R v Pidoto [2002] VSCA 60

5. In the course of his charge the learned trial judge said:

"Concerning that same matter of delay, in this case, you have been told by Ms H., Mr A.'s ex-wife, of a complaint made by her husband to her in 1995. That evidence was led in an attempt to establish that the delay of some 18 years before Mr A. complained to anyone is not inconsistent with the behaviour of which he complained, and to rebut a suggestion made by the defence that Mr A. has recently made up a false story for the purpose of compensation.

...

In considering the evidence that Mr A. did complain to his wife, you must bear this steadily in mind. You may use it if you see fit to accept it as negating inconsistency or recent invention. It may not be used by you as evidence, independent of Mr A., giving additional support to the probability that the events complained of happened. The reason is that the complaint to Ms H. was made by the same person who complains of the crime itself, that is Mr A. Put another way, Mr A. cannot corroborate himself, and that no doubt you will find obvious."

I have substituted initials for the names of the complainant and his former wife.

10. The jury would have understood those passages to mean that they could use the evidence of complaint in two distinct ways: first, as negativing inconsistency, which is the same thing as showing consistency, between the complainant's allegations and his subsequent conduct; and, secondly, to rebut a suggestion that he had invented those allegations with a view to obtaining compensation.

13. The evidence would have been admissible for the first purpose only if it had satisfied the requirements explained in such cases as Kilby v. R.[1], R. v. Freeman[2] and R. v. Matthews[3]. It did not satisfy those requirements, because it was not evidence of a complaint made at the first reasonable opportunity. Indeed the complaint was not proximate at all to the alleged offences. For the same reason that the evidence was

not admissible to show consistency of conduct, it could not be used for that purpose.

17. In order to have been admissible for the second purpose, the evidence would have had to satisfy the requirements explained in such cases as Nominal Defendant v. Clements[4] and Transport and General Insurance Co. Ltd. v. Edmondson[5]. One of those requirements is that, in order to be admissible, the previous consistent statement must be made at a time sufficiently early to be inconsistent with the suggestion that the witness's account is a late invention or reconstruction. His Honour ruled that the complaint was too close in time to the claim for compensation to rebut a suggestion of recent invention. Accordingly the evidence was not admissible, and could not be used, for the second purpose. I agree with Vincent, J.A. that the problem was not solved by distinguishing between evidence that a complaint was made and evidence of the terms of the complaint.

20. For these reasons I, too, would uphold ground 3(i) and (iii) and direct a new trial on counts 1, 3, 5 and 7. The only ground which, in the circumstances of this case, would result in a judgment and verdict of acquittal is ground 8, but I also agree with Vincent, J.A. that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on the four counts on which he was convicted.

23. I prefer to express no opinion on the other grounds of appeal. Some of them will not arise again. Others pray in aid principles of law that may arise at the new trial but are not, I think, in doubt.

28. I agree with Vincent, J.A. I also agree with the reasons of Callaway, J.A. on ground 3(i) and (iii).

33. The applicant appeared before the County Court at Melbourne on 16 February 2000 on a presentment containing three counts of buggery on a male person under the age of 14 years (counts 2, 4 and 6), and four counts of indecent assault on a male person under the age of 16 years (counts 1, 3, 5 and 7) to all of which he pleaded not guilty. At the conclusion of the trial the jury was discharged without verdict, its members being unable to reach agreement.

36. For some reason, the matter did not come back for trial until 16 January 2001. On this occasion, the jury which was empanelled returned verdicts of guilty on each of the indecent assault charges and not guilty on the remaining counts.

39. After hearing a plea in mitigation of penalty, on 21 February 2001 the sentencing judge ordered that the applicant be imprisoned for 18 months on count 1 and for three years on each of counts 3, 5 and 7. He directed that all sentences were to be served concurrently. This created an effective sentence of imprisonment of three years in respect of which a non-parole period of 18 months was fixed.

42. The applicant then sought leave to appeal against his convictions on four grounds set out in a Notice dated 5 March 2001. By order of the Registrar made on 28 February 2002, he was granted leave to amend those grounds by substituting the following:

"1. The learned trial judge erred by failing to direct the jury: (a) that the documentary evidence tendered on behalf of the applicant was part of the evidence in the trial; and (b) as to the relevance of the documentary evidence tendered on behalf of the applicant and the use they might make of that evidence. 2. The learned trial judge erred by failing to direct the jury in relation to the use they might make of the applicant's answers to questions by police in a record of interview. 3. The learned trial judge erred in directing the jury in relation to evidence of complaint made in 1995.

PARTICULARS

(i) The learned trial judge erred in directing the jury that evidence of complaint could negate inconsistency of conduct on the part of the complainant. (ii) The learned trial judge erred in directing the jury that as a general rule persons who are compelled to submit to sexual misconduct complaint [sic] about it. (iii) The learned trial judge erred in directing the jury that the evidence of complaint could rebut recent invention. 4. The learned trial judge erred in failing to direct the jury in accordance with Kilby v. R. ([1973] HCA 30; 1973) 129 CLR 460. 5. The learned trial judge erred in directing the jury that they should ask themselves whether the complainant's condition in 1976 was contributed to by the behaviour of the applicant. 8. The verdicts are unsafe and unsatisfactory."

As no argument has been advanced to support Grounds 6 and 7, it is not necessary to set out or address them.

48. The complainant was born on 25 April 1967 and was 33 years of age at the time of the trial of the applicant. He grew up with his siblings - two brothers, one of whom was two years older and gave evidence in the trial, and a younger sister, who also gave evidence - in a Victorian country town. The family members attended the local Catholic church every Sunday where the applicant was the assistant parish priest. The complainant and his brother served as altar boys. It was undisputed that the applicant became friendly with the family, going to their home approximately once each week and sometimes staying for meals.

51. The house in which the family resided was apparently a standard weatherboard structure with plaster walls through which conversation conducted in a normal tone would not be heard. A loud conversation would be audible, however, in an adjoining room. The complainant was, at the relevant time, aged 10 or 11 years and shared with his older brother a bedroom situated next to the kitchen. In the wall between the two rooms was a sliding window of opaque yellow or orange glass which could be opened, although it may well have been "a bit stiff". It was not possible, according to the evidence given at the trial, to see more than shadows through it. The boys' room also had a window that provided a view of an external verandah and a neighbour's garden.

