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[2009] VSCA 173
appellant. Leave granted, the appeal treated as instituted instanter and allowed, and the convictions set aside; acquittals were entered on the second-presentment counts, and a retrial was ordered on the...
The Court of Appeal dealt with two separate trials. In the second trial, the complainant's memories were largely based on recollections she said emerged through dreams and hypnotherapy. The majority concluded that the jury had not been properly warned about the specific risks of hypnosis-based memory and that the evidence, considered as a whole, left a real doubt about guilt. Those convictions were set aside and acquittals entered. In the first trial, the majority found that the complaint to the complainant's mother could not be treated as recent for the much earlier alleged events, and that the directions created a risk of misuse of complaint evidence and misunderstanding of forensic disadvantage caused by delay. The majority set those convictions aside and ordered a retrial on the relevant counts, while Neave JA dissented on the first-trial appeal.
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In R v WB [2009] VSCA 173, the Victorian Court of Appeal considered appeals arising from two consecutive County Court trials. WB had been convicted of historical sexual offences against his daughter in the first trial and against a neighbour's daughter in the second. The appeal was heard by Buchanan and Neave JJA and Hansen AJA. The central evidentiary questions differed between the trials: the first concerned complaint evidence and the effect of delayed allegations on the accused's ability to defend himself; the second concerned a complainant's account of memories that had become clearer through dreams and hypnotherapy.
The first presentment concerned alleged offences against WB's daughter between December 1971 and December 1975, when she was aged between nine and 13 ([2]–[6]). The prosecution evidence included allegations of sexual conduct at the family home and a later incident at Wonga Park. The daughter said that, about six months after the alleged Wonga Park penetration, she told her mother that her father had “done things to me that he shouldn't have”. Her mother said she had no recollection of that conversation and did not know of sexual allegations until police spoke to her in 2005 ([8]–[9]).
The first-trial appeal challenged the use of that alleged complaint as recent complaint and the way the judge directed the jury about delay and forensic disadvantage. Buchanan JA concluded that the complaint could not be recent for the earlier events, separated from the later events by years. He also considered that the directions created a real risk that the jury might use the complaint to bolster credibility on the earlier counts and might misunderstand when the accused suffered forensic disadvantage ([14]–[25]). Neave JA disagreed that these matters caused a miscarriage of justice in the first trial ([55]–[63]). Hansen AJA agreed with Buchanan JA ([64]).
The second presentment concerned offences said to have occurred between 1978 and 1980 against a neighbour's daughter, who was then aged between six and nine ([26]–[31]). The complainant said that dreams about abuse began in 1999, after the birth of her daughter, and that memories became clearer through recurring dreams. She also underwent hypnotherapy in 2005, in part to determine what had happened ([34]–[35]). The majority concluded that the jury needed a more specific warning about the dangers of memories recovered through hypnosis, and that the evidence as a whole left a real doubt about guilt ([39]–[46]).
The Court granted leave and allowed the appeals. It ordered acquittals on the counts in the second presentment. By majority, it set aside the first-trial convictions and ordered a retrial on the counts in the first presentment other than count 8 ([47], [52]–[64]).
The majority's reasoning about complaint evidence turned on the connection between the alleged complaint and each alleged incident. Buchanan JA accepted that the words used by the daughter were capable of being understood as referring to sexual misconduct because their context was the allegations in evidence ([11]). But a complaint's subject matter and its recency were distinct questions. Recency depended on whether it could be regarded as a spontaneous account of the incident, with the time between event and complaint relevant to that assessment ([13]).
The alleged complaint was said to have occurred up to two years and seven months after the events underlying counts 1 to 5. Buchanan JA held that it could not be treated as recent for those counts ([12], [14]). The Crown argument that a complaint potentially recent for later events could support credibility about earlier events was rejected. The two groups of incidents were discrete and separated by about two years. Shared protagonists and the allegation of sexual misconduct did not turn them into a single series for this purpose ([15]). Buchanan JA also rejected the argument that credibility was indivisible: the jury had to consider the counts separately, and the complaint could not automatically be transferred from the later incident to the earlier one ([16]).
