R v RH [2004] VSCA 231

Court of Appeal (Vic)|2004-12-15|Before: CHERNOV and VINCENT, JJ.A. and GILLARD, A.J.A.

CRIMINAL LAW - Sexual offences - Involving female child under 16 - Appeal against convictions - Defence, denial events occurred - Evidence of complaint to victim's mother - Evidence of complaint given by mother but not by victim - A dispute whether mother actually gave such evidence - Open for jury to infer conversation did take place - Disputed that the mother's evidence could amount to a recent complaint - Complaint admissible as being recent - What is recent depends upon all the circumstances - Trial judge gave Longman warning count 9 being for common assault - Whether or not warning is necessary must depend on the circumstances - No necessity for special warning where circumstances are obvious to the jury - Mother's observations of the accused and victim could amount to corroboration of criminal acts that are closely connected - Application dismissed.

I agree that, for the reasons given by Gillard, A.J.A., this application should be dismissed.

On 1 September 2003 in the County Court, the applicant pleaded not guilty to five counts of an indecent act with a child under 16 years of age, one count of attempted incest, two counts of incest and one count of common assault. The jury found him guilty on each count. After a plea, he was sentenced to a total period of imprisonment of six years with a non-parole period fixed at four years. He now seeks leave to appeal against his convictions.

The events leading to the trial and the allegations made can be briefly summarised.

The applicant was born on 15 April 1966, is now aged 38 years, and at the time of the offences was aged between 27 and 29 years. He married Mrs X in 1993 and they lived together until mid-2002. Mrs X was the mother of the complainant who was born on 27 December 1985. At the time of the offences she was aged between eight and ten years and at the time of the trial was aged 17 years. The applicant is not her father.

The applicant was charged with nine counts, which occurred in a series of incidents on three separate occasions. The first occasion occurred on a day in the year 1994. The family was living in Carnegie at the time. Counts 1 and 2 deal with the applicant committing two indecent acts on the complainant. Counts 3 and 4 arose out of a series of incidents on a day during the year 1995 when the applicant and the family were living at Geelong. He committed two indecent acts on the complainant.

The final occasion occurred on a day in 1995 at Geelong. Counts 5 to 9 (inclusive) arose out of a series of incidents which occurred on one day. Count 5 relates to an indecent act with a person under 16. Count 6 is an attempted sexual penetration of the complainant whom the applicant knew was his stepdaughter. Counts 7 and 8 were two sexual penetrations of the complainant knowing that she was his stepdaughter. Count 9 is a common law assault.

In mid 2002, the complainant told her mother that the applicant had sexually molested her, and on 10 July 2002 the applicant moved out of the home. The complainant made two statements to the police dated 25 and 31 July respectively. The mother made a statement to the police on 2 August 2002.

On 20 August 2002, the applicant was interviewed by the police but he refused to answer any questions.

On 1 September 2003, the trial commenced in the County Court. Two witnesses were called by the Crown, namely, the complainant and her mother. The Crown did not tender any documentary evidence. The defence tendered an extract of what the complainant had said at the committal as a prior inconsistent statement.

The prosecution case closed on 12 September 2003 and the applicant gave evidence, as did a friend of his, who gave character evidence. The evidence of the applicant in chief was short and he was cross-examined for a short period. The defence case was closed. On the following Tuesday, 16 September 2003, the jury retired to consider its verdict at 11.21 a.m. On the afternoon of the following day at 3.36 p.m., the jury brought in a verdict finding the applicant guilty of the nine counts. A plea took place and he was sentenced on 7 October 2003 to separate terms of imprisonment in relation to each count, some of which were dealt with concurrently and some of which were dealt with cumulatively, ending up in a total period of imprisonment of six years.

On 21 October 2003, the applicant lodged an application for leave to appeal against conviction, relying on some 12 grounds, and on 14 September 2004 he was given leave to add seven further grounds. However, on the appeal Mr Shirrefs SC, for the applicant, argued grounds 7, 13, 14, 15 and 19. He abandoned the other grounds.

The defence case was simple. It was a complete denial that any of the events occurred. That was the factual issue which the jury had to decide. Evidence was given by the complainant supporting each count. Her evidence was to some extent supported in relation to Counts 8 and 9 by her mother. When the applicant gave evidence, his counsel asked him relation to each count whether or not the alleged events occurred. His answer was the same to each allegation - "No, it didn't". He was then cross-examined for a short period.

The verdict makes clear that the jury rejected the applicant's denial and was satisfied of the prosecution's proof beyond reasonable doubt of the elements of each count.