54. During a period in which he played football as a member of an Under 11 team, according to his evidence the complainant overheard a conversation between the applicant and his mother in which the applicant indicated that he was a masseur and could assist the boys with football injuries. Although the complainant did not recall ever sustaining any such injuries, massage sessions commenced a few weeks later. They were carried out in the boys' room into which the kitchen table would be placed for that purpose. The sessions started, the complainant believed, at the commencement of the 1977 football season.

57. On the occasion of the first such treatment, the complainant asserted, he went into the bedroom with his older brother and the applicant, who told the two boys to undress. They stripped down to their underpants. He then directed them to extend their arms, bend over and touch their toes. The complainant stated:

"He just sort of, you know, felt my arm, my back, my shoulders, you know. He just gave me a general feel over .... At one stage he told me - he had his hands out and that - he just cupped me balls and told me to cough .... He put his hands underneath my balls ... just told me to cough."

61. After several sessions, he was asked by the applicant to remove his underpants. Later in his evidence, he indicated that it was on one of these subsequent occasions that the actions just described took place. He said that the applicant told his brother to leave the room and then locked the door behind him. After cupping the complainant's testicles, the applicant placed the complainant face down on the table. The applicant touched him under his arms and in the groin area. At a point in the process at which the complainant had been turned over onto his back, the applicant took hold of his penis and "started playing with it - pushing it around". The complainant said that this activity which constituted the basis of count 1 probably occupied about five minutes.

64. The complainant gave evidence that his anus was penetrated on a number of occasions during massage sessions. The first episode of penetration occurred, he said, a few weeks after the incident to which I have referred. He stated that the applicant started massaging him whilst he was lying naked and face down on the table. He was pulled along the table so that his legs were then hanging over the edge. The complainant then felt what he described as a really sharp pain in his anus. He said that the applicant was standing behind him at the time. He did not know whether the object that he felt penetrating him was the applicant's penis or finger. He said that the rubbing inside the anus could have occupied a period of time between 30 seconds to five minutes. In relation to this activity, the applicant was found not guilty of buggery (count 2) but guilty of indecent assault (count 3).

67. The complainant described a similar incident which he said occurred subsequently. On this occasion, he experienced a rasping feeling in his anus. He did not know, he stated, what was being inserted into his body. He said that after the activity had finished, he found blood and what he described as "white sort of stuff" on a piece of toilet paper with which he wiped himself. Again, the applicant was found not guilty of buggery (count 4) and guilty on the alternative count of indecent assault (count 5).

70. Possibly a week or two after the first act of penetration, according to the complainant, he was again in the boys' room with the applicant and his older brother who had been given a massage. His brother then left the room and the applicant locked the door behind him. The complainant was on the table lying naked on his stomach and the applicant rubbed vaseline around his anus. He said that he felt a sharp pain and something moved in and out of his anus. At one point, he looked around and saw the applicant with his belt undone and his pants down to his knees. The applicant's face was described, as "real red". He asked the applicant why he had his pants down. The applicant responded, he said, by grabbing him by his neck and head, pushing his head onto the table and stating, "I haven't got my pants down, I'm just giving you a massage". At this point, according to the complainant, the applicant said to him that he differed from his brother in that he was "out on the inside" and therefore "he had to be fixed up from the inside". According to the complainant, he felt drowsy and had a sore anus after this incident. He dressed and went to the toilet where he wiped the area with a white towel. He said, "It was just covered in blood." These activities were encompassed by count 6 (not guilty) and count 7 (guilty). He then showed the towel to his mother. By this time the applicant had left the house, he said.

73. The complainant said that he was taken by his mother to see a medical practitioner in relation to anal problems. He said that he did not tell that doctor that his anus had been penetrated. He accepted that at the committal hearing he had stated that the first such visit took place within several days of the incident after which he had seen blood on a towel. However, he said that he could not recall the timing of that visit. He said that he did not remember having any medical problems in relation to his anal area prior to the activities of the applicant. Although he did visit the Borham Hospital as a child, he could not recall any problems other than those described in his evidence.

76. The complainant's recollection was that the applicant stopped coming to the house just after the end of the football season "probably September or something like that". He did not recall clearly in which year the offending took place and said that he did not see the applicant after a motor car accident in which his mother was involved. The complainant stated that he did not inform his mother or anyone else about the applicant's conduct. He stated that he was told by the applicant that if he disclosed what had occurred between them he would get into "big trouble". He stated that he was alarmed by this possibility. He first mentioned the matter a few months after his marriage in 1995 when, as a consequence of problems emerging in their relationship, he told his wife about the offending.

79. He accepted that at an unspecified time he went with his solicitor to see Mr O'Callaghan, Q.C., who had been appointed by the Catholic Church as an independent commissioner to investigate such matters. He stated that he did not do so because he wanted to obtain money from the Church but by reason of his wish to prevent others from suffering his experience. He had complained about the applicant's conduct because, he said, "he's fucked my life". He was cross-examined with some force about the possibility that he may have been motivated to make allegations against the applicant by a desire to secure compensation and insisted that he was not interested in obtaining money. At one stage he said, "I haven't got a price tag on my arse." In this context, he was asked about communications which took place between his solicitors and the commissioner's office and the lodgment of a request that the matter be referred for determination to the compensation panel established by the Catholic Church. I will return to this aspect. He stated that he had attended one meeting of the organization Broken Rites, but because he did not feel comfortable he left early. He told his wife that he had attended further meetings. However on those occasions he had gone to an hotel as he wanted to be alone.