The majority identified a problem in the directions because the trial judge had not prevented the jury from using the complaint to bolster the daughter's credibility on the earlier counts. Although the defence had elicited the complaint evidence, Buchanan JA considered that its forensic purpose of challenging credibility did not prevent a direction limiting its use ([17]–[18]).
On the onus issue, however, Buchanan JA found no error. The judge's statement that the complaint could not be used if it was not made at the first reasonable opportunity had to be read alongside the rest of the charge. The jury had been told that it had to decide whether a complaint had been made and whether the other conditions for use were satisfied. Read as a whole, the directions did not create a real risk of shifting the burden of proving delay to the defence ([19]–[20]).
The forensic-disadvantage issue produced a disagreement between Buchanan JA and Neave JA. Buchanan JA was concerned that the judge made the effect of delay on WB's ability to defend himself depend on whether the daughter had complained to her mother. A complaint to the mother had not, on the face of the evidence, brought the allegations to WB's attention or enabled him to investigate them at the time. Although the jury heard that the allegations were first put to him 30 to 35 years after the alleged events, Buchanan JA considered that the conditional wording created a real danger of misunderstanding ([21]–[24]). Neave JA read the directions as a whole and considered that the judge's detailed explanation of lost opportunities to make enquiries and test the allegations adequately conveyed the disadvantage ([60]–[62]). The majority position was Buchanan JA's, with Hansen AJA agreeing ([52]–[53], [64]).
For the second trial, the majority focused on the nature and source of the complainant's recollection. She described initially vague memories, recurring dreams, uncertainty about whether the dreams were real, and regular hypnotherapy intended to find out what had happened ([34]–[35]). Buchanan JA explained that a significant danger of hypnosis is that a person in a heightened state of susceptibility may be influenced by suggestions or cues, intentionally or otherwise, and may unconsciously incorporate them into an account ([36]). The trial judge referred to potential distortion and instructed the jury to scrutinise the evidence carefully, but did not explain why hypnosis could create distortion or unreliability. Buchanan JA held that this was insufficient ([38]–[41]).
The majority then assessed the safety of the verdicts in light of the evidence actually given. Buchanan JA considered that the complainant's unaided recollection was extremely vague and uncertain and that the substance of her account of the alleged offences depended on what she said hypnotherapy had revealed ([45]). He entertained a real doubt about guilt and concluded that it could not be resolved simply by the jury's opportunity to see and hear the witness, because the credibility concerns were not explained by the manner of her testimony ([46]). Hansen AJA agreed with the reasons concerning the second trial ([53]).
The judgment's contribution is best described by reference to the specific propositions it states, rather than as a complete account of Australian evidence law. It applies a contextual approach to complaint evidence: a complaint need not use express language of sexual misconduct if its context makes that meaning available ([11]). It also emphasises that recency must be assessed in relation to the particular incident. A complaint potentially recent about a later event does not thereby become recent for earlier, separate events ([13]–[16]).
The judgment refers to R v Freeman in connection with the question whether a complaint is capable of being viewed as a spontaneous account ([13]). It also compares R v Knigge, Suresh v R and R v HRA when considering the argument that the events formed a series ([15]). The extract does not set out the full reasoning of those decisions, so the judgment's own stated application is the reliable basis for describing the rule here: common identity and similar alleged conduct did not make the two discrete groups of incidents a series for the use of this complaint ([15]).
On hypnotically recovered evidence, Buchanan JA described safeguards said to have been applied in New South Wales and New Zealand. Those safeguards included restricting the evidence to matters recalled before hypnosis, preserving the original recollection, and conducting hypnosis under specified recording and independence conditions ([37]). He noted that those requirements had not been met in this case, but the issue before the Court was the adequacy of jury warnings, not a direct ruling that this evidence was inadmissible ([38]–[41]). The judgment therefore supports the narrower proposition that a jury warning may be required independently of expert evidence, because the dangers of hypnosis were treated as matters of judicial knowledge ([41]).