The complainant gave evidence that the family was living in Carnegie during the year 1994. She stated that one day she was in the loungeroom watching television when the applicant called her over and asked whether her vagina was sore. He then commenced to rub her vagina. This constituted Count 1, namely, an indecent act with a child under 16. He then pulled down his shorts and placed her hand on his erect penis and started to move it up and down. This was the subject of Count 2, being an indecent act with a child under 16. The complainant was then aged between eight and nine years.

The next occasion occurred after the family had moved to Geelong. This was in the year 1995. On this occasion the applicant called the complainant into the loungeroom, placed her hand on his penis over his boxer shorts. That was Count 3, being an indecent act with a child under 16. He commenced to kiss her, placing his tongue inside her mouth. This was Count 4, namely, an indecent act with a child under 16. The complainant was then aged between nine and 10 years.

The final occasion also occurred in Geelong in the same year. The complainant's mother left the house to purchase fish and chips. The complainant at the time was having a shower and she rushed out of the shower so that she could go with her mother, but was too late. The applicant told her to get back into the shower and he followed her into the bathroom. He lifted her onto the washing machine, bent her knees up and commenced licking her vagina, which is Count 5, namely, an indecent act with a child under 16. He then tried to place his erect penis into her vagina. He was unable to effect penetration. This was Count 6, namely, attempted incest. He then bent the complainant's knees further up and placed his penis in her anus, which was Count 7, namely, incest. The complainant screamed out in pain. The complainant's younger sister interrupted them. The applicant took the sister back to her bedroom. Whilst he was out of the bathroom the complainant climbed off the washing machine. He returned to the bathroom, ordered the complainant into the shower, and forced her down on her knees. He placed his erect penis in her mouth and moved her head back and forth until he ejaculated in her mouth. This was Count 8, namely, incest. She spat out the contents and was then told to put her mouth back on his penis. She refused to do this and he struck her on the cheek. This was Count 9, being common assault. About this time, the complainant's mother returned to the home and entered the bathroom. She observed the complainant crouching in the shower crying. The applicant was standing in front of the complainant without any clothing on his lower body and his penis erect. The mother comforted the complainant. She observed a red mark on the left side of the complainant's face.

When interviewed by the police, the applicant refused to answer any questions, which he was entitled to do.

I do not propose to state the evidence in any greater detail unless it is necessary to do so when dealing with a ground of the application.

7. Her Honour, the Learned Trial Judge erred in ruling that evidence of the mother of an alleged recent complaint, the day after the last alleged offence, was admissible. This is especially so in light of the mother's conflicting evidence that in effect nothing was said by way of disclosure until about 2 months before a report was made to the police and her evidence that the complainant had told her the day after the last alleged offence that the accused had hit her because she refused to put his penis in her mouth.

13. The Learned Trial Judge erred in directing the jury that the evidence of the complainant's mother was capable of constituting recent complaint.

During cross-examination the complainant's mother testified that on the day following her observations of the applicant and the complainant in the shower she questioned the complainant who said "she didn't want to put her mouth on [the applicant's] penis".

It is convenient to consider these grounds together. Part of the submissions concerning the complaint and its use differ from the grounds relied upon.

Before considering these grounds it is necessary to state the circumstances in which the evidence was adduced before the jury because this is central to the primary submission. The last series of incidents occurred during the year 1995 at Geelong and were committed in the bathroom at the family premises. The mother had left the home to purchase fish and chips and on her return observed the complainant crying in the shower, a red mark on her face and the applicant with his pants down and his penis erect.

The complainant's mother made a statement to the police on 2 August 2002 setting out the incident she had witnessed in the shower room. In the statement the mother said -

"I spoke to [my daughter] the next day. I asked her if [the applicant] hurt her and if [the applicant] put his penis in her tickle - which was a pet name for vagina. [my daughter] said, `No she can't remember'. I asked her if he put his penis in her bottom. She said she couldn't remember. I asked her if [the applicant] hit her? She said yes. And I asked her why? And she said because she didn't want to put her mouth on his penis."

Prior to the prosecution leading the evidence of the mother as evidence of a recent complaint, the applicant's counsel objected and the learned trial judge ruled that the prosecution was entitled to lead the conversation in evidence as a complaint.

When the complainant gave evidence she did not mention any such conversation. She was cross-examined on the topic and stated that the first person she told was her mother, and this was in mid 2002. It was put to her that she could confide in her mother, to which she agreed and she stated that she did not want to hurt her mother. She said that although she had had the opportunity to tell her mother she was not previously able to do so. She agreed in cross-examination that she first reported the incidents to the police two weeks after her mother and the applicant broke up. This was in the year 2002. The clear effect of her evidence was that no conversation took place the day following the incidents in the bathroom.

