

counts 2 and 3 - alternative counts of "digital incest" and indecent act between 15 and 17 May 1995;

count 4 - indecent act between 15 and 17 May 1995 on an occasion other than that referred to in counts 2 and 3;

counts 9 and 10 - alternative counts of "oral incest" and indecent act between 4 March 1996 and 7 March 1996.

12. On 16 September 1997 the applicant was convicted by the jury of three counts of wilfully committing an indecent act, (counts 3, 4 and 10). He was acquitted of the remaining counts (counts 1, 2 and 9). After calling for a pre-sentence report the trial judge, on 21 November 1997, sentenced the applicant, who had no prior conviction, to terms of imprisonment of three years on each count of which he was convicted and directed that six months of the sentences imposed upon counts 4 and 10 be served cumulatively upon each other and upon the sentence imposed on count 3. The total effective sentence was therefore one of four years' imprisonment and his Honour directed that the applicant serve a minimum period of two years before becoming eligible for parole. His Honour declared a period of 66 days' pre-sentence detention.

15. The applicant initially sought leave to appeal against all the convictions and the sentence imposed. Mr Marshall, who appeared for the applicant both at trial and upon this application, informed the Court that the applicant had abandoned his appeal against the conviction on count 10 and had also abandoned the application for leave to appeal against sentence. The primary ground argued by Mr Marshall in support of the conviction application was that the trial judge was in error in not giving to the jury what is sometimes described as a "Longman warning" (Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79) in respect of counts 3 and 4, in the same or similar fashion to the one which he had given in respect of count 1. The remaining ground which was argued, namely that the convictions on counts 3 and 4 were unsafe, was predicated upon the proposition that the absence of the warning to which I have referred rendered the verdicts unsatisfactory.

18. Because the grounds of appeal are so limited it is necessary only to refer in brief terms to the evidence upon which the convictions were based. That evidence came in the main from the complainant, who was nearly 17 years of age at the date of trial. Despite the fact that the offences of which the applicant was convicted were alleged to have occurred only some two years before the trial, and about a year before the matters were reported to the police, the complainant's evidence about the relevant events was to some extent clouded with vagueness, principally because it was hedged about with evidence of similar, but non-specific, conduct of a criminal kind. The complainant, who gave her evidence in court before the jury, said that the applicant first commenced to sexually assault her in or about 1993, and that thereafter he had continued to touch her on the vagina throughout 1994 and into 1995. Initially this conduct, she said, took place on her mother's bed when she and the applicant were "play fighting" but, from the beginning of 1995, he engaged in the practice of coming into her bedroom late at night, pulling the bedclothes back and inserting his hand under her nightie and placing his finger into her vagina. The gist of her evidence was that this conduct would occur repeatedly and that she would frequently be asleep and wakened by it. She said that often she would terminate the conduct by saying to the applicant words to the effect of "Piss off - leave me alone".

21. Her evidence, however, drew a distinction between the events which constituted counts 2, 3 and 4 and the events which gave rise to all other counts on the presentment. The former events all occurred, she said, in the lounge room of the house at a time when she was ill from a bad cold. She was, she said, sleeping on the couch in the lounge room of the house and it was the applicant's custom to sleep in a recliner chair in the same room. She said that, on or about 16 May 1995, she was asleep or about to go to sleep when she felt the applicant's hand on her vagina inside her tracksuit pants and undies. She said she felt his hand "between the outer lips" of her vagina. She pulled his hand away and went to sleep. These were the events which constituted counts 2 and 3 on the presentment which were pleaded in the alternative and in respect of which the jury convicted the applicant of the indecent act charged in count 3.

24. On the following night, so the complainant said, she was again asleep on the couch. She said a pain in the region of her vagina caused her to wake up and she found the applicant standing over her leaning on the back of the couch with his left hand and inserting the fingers of his right hand into her vagina. She said the blankets had been pulled back and her tracksuit pants and undies pulled down to her knees. She said that, once again, she had pushed him away and he walked out of the room to the toilet. She had then gone back to sleep. It was these events which constituted the charge of indecent act in count 4.

27. Thereafter, the complainant alleged increasing and continuous, but non-specific, criminal conduct occurring at night in her bedroom on two to three nights per week.

30. This, she said, continued throughout 1995 and until March 1996 when she brought the conduct to the attention of her mother. The police were notified and there were two long interviews with the police on 20 March 1996 and 2 July 1996. Counts 5, 6, 7, 8, 9 and 10 were particularised instances of the conduct on various dates between August 1995 and March 1996. As I have already stated, the applicant was acquitted, either by direction or verdict, on all of these counts save count 10.