The extract does not describe a pre-existing Victorian rule in comprehensive terms or provide a survey of later developments. It is therefore not possible, on this source alone, to state a complete “before and after” account of the law. What the reasons do establish is the Court's approach in this appeal: specific explanation of the risks of hypnosis-based recollection was required, and general references to possible distortion and careful scrutiny did not adequately communicate those risks ([39]–[41]).
At [15], Buchanan JA said that shared protagonists and alleged sexual misconduct did not create “a series of offences to all of which the complaint could be related”. In plain English, a complaint about one episode cannot automatically support the credibility of allegations about a separate episode just because the same people are involved and the allegations resemble each other.
At [16], Buchanan JA said the jury were required to consider the counts separately. This matters because the evidence might be relevant to one alleged incident but not another. The jury's assessment was not necessarily all-or-nothing across every count.
At [24], Buchanan JA identified a “real danger” that the jury were misled about forensic disadvantage. The point was that a report to the complainant's mother did not necessarily remove the accused's inability to investigate the allegations when they were fresh. The problem was the way the direction linked the disadvantage to whether that report had been made.
At [39], Buchanan JA said the judge had to explain why testimony based on recovered memory could be distorted or unreliable. In everyday terms, it was not enough to tell jurors that hypnosis might affect memory. They needed to understand the relevant mechanism of risk, including the possibility of suggestion influencing recollection, and they needed to assess the evidence with great care.
At [45], Buchanan JA described the complainant's unaided recollection as “extremely vague and uncertain”. He contrasted that with an account whose substance was said to have emerged through hypnotherapy. That evidentiary feature was central to the majority's assessment of the second-trial verdicts, rather than a peripheral credibility point.
At [52], Buchanan JA stated that the order should be a retrial on the first-presentment counts other than count 8. This was not the position of every member of the Court: Neave JA would have dismissed the first-trial appeal, while Hansen AJA agreed with Buchanan JA ([53], [63]–[64]).
The complaint-evidence reasoning is relevant where an alleged complaint is relied on as supporting a complainant's credibility across multiple counts or incidents. The key questions suggested by the judgment are whether the words, read in context, are capable of referring to the alleged misconduct; how much time passed before the complaint; which particular incident it concerns; and whether the alleged events are genuinely a series or instead discrete incidents ([11]–[16]). The decision specifically cautions against using a complaint potentially recent for later conduct to bolster credibility about earlier, separate allegations merely because the alleged offender and complainant are the same ([15]–[16]).
The forensic-disadvantage reasoning is relevant where a trial direction connects the effect of delayed allegations on the accused's ability to investigate with whether a complaint was made to someone else. The judgment shows the importance of distinguishing a complaint to a third party from notice to the accused or an opportunity to investigate. The Court divided on whether the directions in this case, read as a whole, adequately explained the disadvantage ([21]–[24], [60]–[62]).
The hypnosis reasoning is relevant where a witness's account depends materially on memories said to have been recovered or clarified through hypnotherapy. The facts particularly noted by Buchanan JA included uncertainty about whether dreams were real, vague unaided recollection, hypnosis intended to discover what happened, and an account whose substance depended on material said to have emerged through that process ([34]–[35], [45]). The judgment requires attention to the specific risk of suggestion and to whether the jury was told why the evidence could be distorted, not merely that it might be ([36], [39]–[41]).
The supplied judgment extract does not contain decisions issued after R v WB and therefore does not establish how later courts treated its reasoning. It would not be grounded in this source to claim that later courts followed, distinguished, limited or overruled it.
The cases listed in the judgment are authorities considered or cited by the Court in 2009, not later treatment of R v WB. For example, R v Freeman is cited on the spontaneous-account question ([13]); R v Knigge, Suresh v R and R v HRA are referenced in considering whether separate incidents could be treated as a series ([15]); and several authorities are mentioned concerning the dangers of hypnosis-based testimony ([36]–[37]). The judgment cites M v R in connection with its conclusion that the second-trial verdicts were unsafe ([46]).
Accordingly, the judgment's own analysis can be identified, but its subsequent precedential reception cannot be assessed from the provided text. A separate search of later judgments would be needed to answer that question reliably.