However, when it came to giving evidence, the mother did not give evidence of what she had said, in her statement. She gave evidence that she did ask of the complainant the following day, "what had happened?" She said in her evidence - "At that point she just kept getting really upset and saying, `I don't want to talk about it, I can't talk about it' - so I left it." Pressed to give as much detail as possible, the mother said -

"That's - that is basically the conversation, she got too upset at that point and I just thought it was better to leave it until she was a little bit more ready to talk about it."

She was asked did she attempt to talk with her at any other stage. The mother said -

"Yes, I tried to several times over the years when I was allowed to talk to her about it, I tried to talk to her but she just kept getting sick - wouldn't talk about it, if I ever mentioned it, she'd start crying and saying `Mum, please don't talk to me about it, please don't', so I just had to leave it."

What she said in her statement was raised in cross-examination.

In cross-examination the mother was asked about observing the mark on the complainant's face. There was an issue whether it was the right or left-hand side. The mother said it was on the left side of the face whereas the daughter had it on the right side. The mother maintained what she observed was correct. She was then asked about the discussion with the complainant the day following the bathroom incident. Defence counsel (Mr Shirrefs did not appear at trial) commenced the topic by asking the witness to re-state what she had said in evidence-in-chief, namely, that all the complainant had said was that she could not talk about it. The cross-examiner continued, suggesting that if she had been told of inappropriate touching or behaviour, the mother would have done something about it. She agreed she would have acted instantly. It was put to her that she would have kicked the applicant out and she said "No, I wouldn't have kicked him out". She repeated that statement.

It is necessary to set out the cross-examination. The mother having said she would not have kicked the applicant out, the cross-examination continued -

"If so, for example, she said to you at that time - the next day: Mum, he hit me because I didn't want to put my mouth on his penis. You would say that that was an outrageous thing to be saying, wouldn't you?---Yes. You would believe your daughter, wouldn't you?---Yes. Because you had a close and trusting relationship with her?---Yes. You would have acted instantly, wouldn't you?---Yes. You would have gone straight to the authorities?---No. You wouldn't have?---No, I would have confronted [the applicant] about it first. It's not the case with the nature of that allegation, if that was the sort of thing that she said to you, that you would have immediately said: `You are not stepping foot back into this house until this whole matter is clarified'; would that not have been your reaction?---No. So you would have been happy if that ... ?---Not happy, no. You would have been prepared, if that allegation had been made to you, by [your daughter] the next day, after you saw what you saw ... ?---M'mm. To just let him continue in the house?---No, I did not just let him continue. You see when you made your statement to the police in August of last year you said - this is the second page of the statement, Your Honour - `I spoke to [my daughter] the next day, I asked her if [the applicant] hurt her and if [the applicant] put his penis in her tickle - which was the pet name for vagina ... `?---That's correct. [My daughter] said, no she can't remember ... ?---M'mm. `I asked her if he put his penis in her bottom, she said that she couldn't remember ... `?---Yes. I asked her if [the applicant] hit her and she said yes, and I asked her why and she said because she didn't want to put her mouth on his penis'?---Yes. That's what you said in your statement?---That's right. I suggest to you if that is what [your daughter] had said to you, at that time, the first thing that you would have done is not only just confronted him you would have banned him from that house; do you agree with that? ---No, I don't agree with that. You were prepared to let him stay in the house with an allegation that ...?---No, we were going to go to counselling about it, he promised he would go to counselling and seek help. Once again, that is just nowhere in your statement?---No. Is it?---No, it is not. No, it isn't. I suggest that you are just making this up?---I'm not. That just did not happen at all?---Yes, it did. I know what I saw and I know what happened."

The decision to cross-examine on the topic was one for defence counsel. It was no doubt done for a reason although there was the risk of adducing into evidence something which had hitherto not been part of the evidence. It was contended that it was done to establish a prior inconsistent statement by the mother; a matter going to her credit.

Ground 7 attacks the ruling made by the learned trial judge that the evidence of the mother was evidence of a recent complaint and therefore admissible. Mr Shirrefs argued that question under ground 13, but with a different emphasis to the matters argued before her Honour. Defence counsel submitted to the learned trial judge that the statement was inadmissible in light of the clear unequivocal evidence of the complainant that the first time she spoke to her mother was in the year 2002. In the course of discussions defence counsel conceded that if the conversation did take place it could qualify as a recent complaint. Her submission was that the complaint was inadmissible because the complainant had not given any evidence that the conversation took place.

Her Honour ruled that on the authority of Breen v The Queen[1] the complaint was admissible, even though the complainant had not given any evidence of making any such complaint. Relevant to the ground now relied upon, her Honour said -

"It is not in dispute that the relevant evidence of [the mother], if accepted by the jury, satisfies the criteria for admissibility as to a recent complaint."