82. The sister of the complainant, mentioned earlier, stated that the applicant was a regular visitor to the family home during the 1970s. He would call in once or twice a week. She had come to know him, about a year or so before her mother was involved in a motor car accident on 17 July 1978. This witness (who could not have been more than eight years of age at the time) asserted that, on occasions during massage sessions, she heard noises sounding like the creaking of springs from the boys' room. When she recalled those noises as an adult, she thought that they were the sounds of sexual activity on a bed. However, as I understand the evidence, there was no suggestion that any activity had taken place on a bed in the room. It is highly likely that her recollection was defective in this aspect. On one occasion, she said, she opened the servery window while the applicant and the complainant were together in the room. The applicant told her in a raised and aggressive tone to close it. Afterwards she observed that his soutane was hitched or tucked into the back of his trousers. At one time, she heard the complainant mention that he had been bleeding to her mother and she saw a towel with "a lot of blood on it". She also saw underpants belonging to the complainant with blood on them, a few days after which the complainant was taken to see Dr Sherman, a local medical practitioner. For more than one reason, the evidence of this witness must be approached with circumspection. It is, in my view, almost certain that there has been some reconstruction in her recollection of events.

85. A cousin of the complainant gave evidence that at the relevant time she lived across the road from the family home and was a frequent visitor at the house. She told the jury that she met the applicant there on a number of occasions. She was aware that the boys received massage treatments from him while she was present in the house. These treatments were given behind a closed door. One night towards the end of 1977, she saw the complainant with a white towel covered in blood. He had emerged from the bathroom with the towel in his hand and he asked his mother why "his bum was bleeding". She recalled that at one point "towards the end of Grade 5 to 6" the complainant would take a small cushion to school with him. On numerous occasions, the complainant would not return home immediately after school, but would go to the house an hour later, telling her that he had been hiding in the pine plantation. These were occasions on which the applicant was at the home.

88. The complainant's father gave evidence that he saw the applicant at the family home a number of times. He was not initially aware that the applicant was massaging his sons but at some stage his wife advised him of this activity. It was after the applicant "came on the scene" that the father of the complainant learned that his son was experiencing problems with his anus. The boy was taken to be seen by Dr Sherman. The witness said that he had not known of any such problems prior to the family's interactions with the applicant. The complainant's father recalled a visit to a specialist, Mr Mackey, but had no recollection of any prior visit by his son to a surgeon named Mr Johnson for treatment for anal problems.

91. The complainant's mother, as I have earlier indicated, was involved in a motor car accident in July 1978. She was seriously injured and hospitalized for approximately 16 months. She stated that there has been some impairment of her memory in consequence. She gave evidence that she was a regular church-goer and came to know the applicant when he assumed the role of assistant parish priest for the area. This, she believed, occurred in 1977. The applicant became a weekly or fortnightly visitor to the family home. Her sons were playing football at around that time and she told him that they were sustaining some football injuries. The applicant said that he might be able to do something for the complainant and told her that he was a masseur. After that conversation, when he visited the home, he would inquire about the children and then take the complainant into the bedroom to "check the football injuries". This happened approximately weekly. She provided the applicant with a jar of vaseline when he asked for it on one occasion. She stated that the glass on the servery window between the kitchen and the boys' bedroom was more brown than yellow in colour. The window was in working order. There was a window (which was curtained and equipped with blinds) in the boys' room adjacent to the verandah. This window provided a view into and presumably from the neighbour's yard. During the day, the curtains and blinds would normally be left open. She did not recall a table being taken into the boys' room for the purposes of massage or that the complainant's brother had received any massage treatment. It was after the complainant's mother met the applicant, that her son reported to her that he had "a sore bum". In due course, she took him to Dr Sherman, who in turn referred her to a specialist surgeon, Mr Mackey, for treatment for this condition. She did not remember when the complainant was taken to be seen by Dr Sherman. She disagreed that, in 1976, her son had been examined by a surgeon named Mr Neil Johnson. However, she accepted that at the committal hearing she had said that she recalled such a visit having taken place.

94. The elder brother of the complainant said in evidence that he too was massaged by the applicant in the boys' room. They used the kitchen table as described by the complainant. He was generally massaged whilst wearing just his underpants. The servery window was composed of dimpled glass of a yellow-orange colour. If a person looked through the bedroom window to the outside, a row of trees and bushes along the fence would be seen. The complainant never mentioned any abuse by the applicant and this witness could not recall the applicant using vaseline in the massage process.

97. The former wife of the complainant said that they were married in 1995. For some months afterwards, their relationship was satisfactory and then the complainant became moody and short with her in conversation. He shouted things in his sleep and would sweat profusely. She confronted him about this behaviour on a number of occasions and finally, she said, he broke into tears and told her that he had been sexually interfered with by the applicant. She subsequently attended a meeting with the complainant's solicitor. It was never stated to her that the purpose of that meeting was to secure compensation. However, she agreed that she had previously said that the question of compensation was discussed. She asserted that the main topic considered at the meeting was how psychiatric help could be secured for her husband. On four to six occasions, the complainant told her that he was attending meetings of the group Broken Rites but she observed that he would sometimes return smelling of alcohol.

100. Dr John Sherman gave evidence that he saw the complainant on 29 October 1977. The witness had no independent recollection of the visit and relied upon his notes which recorded a history of haemorrhoids being given to him and contained the reference "Saw Neil Johnson who did a Lord's procedure in 1976". (I should add that the source of this information was not stated.) He also noted "On examination no abnormality detected" and there was a final entry suggesting that he had referred the complainant to Mr Mackey. The witness did not record that he had observed any sign of sexual interference in his notes of examination. Dr Sherman, in his evidence, expressed the opinion that had the complainant suffered from haemorrhoids as a child, it would have been "most unusual".

103. Mr John Mackey, a surgeon, gave evidence that he saw the complainant in November 1977 and again in December of that year. The complainant presented with a history of anal pain and the previous presence of lumps in the anus. The witness examined him and observed no physical or palpable abnormality. It was, he said, most unusual for a child of that age to suffer from haemorrhoids. A barium X-ray procedure was carried out at St George's Hospital and nothing abnormal was seen. A further physical examination did not reveal a presence of any abnormality. Mr Mackey considered that there was, for practical purposes, no possibility that a "Lord's procedure" had been undertaken by Mr Johnson. The witness described this procedure as damaging and barbaric and considered that the possibility that it may have been performed could be discounted. However, he said that he had confirmed with Mr Johnson that there had been an examination under anaesthesia of the complainant at the Borham Hospital. Mr Mackey stated that the insertion of an adult male penis into the anus of a child of the age of the complainant at the relevant time would be likely to be an uncomfortable experience but would not necessarily be painful.