Several matters are left unresolved or are not determined by the extract. First, Buchanan JA did not decide that the complaint made six months after the later events was in fact recent. He assumed that possibility for the purpose of addressing whether it could support the earlier counts ([15]). The case therefore establishes the limit on transferring such a complaint to separate earlier incidents, not a definitive ruling on the six-month interval in every factual setting.
Second, the judgment does not set out a comprehensive test for deciding when incidents form a “series”. It holds that the common identity of the parties and the alleged sexual character of the conduct did not suffice on these facts, where the incidents were discrete and separated by about two years ([15]). How other features might establish a series is not resolved in the extract.
Third, the Court's discussion of safeguards for hypnotically induced evidence describes requirements applied in New South Wales and New Zealand, but does not decide that failure to comply with those requirements automatically excludes evidence in Victoria ([37]–[41]). The Court decided that the jury warning was inadequate and that the second-trial verdicts were unsafe on the evidence before it. The relationship between admissibility safeguards and the admissibility of particular evidence in other settings is not fully determined here.
Fourth, although Buchanan JA said the jury warning was required without expert evidence, the judgment does not provide an exhaustive model direction for every case involving recovered memories or hypnosis ([39]–[41]). It states the essential point that the jury must understand the reasons for potential distortion and must scrutinise the evidence with great care.
Finally, the disposition on the first presentment reflects a divided Court. Buchanan JA and Hansen AJA supported setting aside the convictions and ordering a retrial on specified counts; Neave JA would have dismissed that part of the appeal ([52]–[64]). Buchanan JA also left the practical question whether a retrial could proceed, given WB's health, to the Director of Public Prosecutions in light of a physician's opinion ([48]–[52]). The judgment therefore records the appellate disposition, but not the later decision about whether that retrial occurred.
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R v WB (Unreported, County Court of Victoria, Judge Murphy, 19 December 2008)
Criminal law - Sexual Offences - Evidence of complaint - Complaint related to sexual misconduct - Complaint made two years and seven months after events the subject matter of the charges not capable of amounting to recent complaint - Forensic disadvantage to accused not removed by a complaint not brought to the attention of the accused - Memory recovered by hypnotherapy - Trial judge failed to warn the jury of the dangers inherent in testimony based upon memory recovered by hypnotherapy - Verdicts unsafe and unsatisfactory.
1 After two consecutive trials in the County Court, the applicant was found guilty of a number of sexual offences against his daughter and another young girl.
2 The first trial was concerned with offences alleged to have been committed against the applicant's daughter. There were six counts of indecent assault of a girl under the age of 16 years, two counts of gross indecency with a girl under the age of 16 years and one count of incest. The offences were said to have taken place between December 1971 and December 1975, when the complainant was aged between nine and 13 years and the applicant was between 32 and 35 years' old.
3 The principal witness was the complainant. She gave evidence that on a summer afternoon she was in a swimming pool with the applicant at their house in Burwood. The applicant encouraged the complainant to straddle him while he had an erect penis (count 1). The applicant then told the complainant to hold his penis in her hand while he lifted her up and down, for a period of some ten minutes (count 2). The applicant told her that she was his favourite child, that this was an act of love and he pulled her swimsuit aside and proceeded to touch her vaginal area (count 3). At the same time, the applicant was tongue kissing the complainant (count 5). The applicant then proceeded to digitally penetrate the complainant's vagina to the extent of the first knuckle of his finger (count 4).
4 The complainant said that a year later, after the family had moved to a house in Wonga Park, while the applicant's wife was out working, she felt unwell one Saturday evening and went into the applicant's bedroom. The applicant invited the complainant to join him in bed. The applicant was naked and forced his daughter to take off her pyjamas. He then made her hold his penis for a short time and grabbed her wrist, moving it up and down (count 6). The applicant played with the complainant's clitoris (count 7). The applicant parted the complainant's legs and penetrated her vagina with his penis (count 9).