Mr Shirrefs' primary submission was that the conversation was introduced as evidence of a prior inconsistent statement, that the conversation did not become evidence of the facts asserted and that "the complainant's mother did not adopt it as true". Mr Shirrefs clarified his written submission. He accepted that it did not depend upon the mother adopting as true the contents of the prior statement. A complaint in a sexual case is admitted as an exception to the hearsay rule going to the credit of the complainant. The evidence of the content of the complaint has no probative value in relation to any factual matters in contest. Barwick, C.J. summarised the law in Kilby v. The Queen[2]:

"The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence."

What Mr Shirrefs submitted was that on a proper reading of the transcript, it was clear that there was no evidence that the conversation actually took place. He submitted the mother gave the evidence admitting that the conversation was set out in her statement, but did not give evidence that the conversation took place. This was not argued below.

The first question for consideration is, on a fair reading of the transcript, was it open to the jury to infer that the conversation took place? In considering this question, it must not be overlooked that the appeal court is at a disadvantage. The transcript can never capture the atmosphere of the trial or the way the evidence was given in the courtroom. The way the question is asked and answered cannot be determined from the transcript.

In my opinion, the effect of the mother's evidence was that the conversation took place. This is made clear by the question, "That just did not happen at all?" and her response, "Yes, it did. I know what I saw and I know what happened." This was in the context of statements made by her in her police statement and in my view it was open to the jury to infer from that evidence that the mother was saying the conversation took place.

I am reinforced in that conclusion by three matters. First, the persons in the best position to observe the way the evidence was given, and to draw inferences from what was said and the manner in which it was said were the judge, the jury and counsel. It is clear that defence counsel was of the opinion that there was evidence that the conversation occurred. This is clear from what she said in her final address to the jury. She made an attack upon the credibility of the mother. And in so doing drew attention to the complainant's lack of evidence of any discussion, and the fact that the mother's evidence was that this conversation took place after the "alleged bathroom incident". She also attacked the complainant's evidence when she said that she would confide in her mother but she posed the question how could this be correct - "Because her mother's evidence on one hand is that the next day the complainant confided in her that [the applicant] allegedly hit her because she would not put his penis in her mouth."

In her charge to the jury, the judge proceeded on the basis that if the jury accepted the evidence of the mother as to the conversation, it could amount to a recent complaint. Neither counsel sought any exception in relation to the factual matter of whether or not the evidence was capable of establishing that the conversation took place.

Secondly, at no stage in the trial did defence counsel, or the prosecution, or the judge raise the issue whether it was open on the evidence that the conversation had in fact taken place. Thirdly, there is evidence in which the mother informed the jury that she had made a statement to the police, that she used it to refresh her memory and that it contained important matters. She agreed that her memory of the events as stated in the statement would have been better than at trial.

In my opinion, it was open on the evidence for the jury to infer that the conversation did take place.

In her charge, the judge left the question to the jury as to whether or not they believed the mother that the conversation had taken place. After referring to the way the evidence was adduced and the criticisms made of the mother, her Honour said -

"You must weigh up what you make of [the mother] as a witness. If you decide to accept what she says that the complainant said to her the day after the alleged offences in the bathroom, then that evidence can be used by you for a limited purpose only."

Mr Shirrefs did not make any complaint of the way the learned judge charged the jury in respect to the question of a recent complaint and how the jury could use it.

Mr Shirrefs next submitted that the conversation could not be regarded as evidence of a complaint, its only relevance being as a prior inconsistent statement bearing on the credit of the mother. He stated that it was a prior inconsistent statement which bore upon the credit of the mother and that the learned judge failed to direct the jury that it could be used as evidence of a prior inconsistent statement bearing on the credit of the mother. The evidence was capable of being a complaint. It was also arguably capable of being a prior inconsistent statement. Those propositions are not inconsistent. The evidence is capable of fulfilling a two-fold purpose.

Mr McArdle on behalf of the Crown submitted that it was not a prior inconsistent statement. I do not agree. The mother gave evidence that there was no conversation the following day because of the reluctance of the child to talk about the topic. She repeated that in the early part of her cross-examination until the reference in the police statement was drawn to her attention. In my opinion, it was a classic example of a prior inconsistent statement. In the police statement she stated that such a conversation took place. In her evidence-in-chief and in the early part of her cross-examination she did not depose to any such conversation. It was inconsistent with her sworn evidence that a conversation occurred on the following day. It was a piece of evidence which could be used to attack the credit of the mother. And, there is no doubt, defence counsel so used the prior inconsistent statement to attack the mother's evidence and her credibility.