33. The applicant gave no evidence and called no evidence. His case, made through cross-examination, was that the complainant was making it all up, principally because she had become increasingly angry at the discipline to which the applicant was subjecting her. In support of this case the applicant pointed to the uncontested fact that the complainant slept in a bedroom which was part of the same room in which her brother "A.H." slept and that their sleeping accommodation was separated only by wardrobes and a curtain to which bells were attached and which would ring if they were disturbed. Additionally the applicant relied upon inconsistencies in the complainant's versions of events. Much was made of these in Mr Marshall's final address to the jury. In particular he noted that, when the complainant first gave her version to police in March 1996, she did not mention at all what I have described as the "couch incidents" which were the subjects of counts 2, 3 and 4. She first mentioned these to the police in July 1996 and, when she did, she gave a version at odds with the one which she gave in evidence.

36. There was, however, some evidence of a general kind upon which the Crown relied to confirm the complainant's allegation of sexual assault. A.H. gave evidence that from time to time he had seen the applicant in the complainant's bedroom at night and that he heard the complainant say words to the effect of "Piss off - leave me alone". There was also evidence from M.H. to the effect that, shortly after the police had been notified, the applicant came to her asking her to induce the complainant to change her story and "to tell the police that she was lying". Furthermore, there were some curious aspects of the first record of interview with the police. Although the applicant had for a lengthy period denied to the police that he had at no time sexually interfered with the complainant, he had, during the course of the long interview in March, and having spoken for some time to M.H., "changed his tune" and made what the Crown alleged were confessional statements reflecting a "locus poenitentiae". Thus, inter alia, he said: "I will plead guilty to whatever you want"; and, when the police said that they did not wish such a plea simply because he felt he was under pressure from his de facto wife or them, he said: "It does not matter, I'm guilty." He later said: "I'm not saying I have not done any of this, because [the complainant] does not tell lies."

39. The learned judge gave what seem to me to have been very full and very fair directions to the jury in the course of which he went to great lengths to ensure that no prejudice flowed to the applicant from any potential confusion in the minds of the jury between the offences which were the subject of the counts charged and the uncharged criminal conduct which the Crown alleged had spanned the periods between the crimes charged. These directions were carefully given, firstly during the course of the trial and again during his Honour's summing up, for the purpose of explaining to the jury why the evidence of uncharged criminal conduct was admitted, the limited use which the jury could make of it and the kind of reasoning from it which the law would not permit.

42. His Honour was clearly at pains to give these careful directions because of the clear risk which he perceived to exist in this case of the jury confusing and substituting proximate, but uncharged, conduct for that which was conduct relevant to and probative of the offences charged. Not surprisingly, Mr Marshall did not, and does not now, take exception to his Honour's directions in this respect. What he contends is that, in the circumstances of the case, his Honour was in error in not giving what he calls a "Longman warning" to the jury in respect of counts 2, 3 and 4 of the same or similar content which his Honour had given in respect of count 1, which was "the oldest offence" alleged in the presentment and one which was alleged to have occurred at a time in 1993 between 1 April and 31 August.

45. In respect of count 1 on the presentment his Honour warned the jury that "it would be dangerous to convict on the evidence of [the complainant] alone unless, after scrutinising her evidence with great care and considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy". His Honour gave this warning because, as he said, the offence was alleged to have occurred more than four years previously and there was no specific date given to its occurrence. His Honour was of the view that the warning was needed because the complainant was very young when the alleged events occurred and that, because of the passage of four years, the applicant had lost the means of adequately putting her evidence to the test. These matters, in his Honour's view, made the warning which he gave necessary in the interests of justice because, as he pointed out, there was no definitive date alleged which enabled the applicant to demonstrate that the complainant's assertions could not be correct. His Honour gave that warning in conformity with his inherent power and with s.61(2) of the Crimes Act 1958 which empowers a trial judge to make "any comment on the evidence given in the proceedings that it is appropriate to make in the interests of justice". Of course, the judge, who is acquainted with the atmosphere of the trial, is best equipped to determine when such a direction is needed and, if it is needed, what sort of direction is required. As this Court pointed out in R. v. Miletic [1997] 1 V.R. 593 at 602-3, s.61(2) was introduced to underline the right of the trial judge in sexual cases to give an appropriate warning to a jury where the interests of justice calls for it, notwithstanding that, by s.61(1), the former rule of law or practice requiring trial judges to warn juries that it would be dangerous to act on the uncorroborated evidence of complainants in sexual cases, had been abrogated. In discussing the counterpart section which had been introduced into the Evidence Act (1906) of Western Australia, Brennan, Dawson and Toohey, JJ. said in Longman (at 85-6):

"The mischief at which the provision appears to have been aimed is the adverse reflection which a warning 'required by any rule of law or practice' casts indiscriminately on the evidence of all alleged victims of sexual offences, the vast majority of whom are women, and the corresponding protection which the giving of a warning confers on an accused in all cases of sexual offences."