5 Two years later, the applicant punished the complainant by grabbing her wrist, putting her over his knee, pulling down her pants and smacking her on the genital area, saying, 'This what you get when you're being bad, this is punishment' (count 10). The applicant made his young son watch. His son gave evidence that he found the event disgraceful and demeaning and said that the complainant was screaming in pain.
6 At the conclusion of the trial, the jury found the applicant guilty on each of the foregoing counts.
7 The applicant seeks leave to appeal against the convictions on a number of grounds. Those grounds which were argued were:
Ground 1: The learned judge erred in his directions on recent complaint and in particular he erred:
(a) in leaving the alleged complaint to the complainant's mother as capable of mounting to evidence of recent complaint;
(b) in directing in a manner intended to reverse the onus of proof with respect to delay in complaint.
Ground 2: The learned judge erred in his directions on forensic disadvantage resulting from delay; and in particular he erred:
(a) in making the applicability of the direction as to forensic disadvantage contingent upon the jury's "accepting that there was no complaint about [these matters] by [the complainant] to her mother".
The final ground of appeal, which was pursued, was that the verdicts were unsafe in the sense that an aggregate of the errors or defects identified in other grounds caused the trial to miscarry.
8 The evidence of complaint, with which ground 1 is concerned, was elicited from the complainant in cross-examination. The complainant said that she told the police that, while she lived at Wonga Park, she told her mother that the applicant 'had done things to me that he shouldn't have' and that her mother responded, 'That can't be possibly be true.' In re-examination the complainant was asked:
When you tried to tell your mother about what had happened to you, what was her reaction?
Her reaction was we were passing in the corridor and I said, I was trying to get her attention, and I said dad's done things he shouldn't have. And in a hurriedly over busy mothered, overstressed, it was a very stressful household to live in, that she just went, "Oh, that couldn't possibly have happened", and, and, and kept going and ...
The prosecutor then asked the complainant when she had complained to her mother. The complainant said it was 'about six months after the penis inside me at Wonga Park', which must have referred to the offence the subject matter of count 9. That was also when the events the subject matter of counts 6 and 7 allegedly occurred.
9 The complainant's mother gave evidence that she had no recollection that the complainant told her at Wonga Park that 'dad had done things that he shouldn't have' or that she had said 'That can't be possibly be true'. She said that she was unaware of any allegations of a sexual nature against the applicant until the police told her of the allegations in 2005[1].
10 In his charge to the jury, the trial judge said the jury could use the evidence of complaint in assessing the complainant's credibility. Counsel for the applicant submitted on appeal that the evidence of complaint should not have been left to the jury because it was not open to the jury to find that the complaint related to sexual conduct or that it was made at the first reasonable opportunity.
Whether complaint related to sexual misconduct
11 While the complaint was not framed expressly as one relating to sexual misconduct, I think it is going too far to say that it was not capable of amounting to such a complaint. The context is all important. The evidence emerged when the complainant was asked by the applicant's barrister about a statement she had made to the police. The statement concerned the allegations of sexual misconduct made by the complainant in her evidence. It is hardly surprising that counsel for the applicant did not submit that the evidence could not constitute recent complaint. In my view it was capable of being so viewed. The trial judge properly left to the jury the question whether it did so.
12 In submitting that it was not open to find that the complaint was made at the first opportunity, counsel for the complainant relied upon the fact that the complaint may have been made up to two years and seven months after the incident giving rise to counts 1 to 5 and up to six months after the incident giving rise to counts 6, 7 and 9.
13 The critical question was whether the complaint was capable of being regarded by the jury as a spontaneous account by the complainant of the incident the subject matter of the counts.[2] The proximity of the complaint to the event in question is one factor to be taken into account in answering that question.
14 In my opinion the complaint could not be regarded as recent in respect of offences said to have occurred more than two-and-a-half years earlier. I did not understand counsel for the respondent to contend otherwise. Rather, he submitted that the complaint was capable of being viewed as recent and spontaneous in respect of the events the subject matter of counts 6, 7 and 9 and consequently the complaint could be used to support the credibility of the complainant's evidence with respect to the earlier incidents because all the incidents formed a series.