The learned trial judge directed the jury on the law concerning prior inconsistent statements and how the jury could use the prior inconsistent statement in assessing the credibility of a witness. It is correct that the trial judge did not specifically refer to the conversation referred to in the mother's statement but her charge has to be considered in the context of the trial. The one and only factual dispute at the trial was whether or not the accused did to the complainant as alleged by her and supported to some extent in relation to Counts 8 and 9 by the mother. There were only three witnesses concerning the events, namely, the complainant, her mother and the applicant. Defence counsel's address focused on the inconsistencies between the evidence of the complainant and her mother, and also the inconsistencies within the evidence of each witness. The judge made reference to the inconsistencies and changes in the evidence and although she did not specifically refer to the mother's statement concerning the conversation, the jury could be in no doubt that her Honour's directions relating to prior inconsistent statements concerned any statement made by any witness which the jury concluded was a prior inconsistent statement. The jury could have been left in no doubt as to the allegations of inconsistencies, and the law concerning the use of a prior inconsistent statement. In my opinion it was unnecessary for the learned trial judge, in the context of the trial, to specifically identify one alleged prior inconsistent statement. Her directions concerned any prior inconsistent statements found by the jury and there is no doubt, both from the charge and defence counsel's address to the jury, that the jury were well and truly apprised of all possible inconsistent statements. This ground of complaint is not established.

That brings me to the other ground of complaint, namely, that the "jury should have been directed that they were not entitled to treat the evidence as a recent complaint".

The argument in respect to this ground of complaint is two-fold. First, it was submitted that the complaint was inadmissible because the complainant had expressly stated no such conversation took place. Secondly, it was submitted that the prerequisites to the admission of a complaint were not established in that the complaint was not spontaneous and was the result of leading or suggestive questioning.

The complainant did not give evidence of any such conversation and indeed the effect of her evidence was that no such conversation occurred. However, it is well-established that a complaint made to a third party is admissible, notwithstanding that the complainant did not give evidence of the complaint, provided the complainant did give evidence - see Breen v. The Queen[3]. Because the evidence concerns the credibility of the complainant, it must follow that evidence of a recent complaint is not admissible unless evidence is given by the complainant. This is obvious. The evidence of complaint could have no effect if the complainant did not give evidence. The complaint would have no evidence to support. See Ugle v. The Queen[4]. Mr Shirrefs submitted that there is a distinction between cases in which the complainant gives no evidence of having made a complaint and the situation, as in the instant case, in which the effect of the complainant's evidence was that she did not make any such complaint. He frankly stated that there was no authority for his proposition. In my opinion, the submission is incorrect. The rationale for permitting the evidence to be given is that it provides some evidence of the consistency of the complainant's version of the events. It is essential to the admission of the evidence that she does give evidence implicating the accused in the sexual activity. But it is not essential to the admission of the evidence of recent complaint that she has a memory of making the complaint. There can be any number of reasons why a complainant may have no memory of having made the complaint. Familiar examples would be the passage of time, the trauma of the event, and the deliberate decision to exclude all distressing matters from her memory. In my opinion, the evidence is admissible even though the effect of the complainant's evidence is that she made no complaint.

In the end it is a matter for the jury. The jury may not believe the evidence given by the mother. However, if the jury did believe the conversation took place, despite the specific assertion by the complainant that it did not, it would be open to the jury to place such weight as it thought appropriate on the evidence to provide some support to the credibility of the complainant.

The final matter raised by Mr Shirrefs was that the evidence should not have been admitted in the circumstances because the complaint was not spontaneous.

To be admissible, the complaint must be "recent". What is recent must depend upon all the circumstances. A period of say, one day between the criminal act and the complaint may be too long, on the other hand seven days may not. It depends upon the circumstances.

It was submitted that it is only admissible if made at the first reasonable opportunity. Reference was made to R v. Freeman and ors[5]. In Freeman the complaint was made within a matter of hours although as a result of the complainant being asked whether she had been raped. At 5 the Full Court said:

"The ultimate question must always be does the `complaint', in the circumstances in which it was uttered, tend to buttress the prosecutrix's credit as a witness. This, of course, is a jury question, and that question can only arise if the trial judge has first determined to admit the complaint. That decision involves the formation by the trial judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proffered evidence, of a judgment whether a complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge."

A matter that must be taken into account is how proximate was the complaint made to the event itself.