106. Detective Senior Constable Abbey gave evidence that the surgeon Mr Neil Johnson is an elderly man suffering from Alzheimer's disease and that his records no longer exist.

109. Dr Morris Odell, a forensic physician, stated that activities involving the handling of the genitals, massage around the anus, or penetration of the anus, are not consistent with any recognized treatment for the correction of muscular strain. The cupping of testicles can occur in medical practice when a practitioner is endeavouring to ascertain whether a hernia is present, but it is not done in the context of massage being performed for muscular problems. It is possible, he said, to penetrate a child anally without leaving any sign at all.

112. The applicant was interviewed by the police on 6 January 1998 in the presence of a barrister. He strongly denied any wrongdoing whatsoever and offered "no comment" responses to specific allegations put to him in respect of members of the complainant's family.

115. Detective Senior Constable Abbey stated that a newspaper article in the local paper suggested that the last game played by the complainant's junior football team in 1977 took place on Sunday 31 July.

118. The applicant gave evidence in his own defence. He confirmed that at the relevant time he was an assistant parish priest. He met the family of the complainant in the course of these duties in 1976 to the best of his recollection. He agreed that he had massaged the complainant and his brother, although he was unable to recall how that had commenced. He performed this massaging during one football season in 1977. He said that he may well have rubbed vaseline on the complainant's sacroiliac area, but would not have done so in the area of the boy's anus. He could not remember whether he performed any massaging of the boys on a kitchen table in a bedroom, but said that this would have been a sensible course to adopt. He was unable to say whether there was a lock on the boys' bedroom door but stated that if there had been he would not have locked it. He believed that he had a quite friendly relationship with the complainant and the other members of his family. Towards the end of November, and for approximately the first three weeks of December 1977, the applicant was in Papua New Guinea and it was unlikely, he thought, that he visited homes in the period shortly and immediately before that time.

121. Robert Grantner (a qualified massage therapist), Dr Peter Selvaratnam (a medical practitioner and a manipulative physiotherapist) and Mr Lachlan McKinnon (a manipulative physiotherapist) each gave evidence about massage procedures and the therapeutic value of massage. They agreed that vaseline was employed as a legitimate therapeutic lubricant in the 1970s. Mr Grantner stated that while massage was not generally available for amateur child athletes, it could be therapeutically valuable for them. Mr McKinnon gave evidence that he had worked with the applicant and had rated his massage skills highly.

124. Seven male witnesses gave evidence that they had at some stage in their lives benefited from massage treatment provided by the applicant. The recollection of each was that he wore underpants during the process. Three female members of the parish at the time said that their children were massaged in their bedrooms at home by the applicant. One said that she would commonly watch the process.

127. A retired police officer, Mr Hellwege, stated that he had regular contact with the applicant at the relevant period, seeing him approximately weekly. The applicant always wore civilian clothing and not clerical robes when observed by the witness.

134. During the course of the trial the following documentary evidence was tendered:

* Exhibit A - Copy letter from Hollows, Solicitors, dated 1 April, 1997.

* Exhibit B - Copy letter from Hollows, Solicitors, dated 22 June, 2000.

* Exhibit C - Copy letter from Dr John Sherman, tendered as "medical records".

* Exhibit D - Copy letter from Mr John Mackey, dated 9 November,

* Exhibit E - Notes from St. George's Hospital, dated 1 December

All documents were admitted without objection being expressed by the prosecutor. It is apparent that their contents were perceived as relevant to the determination of two issues raised by the defence: first, whether a reasonable possibility existed that the complainant was making untrue allegations against the applicant for the purpose of securing compensation from the Catholic Church; and, second, whether any anal problems that the complainant may have experienced as a child were inconsistent with the perpetration of a sexual assault upon him by the applicant. Exhibits A and B were concerned with the first of these questions. They were both addressed to Mr O'Callaghan. Omitting the formal parts, they read as follows:

Exhibit A "We request that you refer this matter to the Compensation Panel in due course for determination." Exhibit B "We refer to your letter dated 14 August 1997 and understand that Fr Pidoto has been convicted and therefore we request that you proceed with your determination in respect of our client being abused. Can you please provide us with a date for a meeting with you as a matter of urgency or alternatively forward your determination to Mr David Habersberger QC and ask him to provide us with a hearing date."

Exhibits C, D, E and F, which deal with the second issue need not be set out for present purposes.

149. In his charge, after having instructed the jury that they were to decide the case on the evidence "as you have heard it, and not on any other basis", the trial judge said:

"I remind you that what the evidence is is what you have heard on oath from the witnesses called before you, both in the witness box and now on video screen."

He made no reference to the exhibits that had been tendered, nor did he provide the jury with any specific instruction pertaining to either the status of the exhibits or the uses to which any of them might be put. Counsel for the applicant raised the matter at the conclusion of the charge in the following passage.

"COUNSEL: Just one matter that I was a little bit concerned about, Your Honour. I didn't recollect Your Honour telling the jury how to use the documentary evidence. Here we have got the two letters from the solicitors which fall into one category and we have got the doctors' histories which fall into a different category. I submit that it would be wise to - - - HIS HONOUR: What do you say I should tell them about it? COUNSEL: Firstly, that they are entitled to use the letters to the solicitor when weighing [the complainant's] declaration that he was not interested in compensation. I would seek a direction that he says that the solicitors were not acting on his instructions and yet the solicitors appeared to be doing just that. HIS HONOUR: It is specifically put to the jury in the course of the resume of [the complainant's] evidence that he did indeed concede that he was claiming compensation. COUNSEL: He did say that but he said repeatedly that he wasn't interested in money. HIS HONOUR: I know he did but at the end of his evidence - Question: `You have been to Mr O'Callaghan twice. All along you say, "I'm not interested in compensation?" Answer: "The solicitor told me [you're] entitled to it, and I say I don't want it. He goes, "Look, it's there. It's put up for you sort of people, people who have been affected by the clergy or by an order." I say, well you just do whatever you have got to do. I don't care - doesn't, you know, it's not my main interest.' What more do you want than that? COUNSEL: Your Honour, that must be balanced against his repeated declarations that he did [not][6] want compensation, that he had not given the solicitors authority to write that letter. That appears at p.48. The difficulties with his instructions to his solicitor which appears at p.54 and, in my submission, these letters have simply been left hanging. My perception of it, Your Honour, is that it is still a live issue in his evidence as to whether he did really want compensation or whether he was just doing this to stop Father Pidoto being a priest. It was his denial that he was interested in compensation that was the significant part of that and that is the bit that those letters go to. That, Your Honour, deals with the letters. As to the histories, they have histories which have been attested to by Mr Mackey and by Dr Sherman and those histories are evidence of the truth of their contents and they may treat them as that. HIS HONOUR: - - - , the histories have been read into evidence. They are part of the viva voce evidence. Both doctors have said - the ones who have been called, I have no particular recollection but this is my note and this would be what the situation is. COUNSEL: In fact, Mr Mackey went further and said he recollected ringing Mr Johnson and he - - - HIS HONOUR: The jury would have been told that. COUNSEL: Your Honour, it is just that documentary evidence does fall in a different category from viva voce evidence. HIS HONOUR: What do you want me to tell the jury about the medical documents? What do you want me to say? COUNSEL: That they are evidence of the truth of their contents and they may use those to support the evidence of the doctors who gave that evidence and they may use their view of the evidence for what help it is in assessing [the complainant's] evidence. Those are the two matters."