15 I do not accept this submission. For the sake of argument I will accept that a complaint made six months after the events the subject matter of counts 6, 7 and 9 could be regarded as recent.[3] Nonetheless, the events giving rise to counts 1 to 5, 6, 7 and 8 did not form a series. Rather, there were two discrete incidents separated by a period of some two years. The common elements of the identity of the protagonists and the fact that the applicant was said to have been guilty of sexual misconduct on both occasions did not create a series of offences to all of which the complaint could be related.[4] The trial judge said nothing to prevent the jury using the complaint to bolster the credibility of the complainant in respect of the events the subject matter of counts 1 to 5.
16 Counsel for the respondent also submitted that the question of the credibility of the complainant was not divisible. If the complaint bolstered the complainant's credibility in respect of the later incident, it must have the same effect in respect of the earlier incident. Again, I do not agree. The jury were required to consider the counts separately. In assessing the complainant's evidence in respect of the second incident, the jury could take into account the complaint. That consideration may have been the element which produced the requisite satisfaction with the Crown case.
17 Counsel for the applicant did not submit to the trial judge that the evidence of complaint should not be left to the jury to use in assessing the credibility of the complainant's evidence as to the first incident. Indeed, counsel for the applicant appears to have viewed the complaint as one recently made. He said in the course of discussion with the trial judge:
In relation to the making of a recent complaint, clearly that only comes from [the complainant].
18 Counsel for the respondent in this Court pointed out that it was counsel for the applicant who led the evidence of complaint, and presumably did so to obtain the forensic advantage of using the mother's denial of a making of any complaint to damage the complainant's credibility. The achievement of that object, however, could not have been imperilled by a direction that the evidence of complaint could not be used in assessing the credibility of the complainant's evidence as to the first incident. In my view, the absence of such a direction did constitute a miscarriage of justice, which should now be corrected.
Whether jury directions reversed the onus of proof
19 The trial judge, in his charge to the jury, said:
If you find that the complaint was not made at the first reasonable opportunity, then you cannot use the complaint evidence to support her credibility.
Pursuant to ground 1(b), counsel for the applicant submitted that the direction had the tendency to reverse the onus of proof. The question was not whether the jury accepted that there was no recent complaint. Rather, it was incumbent upon the prosecution to prove that there was a recent complaint before the evidence could be used.
20 In my view the statement highlighted by counsel for the applicant is not to be viewed in isolation. At the outset of his directions as to the manner in which the jury were to approach the evidence of complaint, the trial judge said that before the evidence could be used in assessing the complainant's credibility, the jury was required to determine whether the complaint was made, that it was a complaint as to conduct with which the accused was charged and was made at the first reasonable opportunity. His Honour reiterated on several occasions that the jury could only use the evidence if they accepted that the complaint was made. Later, in a separate part of the charge dealing with the consequences of delay, the trial judge said that those consequences depended upon whether the jury found there was delay. In my opinion there was no real risk the jury may have transposed the directions and thought that the defence was required to establish that there had been delay.
Forensic disadvantages to accused caused by delay in complaint
21 As to ground 2, the trial judge told the jury that the delay in complaint affected the applicant's ability to defend himself against the charges in that he may have lost the opportunity to make enquiries, explore and test the allegations and raise any defence other than a simple denial. His Honour prefaced these remarks by saying:
There is a third significant consequence of the delay in these matters being brought to light if you accept that there was no complaint about them by [the complainant] to her mother.
22 Counsel submitted that as the complaint went no further than the complainant's mother, it did not remove the forensic disadvantages under which the applicant laboured, which could only be met by bringing the complaint to his attention before he lost the ability to investigate the matters alleged against him.
23 Apart from the words quoted from the charge set out in paragraph 21, above, the trial judge told the jury that '[T]hese directions are necessary solely because of the delay in complaining about the offence if you accept that [the complainant] did delay ... '. On the other hand, the trial judge did tell the jury that the allegations were first put to the applicant between 30 and 35 years after the offences were alleged to have taken place.