49. However, as their Honours went on to point out, the abolition of the former rule of practice was not intended to convert complainants in sexual cases into a category of "especially trustworthy witnesses whose evidence need never be the subject of a warning" . As this Court said in Miletic (at 603):

"If the circumstances of the particular case, other than the sexual character of the complaint, call for a warning, then the provisions of sub-s.(2) of the section enable such a warning to be given. The reference to the 'interests of justice', the context and the legislative history show that 'comment' in that sub-section includes a binding direction and is not confined to a comment on a par with counsel's addresses that the jury may accept or reject ... . Whether a warning is called for, and in what form, depends upon what the interests of justice require in the particular case."

53. It would be wrong to believe, as current practice is tending to suggest, that, in every case in which multiple sexual offences are alleged, the trial judge is bound to give a warning of the type which the Court in Longman suggested should have been given in that case. The Court was not suggesting that, simply because credibility issues had arisen between the complainant and the accused, the former rule of practice was to be supplanted by some other form of warning, masquerading as a comment to be made by the judge pursuant to s.61(2). It should not be forgotten that the Court in Longman was dealing with events which were more than 20 years old and where the circumstances made it obvious that it was far easier to make the allegations than to refute them. As Brennan, Dawson and Toohey, JJ. said in that case (at 91):

"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 be given to them ... . 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."

57. The judges were there pointing to the factor of long delay as the particular impairment to the fairness of the trial which, in that case, required the judge to give the warning in order to restore the balance. In this case Mr Marshall contends that the judge should have given to the jury a "dangerous to convict" warning in respect of allegations of improper conduct which had occurred some twelve months before the applicant was confronted with the allegations and some two years before the trial. He submitted that the judge should have given such a warning because of the inconsistencies which cross-examination had exposed in the complainant's evidence led in support of counts 2, 3 and 4 and because of her statement, in describing those events, that she may have been mistaking certain aspects of them with other events. Indeed at one stage of his submissions to this Court Mr Marshall appeared to be contending that the balance of the trial was thrown out of kilter because the judge gave a warning in respect of count 1 but no warning in respect of counts 2, 3 and 4. However, it must not be forgotten that all of the matters upon which Mr Marshall relies were before the jury, who had the advantage, which this Court does not have, of seeing the complainant and assessing her credibility. It should also not be forgotten that she was describing events which were not only relatively recent in the memory but were events said to have occurred when she was sleeping on the couch in the lounge room - that is, the only events which she described as having occurred outside the bedrooms of her or her mother. The nature of the factual contest was such that it cannot be supposed that the applicant was at a disadvantage of the type envisaged in Longman's Case, where the jury needed some judicial warning to alert them to a factor which might not have been readily apparent to them. Although his Honour was asked by applicant's counsel at trial to give further directions to the jury "with respect to counts 2, 3 and 4 along the lines of a Longman direction", his Honour, in my view, was correct in rejecting that application for the reasons that he then gave; namely that the delay had not been a long one, and not as long as the delay in respect of the events charged in count 1; and secondly that the complainant was, by then, two years older.

60. As I have said, the events which the complainant was describing had occurred only some two years before the trial and they were said to be the only sexual assaults perpetrated upon her in the specific part of the house which she was then describing, namely the lounge room. If the events happened in the manner she described, it cannot be supposed that the applicant had lost the means at his disposal to defend himself against those allegations. In the recent case of Hyatt (unreported, 23 April 1998), this Court said that it had been "generous" for the trial judge in that case to have given a "Longman direction" where the events were four years old and the complainant was considerably younger than the complainant in this case. In any event the applicant chose not to give evidence at all and to go to the jury on the basis that all the complainant's allegations were fabricated. That sort of contest is the stuff of juries and it was for them to consider whether they should accept the complainant as a credible witness notwithstanding the suggested imperfections in her testimony. They must in the long run, in respect of the counts upon which they convicted, have been so satisfied. There was nothing about the contest which, in the interests of justice, required a judicial direction or warning of the type which Mr Marshall submits should have been given. All that was required in this case, in my view, were directions as to the care which needed to be taken by the jury to ensure that they were satisfied that the events which the complainant was describing were in fact the events charged. Those directions, as I have said, were clearly given in this case.

63. I would, accordingly, dismiss the application for leave to appeal against conviction. The application for leave to appeal against sentence should, for reasons stated, also be dismissed.

78. The formal order of the Court is that the applications for leave to appeal against conviction and sentence are dismissed.