The discussion which ensued essentially related to the uses to which this material could be put by the jury. The suggestion raised in this Court that the members of the jury may not have appreciated that the documents constituted part of the evidence at all was not advanced and almost certainly did not occur to anyone as a reasonable possibility. Much attention had been given to the making of a claim for compensation on behalf of the complainant by his solicitors in the letters sent to Mr O'Callaghan, and the complainant's medical history was the subject of a deal of emphasis. I consider that it is quite unrealistic to argue, as counsel did before us, that, in the circumstances of this matter, the members of the jury may not have appreciated that the documents had been admitted in evidence in the trial and could be used by them in the course of their deliberations.

156. That still leaves, however, the question whether the trial judge should have said more about the uses to which the various documents could be put. He considered, in my opinion quite reasonably, that the issues before the jury were relatively clear and that the various documents could be seen to speak for themselves. In consequence, he declined to give any further directions. I should add that, although his Honour pressed him to do so, counsel for the applicant in the trial gave no clear intimation of the precise directions being sought, as the following passage demonstrates:

"HIS HONOUR: - - - to address the jury in respect of the medical records, it would be necessary for me to tell them that the history, as given to the doctors, is not evidence of the truth of that history. All it is is evidence of what the doctor was told in order that he could act accordingly. How does that assist matters or advance them at all? COUNSEL: Both the history upon which he acted and the treatment are evidence which lies in a documentary form and is different from the viva voce form. HIS HONOUR: Why? COUNSEL: Well, simply because it is written, Your Honour, and it comes to them as an exhibit. HIS HONOUR: [Counsel], the doctors in this case have got no recollection whatever of dealing with [the complainant]. They have had put to them their medical records and they have translated those medical records and said, `This is what I believe I did.' The jury have got that and they have also got the record. Why do I need to address the jury further about the record? COUNSEL: Firstly, Your Honour, Mr Mackey does have an actual memory and attested to that. Secondly, because it is a documentary piece of evidence, it comes to them as an exhibit. In my submission, they are entitled to a direction on it. If I can just make it clear - - - HIS HONOUR: You want me to tell the jury that what Dr Mackey says he was told, either by the parents or by [the complainant], is not evidence of the truth of what he was told at all. It is simply evidence that he was told it? COUNSEL: I don't want that at all. HIS HONOUR: What is the point of it? COUNSEL: What I say is that they are two pieces of evidence which they haven't had directions on and which would assist them. HIS HONOUR: But why should they? How does it possibly assist them? COUNSEL: Simply because they are in a different category."

160. Contrary to the assertion of counsel for the applicant at the trial, the notes containing medical histories given by some unidentified person or persons to the medical practitioners who had treated or examined the complainant were not evidence of the "truth of their contents at all" as the trial judge pointed out. There was no evidence of the identity of the person who provided the history upon which the notes were presumably based and it was, by reason of the age of the complainant at the time, highly unlikely that he was the source of the information recorded. There was, in the particular circumstances, no foundation upon which they could have been properly taken into account as impacting upon the credibility or reliability of the complainant's evidence. Nevertheless, as this instruction was not given, the notes were admitted into evidence and argument was advanced on the basis of them, the applicant was placed in a situation of significant advantage to that which would have existed had a proper instruction been provided.

163. Shortly after the conversation set out above and following a luncheon break, the judge returned to the court and informed counsel that he had inadvertently omitted to refer to the evidence of the former policeman, Mr Hellwege. He then said:

"HIS HONOUR: The other matter arises out of [counsel's] submission concerning the letter. [The reference here was to the second solicitor's letter which the complainant specifically repudiated authorizing.] It seems to me at the moment that that letter is inadmissible and should never have got into evidence. However it went in by consent, and there it is. The question thus is whether I should leave well alone or give any, and what direction concerning it."

167. It was undisputed that neither of the solicitor's letters was admissible under s.55 of the Evidence Act and the discussion with respect to them centred around the question whether the complainant was to be attributed the possession of the desire to secure compensation indicated by the solicitor who was purporting to act on his behalf. The prosecution adopted the view that, as the complainant in his evidence had stated that he had instructed the solicitor "Just do whatever you have got to do. I don't care - doesn't you know, it's not my main interest", he would not argue that the letters were written without instructions.

170. Against that background, the judge decided that he would provide no further directions about the second letter. The jury had both letters before them and had heard the complainant's explanation of the circumstances under which they were written. The matter was left for their consideration on the obvious basis that they could either accept or reject his evidence on that aspect and leaving them to decide what impact their finding had on their assessment of the credibility and reliability of the complainant. They were not instructed, in accordance with the applicable principles of law to which his Honour indirectly adverted, that the contents of the second letter, at least, were not admissible at all in the trial. Specifically, the jury was not told that the letters could not be used as evidence of the complainant's desire to secure compensation and therefore reflect upon his motivation for making the allegations against the applicant. They constituted nothing more than hearsay evidence which raised a possible inference of the making of some out-of-court statement by the complainant to his solicitor and could not, in the face of his denial that he had provided instructions to seek compensation on his behalf, be used to impugn the credibility of his evidence before the jury. Before they could have been so used, it would have been necessary for the jury to be able, on the basis of evidence before it, to find that the necessary instruction had been given.[7] The failure to provide a proper direction of the kind contemplated by the trial judge could only have operated to the advantage of the applicant in the circumstances.