In R. v. McNeill[6], the Full Court[7] stated the principles concerning the admissibility of a complaint. Their Honours said[8]:

"Therefore the proposition of law is that a statement made by a woman or child at the first reasonable opportunity in the circumstances after the occurrence is admissible, whether it is made by way of spontaneous complaint or whether it is made in answer to a question by some other person. As to the class of statement in this case, however, although opinions are varied as to the admissibility of such a statement, the authorities have always been clear that it must, to be admissible at all, be made at the first reasonable opportunity in the circumstances after the assault."

But what is the first reasonable opportunity must of necessity depend upon all the circumstances. There may be myriad reasons why there was a short delay before a complaint was made. Matters such as getting over the distress and upset of what was an horrific event, coming to terms with the effect upon the family, and not wanting to upset the family relationship are matters that immediately spring to mind. The situation was well summarised by McPherson, J.A. in Sailor v. The Queen[9] when his Honour said -

"We were referred to no authority suggesting that what is reasonable ought to be judged in an abstract way divorced from the sensitivities of the particular complainant or from the circumstances in which she found herself placed at the time. Individuals respond to crisis or stress in different ways and for various reasons. It would be surprising if the question whether or not a complaint was made at the earliest reasonable opportunity fell to be determined according to some set pattern of behaviour predicated on a hypothetical model complainant. The explanations given by the complainant for what she did or failed to do were necessarily relevant in deciding what was a reasonable opportunity in this case."

The same point was made by Gaudron, J. in M. v. The Queen[10].

With respect to the submission that the complaint was not spontaneous in the sense that it was extracted as a result of leading questions, I refer to what the Court of Criminal Appeal said in R. v. Norcott[11]. The Lord Chief Justice, speaking for the Court, said -

"But the Court (in R. v. Osborne) meant to guard against the admission of evidence of statements which have really been put into the girl's mouth. The question for the Court is whether the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished story of what had happened. That she may have been persuaded to tell her unassisted and unvarnished story is no reason why the evidence of her having made the statement should be rejected."

In my opinion, the observations made by their Lordships are apposite here. In R. v. Osborne[12] Ridley, J., speaking for the Court, said at 556 -

"If the question merely anticipates a statement which the complainant was about to make, it is not rendered inadmissible by the fact that the questioner happens to speak first."

The complainant was asked a number of questions but the assertion concerning the reason why she was struck was spontaneous. Further, in my opinion, given all the circumstances, the complaint was made at the first reasonable opportunity because of the effect of the horrific event on the mind of this young complainant. She was aged about nine years at the time, had been subjected to what must have been a disgusting episode to her and had been struck by the applicant. Given those circumstances, her reluctance to talk initially and her mother's reticence to broach the subject on that day, is an explanation for the complaint taking place some 24 hours later.

In reaching this conclusion, I do not overlook the fact that defence counsel conceded that the conversation, if it took place, could in law amount to a recent complaint. It was a concession which in my opinion was properly made. The circumstances were such that, in my opinion, the complaint was made at the first reasonable opportunity and was spontaneous in the circumstances. The submission that the complaint was not admissible, fails.

"14. The Learned Trial Judge erred in directing the jury that the Longman warning, in which she included a corroboration warning, did not apply to Count 9 on the Presentment."

Count 9 was concerned with the common assault charge. The facts in relation to that were that the applicant ejaculated into the complainant's mouth, which was Count 8, she spat out the contents and he told her to put her mouth back on his penis. When she refused to do so he struck her on the cheek. The latter constituted the common assault.

At common law, in sexual cases, the judge was required to give a warning to the jury to the effect that it was dangerous to act on the uncorroborated evidence of the complainant. The historical rationale for this rule was stated by Deane, J. in Longman v. The Queen[13]. Legislation has been passed which has had the effect of altering that rule of practice. Reference is made to the Crimes (Sexual Offences) Act 1980 amended by Crimes (Sexual Offences) Act 1991, s.3 and subsequently amended by the Crimes (Amendment) Act 1997, s.61(1). Section 61 deals with warnings that are to be given to juries in offences of a sexual nature.

The effect of s.61(1) is that a judge must not warn or suggest in any way to the jury that the law regards complainants in sexual cases as an unreliable class of witnesses and if any suggestion is made that there was a delay in making any complaint the judge is required to inform the jury there may be good reasons why there may be a delay. Section 61(2) is important. It provides:

"(2) Nothing in sub-section (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice."

The general rule remains that a warning should be given if in the circumstances it is necessary to avoid any perceptible risk of miscarriage of justice. The question of the necessity for a warning, especially in sexual cases where there has been a delay, was discussed in Longman v. The Queen[14]. In R. v. Robinson[15] the Court of Appeal said[16] -

"Longman is authority for the proposition that while judges should no longer warn juries that victims of alleged sexual offences are as a class unreliable, nevertheless the general rule remains that a warning should be given `whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."[17]

There is no doubt in the present case that the learned trial judge did give a Longman warning to the jury of which no complaint is made. She however stated that the warning related to Counts 1 to 8 and not Count 9, being the common assault. It was submitted that in the circumstances her Honour was incorrect in doing this because the reasons for giving the Longman warning must, of necessity, have applied to the common assault count.