24 It is difficult to know what the jury may have made of these directions. They were told the facts from which they may have deduced that the complaint of which the complainant gave evidence did not remove the forensic disadvantages under which the applicant laboured. I consider, however, that the unequivocal terms in which the jury were instructed that the impact of the delay upon the applicant's ability to defend himself depended upon whether the complaint was made created a real danger that the jury were misled and may have thought that the danger did not exist because they accepted that the complaint had been made to the complainant's mother.
25 For the foregoing reasons, I am of the opinion that the first trial miscarried and the convictions ensuing from the trial should be set aside.
26 The second trial concerned offences alleged to have been committed against the daughter of a neighbour, comprising five counts of indecently assaulting a girl under the age of 16 years and three counts of procuring the commission of an act of gross indecency with a girl under the age of 16 years. The offences were said to have been committed between 1978 and 1980, when the complainant was between the ages of six and nine years.
27 The applicant had established a miniature railway at his property, which was an attraction to local children. The complainant gave evidence that when she was at the applicant's house playing with antique telephones, the applicant tongue kissed her (count 1) and did so on a number of other occasions (uncharged acts). She said that the applicant encouraged her to touch the applicant on the outside of his trousers when he had an erection (count 2), which occurred about six to nine months after the initial offence. In the September holidays in 1979, the complainant said that she visited the applicant's property and stayed for lunch. The applicant took the complainant into his bedroom and showed her pornographic magazines and a pornographic video. He encouraged her to lick his penis (count 3) and placed his penis in her mouth (count 4). The complainant said that she was upset, crying and begged the applicant to stop. The applicant proceeded to masturbate in her presence.
28 In January 1980, the complainant accompanied the applicant to a butcher's shop. The complainant said that the applicant lifted her on to a rail so she could see the butchers. She said the applicant 'made [her] give him an open mouth kiss in front of all these men' (count 5).'
29 On another occasion in January 1980 the applicant picked up the complainant from her school, took her to his house and there kissed her, undid her pants and touched her on the vagina (count 6). He then digitally penetrated the complainant, causing vaginal bleeding (count 7).
30 On a later occasion when the complainant visited the applicant's house, he was walking around the house without any pants on. He asked the complainant to kiss his penis (count 8).
31 At the conclusion of the trial the jury returned verdicts of guilty on counts 1 to 8 and not guilty on count 5.
32 The applicant seeks leave to appeal against the convictions. Two grounds of the application were pursued in this Court.
The learned judge erred in failing to direct the jury in respect of the complainant's evidence about recovering memories through dreams and hypnotherapy; and in particular he erred:
(a) in failing to direct that, in view of the complainant's concessions in that regard and the potential unreliability of her evidence, it would be dangerous to convict on her evidence unless, having taken heed of that warning and having scrutinised her evidence with great care, they were satisfied beyond reasonable doubt that her evidence was truthful, reliable and accurate;
(b) in failing adequately to alert the jury to the dangers of acting on the complainant's evidence.
34 The ground is based upon the evidence elicited from the complainant in cross-examination. She said that in 1999, after the birth of her daughter and while she was suffering depression for which she was taking anti-depressant medication, she began having dreams about sexual abuse by the applicant. The complainant said that she began to remember more and more as the dreams went on. When she first started having those dreams, she was not 100 per cent sure that what she was dreaming was real. But the fact that they kept recurring led her to believe the dreams must have been real. Before she experienced these dreams, she had not told anyone that the applicant had sexually abused her. When asked whether all the specific incidents came to her through this dream process, she said:
Certain things are more highlighted but growing up I always - I remembered him kissing me very clearly but a lot of the other things were a bit blurry and they did became clear through my nightmares.
When asked, 'So you say that you remembered that there had been some kissing but nothing else before you had these dreams?', she answered, 'It was very vague'. The complainant agreed that she was not sure that the dreams were real until at least six months after the dreams started.