177. His Honour did not in his charge refer to the edited tape recordings of the interview conducted by the investigating police members with the applicant on 6 January 1998. Initially, the prosecutor indicated that he did not propose to lead evidence of this interview which contained no significant admission against interest but included a number of self-serving statements and a deal of inadmissible hearsay. After some discussion, his Honour indicated that he could not require the prosecutor to play an edited[8] tape recording but pointed out that:

"... the Crown traditionally, as the Court of Appeal puts it, puts in evidence the response of an accused to questioning by the police whether or not that statement contains admissions. That has certainly been my experience while on the Bench and at the Bar and I cannot think of one instance where the Crown has not placed before the jury the response of an accused man when questioned by the police provided that considerations other than the ones that I have to contemplate do not arise. The Court of Appeal in Su[9] states that such material is traditionally led by the Crown whether incriminating or not and then follow these vital words: `Both as a matter of fairness and to show the first opportunity of response by the accused to the allegations made against him by his accuser.' Those words seem to me to echo the words of the English Court of Appeal in Storey's case which is (1968) 52 Criminal Appeal Reports 337, where the court states: `In respect of a wholly exculpatory statement, a statement made voluntarily by an accused person to the police is evidence in the trial because of its vital relevance as showing the reaction of the accused when taxed with the incriminating facts. If, of course, the accused admits the offence then as a matter of shorthand one says the admission is proof of guilt and in the end it is but if the accused makes a statement which does not amount to an admission the statement is not strictly evidence of the truth of what was said but is evidence of the reaction of the accused which forms part of the general picture to be considered by the jury at the trial.' And that, it seems to me, is a statement of law."

181. The prosecutor then agreed to play the recording. As I understand the argument advanced before us, the major complaint of the applicant is that the judge did not instruct the jury to have regard to the obvious fact that in the interview, when confronted with the complainant's allegations, he "categorically, strongly and absolutely denied any offending whatsoever". A correctly formulated direction would have instructed the jury that the evidence was relevant to their deliberations as indicating the applicant's "first opportunity" response to the allegations, but that the statements made by him were not to be used as evidence of the truth of their contents. Any such instruction, however, would almost certainly have weakened the position from the applicant's perspective. It is significant that no exception was taken. The value of any such response will, of course, vary significantly according to the circumstances. An immediate and outraged denial of an allegation put to an individual may be considered by a jury to be far more impressive than a general repudiation followed by no comment responses, when confronted with specific allegations, in an arranged interview, at which his lawyer was present. In the present matter the jury heard the applicant's clear and repeated repudiation of any wrongdoing and his assertion of facts which operated in his favour. In the particular circumstances, the omission to provide an instruction on this aspect or to highlight the "no comment" answers given by the applicant, by making specific reference to them, can hardly be seen, as a reasonable possibility, to have operated to his detriment.

188. Only grounds (i) and (iii) were argued under this heading before us. Ground (ii) was addressed in conjunction with ground 4.

191. In the course of delivering his charge to the jury, the trial judge stated:

"Concerning that same matter of delay in this case you have been told by [the complainant's ex-wife], of a complaint made by her husband to her in 1995. That evidence was led in an attempt to establish that the delay of some 18 years before [the complainant] complained to anyone is not inconsistent with the behaviour of which he complained, and to rebut a suggestion made by the defence that [the complainant] has recently made up a false story for the purpose of compensation. As a general rule, persons who are compelled to submit to sexual misconduct complain about it. So absence of complaint, or long delay in complaining, may demonstrate inconsistency of conduct and falsity of the complaints when finally they are made many years later. Of course, delay in complaining does not necessarily indicate that a complaint is false. ... It is for you to say whether in all the circumstances the long delay in complaining in this case constitutes behaviour inconsistent with the happening of the alleged offences, and whether it points to a recently concocted story. In considering the evidence that [the complainant] did complain to his wife, you must bear this steadily in mind. You may use it if you see fit to accept it as negating inconsistency or recent invention." (Emphasis added.)

As I understand his Honour's statements, the jury was instructed that they could have regard to the evidence of a complaint being made in 1995 as relevant to their determination of the question whether the delay of many years before the complainant reported the alleged sexual assaults upon him was inconsistent with the offences having been committed, and of the question whether there was recent invention, in circumstances where a claim for compensation was initiated shortly after the making of the complaint. Of course, in a situation in which a complaint can be seen to have been made quite separately from and not motivated by any such claim, evidence of the complaint could be used by a jury when considering whether a complainant's conduct was compatible with the events having occurred and to rebut the suggestion that a false story may have been concocted to secure monetary compensation. However, in the present matter, in his ruling permitting evidence of the complaint to be adduced, the trial judge said:

"... having regard to its date and its relative proximity to what followed, including the claim for compensation, I cannot find that it [the complaint] is sufficiently early to be inconsistent with the suggestion that the account is a late invention or reconstruction." (Emphasis added.)

"Accordingly, the content of the complaint may not be led. That is not, however, to be said that the circumstances in which the complaint was made may not be led, nor the identity of the person against whom the complaint was made, which can also be led, and those matters are indeed conceded by [counsel]. The result is that although [the complainant's wife] may give details of the circumstances in which a complaint came to be made to her, as outlined in her statement, she may not give particulars of the complaint itself."

199. I find it extremely difficult to see how his Honour could have left the matter before the jury on this basis.

202. In the absence of any evidence as to the actual complaint made, the jury would almost certainly have assumed that the allegations made to his wife were essentially the same as those made by the complainant in the course of giving evidence. It is not clear on my understanding of the evidence when or how it came about that the complainant first approached the Catholic Church or when he first decided to do so. However, his Honour was entitled to find, as he clearly did, that, viewed in the overall time frame involved, the gap between the making of a complaint to his wife and the approach was relatively short. The fact that the allegations were not being repeated through her was incapable of addressing his Honour's finding that the complaint did not predate the claim for compensation sufficiently to rebut the suggestion that the complainant had concocted a false story.