It is clear from Longman that the warning the Court was referring to in that case concerned sexual cases and hence required what was described as a special rule. But the court also made it clear that there may be circumstances where a general warning had to be given. In Longman[18], Brennan, Dawson and Toohey, JJ. said -

"Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."

Whilst the rule is that the Longman warning must be given in relation to sexual cases, especially where there has been delay, apart from that rule, it may be necessary to give a warning about any particular matter to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. Reference to the authorities shows examples such as where there has been delay, or where there are witnesses who may have a motive to support the prosecution case or may have demonstrated some substantial animosity towards the accused whilst giving evidence. Whether or not the warning is necessary must depend upon the circumstances.

The nature of the warning will depend upon the circumstances. The point was emphasised by Brennan, J. in Bromley v. The Queen[19] where his Honour said in relation to a witness whose mental capacity was in question -

"It follows that there is no universal rule of practice that a trial judge should give a warning - much less a warning according to a prescribed formula - whenever a jury might convict on the uncorroborated testimony of a witness who is suffering or who has suffered from some form of mental disorder. It may be that the circumstances will require some caution to be given - not because of the particular rule of practice affecting witnesses suffering from some form of mental disorder but because a warning is necessary to put the defence case fully and fairly."

Also see the observations of Doyle, C.J. in Corrigan v. The Queen[20]. In the end the warning must be given where there is a perceptible risk of miscarriage of justice arising from the circumstances of the case if the warning is not given.

Was the warning necessary in respect to Count 9? Was there a perceptible risk of miscarriage of justice if the warning was not given? In order to answer these questions it is necessary to consider the matters in issue between the parties, the evidence, submissions of counsel and the learned judge's directions.

The one factual matter in issue was whether the events occurred as alleged by the complainant. The offences did not occur according to the sworn evidence of the applicant.

The learned trial judge in her charge carefully directed the jury on the fact-finding exercise which it had to perform, emphasising the importance of carefully considering the evidence, drawing attention to the inconsistencies in the evidence and that the ultimate questions of fact were for the jury alone. The judge did give the Longman warning, confining it to Counts 1 to 8 (inclusive). The jury was directed with respect to problems associated with a substantial passage of time. Defence counsel spent much of her address highlighting the factual differences, inconsistencies between the complainant and the mother, and the effect of delay. Count 9 was the last of five offences which occurred in the space of less than one hour during the early evening on a day in Geelong. The time between Counts 8 and 9 was a matter of minutes. The jury, in considering Counts 5 to 8 (inclusive) would have also considered Count 9 at the same time or immediately thereafter. Given that the jury was satisfied that Counts 5 to 8 (inclusive) were proven beyond reasonable doubt after a careful consideration of the facts which included the effect of delay, in my opinion the jury would have also appraised the factual matters concerning Count 9 in the same context and with the same degree of care. It is also pertinent to observe that the mother's evidence provided confirmation of the common assault. In my opinion, it was unnecessary in the circumstances for the learned trial judge to include the Longman direction in relation to Count 9. The failure to do so did not result in any perceptible risk of a miscarriage of justice. Hence there was no necessity to extend the warning to Count 9. It is also pertinent to observe that defence counsel did not take exception to her Honour's charge in this respect.

"15. The Learned Trial Judge erred in directing the jury that the evidence of the complainant's mother of her observations of the applicant and the complainant in the shower were capable of corroborating Count 8 on the Presentment."

The first eight counts were concerned with offences of a sexual nature. There was a substantial delay between the offences and trial.

After directing the jury in accordance with the Longman principles, the judge directed the jury that they should consider whether there was any evidence which corroborated the complainant's evidence. She gave careful directions in relation to the nature of corroborative evidence and then referred to the mother's evidence concerning what she saw when she walked into the bathroom in the house at Geelong. Having referred to that evidence, the judge said -

"If you are satisfied beyond reasonable doubt of this evidence of [the mother], then it is, as a matter of law, capable of being corroborative evidence of what [the complainant] alleges happened in the shower, that is Counts 8 and 9."

The complaint that is made is that the evidence of the mother could not have provided support for Count 8. It was said that it was capable of corroborating the common assault count but not Count 8 which was the placement of the erect penis in the complainant's mouth and the ejaculation. Count 9, namely, the common assault, happened within a very short space of time after the complainant had spat out the spermatozoa in her mouth. She was told to put her mouth back on the applicant's penis, which she refused, and the applicant then struck her. It was at that time the complainant's mother entered the bathroom.