205. Having concluded that the making of a complaint to his wife was equivocal with respect to the possibility of a "late invention or reconstruction" by the complainant for the purpose of securing compensation, and therefore incapable of providing assistance to the jury in its consideration of that possibility, the evidence could not be employed to demonstrate consistency of conduct on his part. Accordingly, it was, I consider, inappropriate for the judge to permit the evidence of even the fact that a complaint had been made.

208. The erroneous directions could not be regarded as inconsequential in the circumstances of the trial. I am of the view that both limbs of this ground must succeed.

"It would be dangerous to convict the accused on the evidence of [the complainant] standing alone. You may act on that evidence and convict the accused if you see fit to do so, but it would be dangerous upon his evidence alone, unless having scrutinised it with great care, and having considered the circumstances relevant to its evaluation to which I am about to refer, and paying heed to this warning, you are satisfied of its truth and accuracy."

"The reason for the warning is this: first, there was a delay of approximately 20 years between the offences alleged and complaint to the police, there was the same delay before the alleged offending was put to the accused man himself. There has been almost 22 years delay between the alleged offences and [the complainant] giving evidence before you concerning them."

218. He pointed out the possible effect of the passage of such a long period of time upon the recollection of the complainant and other witnesses, adverting to the young age of the complainant at the time of the alleged occurrences. His Honour placed stress on the possible difficulties found by an accused person by reason of delay, saying:

"Second, delay may result in a person accused losing the means of refuting a false allegation. Had the allegations been made soon after the alleged offences, it would have been possible to explore in detail the circumstances surrounding them, and those circumstances, and perhaps to present evidence throwing doubt upon the complainant's story, or confirming the accused's denial. By way of illustration, if someone made a false accusation against any of you in relation to something which was said to have occurred a week ago, you could no doubt readily remember what you were doing at the time in question, and calling evidence to show you were not at the relevant place, or that the event did not occur. It would probably be the same if a false allegation was made against you in relation to something alleged to have occurred even six months ago. If the allegation relates to an offence that is said to have occurred three or four years ago, it becomes that much more difficult to try and recall the situation that existed at the time, and to refute the allegation, either personally or by other witnesses. Here the delay is far longer, and obviously the longer the delay the greater the problem."

A little later, and immediately after the passage, he provided the further instruction set out earlier.[10]

225. His Honour's reference to an expectation of a complaint being made by the victim of a sexual assault was, considered in context, clearly designed to emphasize to the jury the length of the delay in the matter. The suggestion advanced in this Court that it added strength to the complainant's evidence and confirmed upon it a status that in law it did not deserve, in my opinion, lacks any merit whatsoever. Little more can be said in favour of the argument that the trial judge did not instruct the jury in accordance with the principles laid down by the High Court in Kilby v. The Queen[11] as the extracts from the charge demonstrate.

232. At one point his Honour instructed the jury that:

"I now turn to the matter of dates. The Crown asserts, and the presentment before you asserts, that the abuse of [the complainant] with which you have to deal took place between 1 January 1977 and 17 July 1978, which is, as I understand it, the date of [the complainant's mother's] car accident. The Crown in this case is bound by those dates. Therefore, before you can convict the accused you must be satisfied beyond reasonable doubt that the behaviour charged in the count that you are considering did fall within the period 1 January '77 to 17 July `78. You should therefore consider whether [the complainant] visited Mr Johnstone [sic] with anal problems in 1976. If you are of the opinion that he did, then you must ask yourselves whether that condition in 1976 was contributed to by the behaviour of the accused, or is nothing to do with it. If you are not satisfied beyond reasonable doubt that the particular offence you are considering took place in 1977/78, you would have in respect of that offence to acquit. You should also ask yourselves whether what was done to his anus, that is [the complainant's] anus, by Mr Johnstone [sic] in 1976, and by Mr Mackay [sic] in the following year, may have created a false, but genuinely held recollection, both in 1995 when the complaint was made to his wife, and now when the evidence is given before you."

236. It is clear enough that the jury had been informed, albeit through inadmissible evidence, that the complainant may have attended Mr Johnson in 1976. If they accepted that this may have been the case, then any anal problems from which he suffered around that time could not be attributed beyond reasonable doubt to any action on the part of the applicant. This, I consider, would have been apparent to them.

239. The trial judge considered that a number of possibilities arose from this information, all of which operated in favour of the applicant. First, there was the possibility that some confusion existed as to when any offending occurred. His Honour addressed that prospect by instructing the jury that they had to be satisfied beyond reasonable doubt that any offence which they were considering was committed within the period designated in the presentment. They were told that if they were not so satisfied, it was their duty to acquit the applicant. Second, it was possible that the receipt of medical treatment in 1976 was totally unrelated to any activity of the applicant. This, of necessity, would cast considerable doubt upon the reliability of the evidence of the complainant and other witnesses which related the observation of blood on a towel and his underpants to occasions involving an alleged sexual assault. Finally, the judge drew the attention of the jury to the risk that the applicant had developed a false but genuinely held recollection concerning events that had occurred many years earlier.

242. Taken in context, the instructions of the judge would have been understood by the jury and there is no realistic basis for concluding that the jury may have misunderstood the situation.

249. In support of this ground, which raises the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on the four counts on which he was convicted[12], reliance was placed upon the following assertions:

"1. The offences were alleged to have taken place in a bedroom of the complainant's family home while members of his family were present in the house. 2. The bedroom was connected to the kitchen by a coloured glass servery window. This window opened to connect the two bedrooms. It was in fact opened by the complainant's sister during one of the massages. There were other windows opening onto the verandah towards the neighbour's house at the side. 3. There was no support for the complainant in respect of any noise from the bedrooms save from his sister who claimed to have heard creaking bedsprings. This was not consistent with the evidence from the complainant and his brother that a kitchen table was carried into the bedroom for the purpose of massages, that the massages took place on the table, and that the assaults took place during the massages. 4. The assaults were alleged to have taken place during the (junior) football season of 1977. This season ended in July 1977. 5. The complainant claimed that as a result of the assaults his anus bled and that he was taken to the family doctor. This was supported by his sister who said that he complained that his anus bled and was taken to the doctor within a few days. The family doctor, Dr Sherman, said he was consulted in October 1977 for a complaint described as haemorrhoids ("blue grapes came out of his bum"). He referred the complainant to Dr Mackey who took a history which included `No bleeding'. 6. The complainant claimed that he had no problems medically until he bled as a result of being assaulted by the applicant. Medical evidence showed that he had consulted a general surgeon Neil Johnson in 1976 and received treatment for haemorrhoids. He also consulted and received treatment for haemorrhoids in December 1978. 7. When examined by Dr Sherman in October 1977, Dr Sherman saw no sign of sexual interference. When examined by Mr Mackey in November 1977, he saw no sign of trauma. 8. There were a series of inconsistencies in the evidence of the complainant as to his efforts to get compensation. He denied instructing Hollows Solicitors to seek compensation on his behalf. A letter from Hollows Solicitors was tendered indicating that they were acting on his behalf and seeking compensation Exhibit A. 9. The complainant denied seeking compensation from Mr P. O'Callaghan QC, the Independent Commissioner of the Catholic Church. Yet he visited Mr O'Callaghan on two occasions and his solicitor's letter sought referral to the compensation panel set up by the Catholic Church. 10. There was conflict as to the complainant's attendance at `Broken Rites' (a support group for those complaining of sexual assaults by members of the clergy). The complainant said that after attending once he did not go again. He told his wife he had been to other meetings but he in fact went to the pub. She said that at the time she was alive to the contradiction of him going off to a Broken Rites meeting and coming home with alcohol on his breath; she sometimes smelt alcohol on his breath when he came home. 11. There was no complaint about the applicant for 17 years after these events. 12. The applicant denied these allegations when they were put to him by the police, gave evidence on oath denying them and called evidence in support of both the legitimacy of his sports massage technique and his conduct with young men at that time."

Each of these matters was the subject of significant attention in the course of the trial and, it would be reasonable to accept, were taken into account by the jury in their deliberations.

254. Essentially the applicant raises four major aspects of the evidence which it is claimed must cast doubt upon the correctness of the jury verdict.

257. First, there were limited opportunities, it was contended, for the commission of the alleged offences and a high degree of improbability that the applicant would have engaged in activities of the kind attributed to him in a situation in which he would have been well aware that the risk of detection was extremely high. Whilst the evidence suggested that there were other persons in the general vicinity when massage sessions were conducted, it certainly did not exclude the existence of opportunities for offending. In this context, it must be borne in mind that offences were not committed on each occasion that massaging was undertaken.

260. Second, reliance was placed upon the medical histories including the possible attendance of the complainant on Mr Johnson in 1976 as indicating that no link could be made between the presence of anal problems and any conduct of the applicant. Setting to one side the evidence of the complainant's sister for reasons to which I have earlier adverted, there was evidence given by his father and mother to the effect that he had not experienced anal problems until the applicant "came on the scene". His cousin stated that she had seen him emerge from the bathroom with a towel covered in blood at a time when the applicant was present in the house. The complainant asked his mother why his "bum was bleeding". Examination by three medical practitioners failed to find any condition which would account for this bleeding. However, there was medical evidence that it could have been caused by trauma to the anus, including sexual penetration that need not have left any sign. Given that long afterwards at the time of the trial, there was a measure of uncertainty as to precisely when the offences allegedly occurred, the jury may well have accepted the evidence of the complainant, his parents and cousin on this aspect.

263. Third, there was evidence, the argument proceeded, by the solicitor's letters that the complainant was interested in securing compensation from the Catholic Church, contrary to his denials that he was so motivated. I have already addressed the evidentiary value of those letters. However, they were before the jury which, I think, must be taken to have rejected the suggestion that the complainant had concocted a false story in order to obtain money. This view was clearly open to them in the circumstances.

266. Fourth, the applicant, it was pointed out, consistently denied the commission of any offences whatever when interviewed by the police and in the evidence given by him in the trial. There is no reason to suppose that the jury members who had the distinct advantage of seeing and hearing all of the witnesses did not take those denials and his evidence into account in their deliberations.

269. For completeness I should address a further proposition advanced under this ground that the judge's response to a request by the jury during their deliberations for "your definition of indecently assaulted" invited a compromise verdict. This contention of what would amount to specific error is, I consider, unsustainable as the judge did nothing more than provide an appropriate definition in the context of the evidence. No exception was taken by counsel at the trial and none would have been warranted.

272. None of the matters drawn to our attention could, I consider, either individually or collectively satisfy the test laid down by the High Court in M v. The Queen[13] and require the intervention of this Court on the basis that the jury verdict is to be regarded as unsafe and unsatisfactory in the circumstances.

279. It follows that, by reason of the view that I have formed with respect to ground 3, I am of the opinion that this application should be granted, the appeal allowed and a re-trial ordered on counts 1, 3, 5 and 7.

[1] [1973] HCA 30; (1973) 129 C.L.R. 460 especially at 472.

[2] [1980] VicRp 1; [1980] V.R. 1 at 6.

[3] [1998] VSCA 2; [1999] 1 V.R. 534 at 539.

[4] [1960] HCA 39; (1960) 104 C.L.R. 476.

[5] [1961] HCA 86; (1961) 106 C.L.R. 23 especially at 28-29.

[6] The word "not" does not appear in the transcript, in an obvious omission given the context.

[7] Guarnaccia v. Rocla Concrete Pipes Ltd. [1976] VicRp 25; [1976] V.R. 302 at 306-7 per Gowans, J.

[8] There had been an arrangement made by the prosecutor and defence counsel under which various passages were excluded by consent.

[9] R. v. Su & Ors [1997] 1 V.R. 1 at 64-5 per Winneke, P., Hayne, J.A. and Southwell, A.J.A.

11] [1973] HCA 30; (1973) 129 C.L.R. 460.

[12] See Jones v. The Queen (1997) 191 C.L.R. 439 esp. at the bottom of 450 and top of 452.

[13] [1994] HCA 63; (1994) 181 C.L.R. 487.