It was submitted that the evidence was only capable of corroborating Count 9, being the common assault, and was not capable of corroborating Count 8, which was the incest count.

In Doney v. The Queen[21], the High Court said -

"The essence of corroborative evidence is that it `confirms', `supports' or `strengthens' other evidence in the sense that it `renders (that) other evidence more probable': Reg v. Kilbourne (1973) AC 729, per Lord Simon of Glaisdale at p 758. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it `shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed but that it was committed by the accused'." (Emphasis added)

Their Honours went on to say that "It is well settled that corroboration may be in the form of circumstantial evidence".

It was submitted that the independent evidence which implicates the accused in the crime charged is confined to showing that the crime was committed. It was submitted that the observation of the complainant on her knees in the shower, a red mark on her face, upset and crying, facing the applicant who had his pants down and his penis erect, strengthened the common assault Count 9, but it was incapable of strengthening the complainant's evidence that prior to that the applicant engaged in oral sex with her. I do not agree. What had immediately occurred prior to that observation was the ejaculation by the applicant into the mouth of the complainant, and the complainant spitting out the contents. Demand was made to repeat the episode and she refused. She was then struck. It was very soon after that that the mother made the observation that she did. The question is, does the evidence of the mother confirm, support or strengthen the evidence of the complainant and thereby render that evidence more probable? In my view, the answer to that question must be yes. It was capable of corroborating the evidence of the complainant in respect to Count 8. Whether or not it did, of course, was a matter for the jury. But in my view, it was clearly capable of supporting the evidence of the complainant. What the mother observed, in my view, was independent testimony which connected or tended to connect the applicant with the commission of Count 8.

In Rex v. Baskerville[22] Lord Reading, C.J., speaking for the Court at p.665 said this in relation to evidence capable of corroborating the commission of an offence -

"It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime."

What the mother saw confirms the material circumstances of Count 8 and the identify of the applicant in that crime. I also refer to R. v. Rayner [23] where Brooking, J.A. summarised the effect of the cases, pointing out that corroboration need not be the direct evidence that the applicant committed the crime but it is sufficient if it is circumstantial evidence connecting the applicant with the crime.

I am reinforced in my conclusion by reason of the fact that defence counsel did not raise any exception to her Honour's charge in respect to this issue. In my opinion, this ground fails.

"19. The Learned Trial Judge erred in failing to direct the jury that the Longman warning not only applied to their consideration of the evidence of the complainant but also to their consideration of the evidence of the complainant's mother."

The learned trial judge warned the jury that it would be unsafe to convict on the complainant's evidence alone and identified the matters referred to in Longman v. The Queen, supra, including delay affecting memory, as well as a forensic disadvantage to the applicant. Her Honour gave no such warning concerning the evidence of the complainant's mother. It was submitted that in failing to do this the learned trial judge erred.

As Longman makes quite clear, the general law requires a warning to be given whenever it is considered necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

The question does arise, was it incumbent upon the trial judge to give a warning about the mother's evidence with particular reference to motivation to tell lies, possibility of joint fabrication with the daughter, and the forensic disadvantage suffered by the applicant as a result of delay.

As observed above, the judge carefully directed the jury in relation to the fact finding exercise, had highlighted the concerns about delay in relation to the complainant's evidence, and also highlighted the inconsistencies between the evidence of the complainant and the mother. Cross-examination by defence counsel and her address to the jury raised all these questions of motivation, fabrication and the effect of delay. Given the circumstances, and the fact that the mother's evidence was basically confined to what she observed in the bathroom, in my opinion it was unnecessary in the circumstances to give a warning when considering the mother's evidence. In my view, a warning was not necessary in the circumstances as there was no perceptible risk of a miscarriage of justice arising from the failure to give such a warning in the circumstances. The circumstances were obvious to the members of the jury and in accordance with the careful directions given by the trial judge they would have very carefully considered the evidence of the mother without the necessity of any special warning.

It has to be borne in mind that the mother's evidence was of an incident which was important and shocking and unlikely to have been forgotten by the applicant, the mother or the complainant. In the circumstances, it is my opinion that no miscarriage of justice occurred because there was no obligation in the circumstances to warn the jury about the mother's evidence. This ground fails.

In my opinion, the applicant has failed to establish any of his grounds of appeal, and accordingly his application should be dismissed.

[17] Per Brennan, Dawson and Toohey, JJ. At 86.

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Judgment (134 paragraphs)

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