35 Between January and April 2005, the complainant engaged in hypnotherapy at least once a week in order 'to find out the truth of what happened ... in the past'. Prior to the hypnotherapy, apparently in relation to the penetration incident, the complainant said that she had 'a recollection of the bleeding, but somehow mentally [she had] blocked exactly what happened until [she] was hypnotised for that particular incident because [she] wasn't sure whether he had actually raped [her] properly or what he had done. [She] didn't know what had gone on.' The hypnotherapy involved hypnotising the complainant, taking her back to a period when she was a child and walking 'into his house and then basically remembering what happened from there'. Before she had hypnotherapy, the complainant had no recollection of how she came to be bleeding from the vagina. The complainant also underwent hypnotherapy 'to see where or to confirm the beliefs [she] had about all the conduct that [she said the applicant] had done to [her]'. Whilst the complainant asserted that she knew that the applicant had done something wrong to her, she wanted 'to find out if what [she was] remembering was the truth'.
36 There are a number of authorities on the dangers inherent in evidence based upon recovered memory achieved by hypnotherapy.[5] Perhaps the greatest danger is that, in the heightened level of susceptibility to suggestion which is characteristic of a person in an hypnotic state, the witness may subconsciously be influenced by suggestions or cues planted intentionally or otherwise during hypnosis.[6]
37 In New South Wales and New Zealand it has been held there are a number of requirements that should generally be met before hypnotically induced evidence can be admitted. The hypnotically induced evidence must be limited to matters which the witness has recalled and related prior to the hypnosis. In other words, evidence will not be allowed where a subject matter was recalled for the first time under hypnosis or thereafter. The substance of the original recollection must have been preserved in written, audio or video recorded form. The hypnosis must have been conducted in accordance with the following procedures. The witness must give informed consent to hypnosis, the hypnosis must be performed by a person who is experienced in its use and is independent of the police, the prosecution and the accused. The witness's original recollection and other information supplied to the hypnotist concerning the subject matter of the hypnosis must be recorded in writing in advance of the hypnosis and the hypnosis must be performed in the absence of the police, the prosecution and the accused.
38 In the present case those requirements were not met. Counsel made no objection to the complainant's evidence and did not lead any evidence as to any dangers attending hypnotically induced evidence. In his charge, the trial judge recounted the part played by dreams and hypnosis in the recollection of the complainant but for the most part did so in the context of directions as to the significance of delay in complaint. At the conclusion of this section of his charge, the trial judge said:
You have her evidence about her dreams and her nightmares. You have her evidence about her need to go to therapy - hypnotherapy. You must carefully weight the effect of the delay and the possible effect on her memory of the delay and the potential for distortion due to recovery of memory, due to the dreams, due to the nightmares and the hypnotherapy. You must scrutinise her evidence very carefully and you will have to be satisfied beyond reasonable doubt that it was honest and reliable before you can bring in a verdict of guilty.
You must scrutinise her evidence with great care. Look at the evidence carefully, cautiously and thoroughly bearing in mind the warnings I have given you.
Counsel for the applicant did not take any exception to these directions.
39 In my opinion the trial judge was required to warn the jury of the dangers inherent in testimony based upon memory recovered by means of hypnosis. To refer only to 'the potential for distortion due to recovery of memory, due to dreams, due to nightmares under hypnotherapy' was not sufficient. His Honour was required to convey to the jury the reasons why testimony based on recovered memory was capable of being distorted and unreliable. He should have told the jury that it was necessary to scrutinise the complainant's evidence with great care before acting upon it.
40 Counsel for the respondent submitted that the directions as to possible deficiencies and dangers in the evidence based upon dreams and memory recovered by hypnotherapy depended upon whether there was expert evidence to found the directions.
41 In my opinion, the requirement to give the directions did not depend upon evidence. The decided cases exemplify judicial knowledge of the technique of hypnotherapy and the dangers inherent in testimony based upon memory said to have been recovered by the technique.
42 The second ground of the application was that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence.
43 The catalogue of weaknesses in the Crown case advanced by the applicant's counsel was as follows. The complainant's evidence was uncorroborated. She made no complaint for over 20 years and did not go to the police until 2005. The delay in bringing the matters to the attention of the authorities and to the applicant meant that the applicant was denied the opportunity of taking steps to defend himself and making any investigation. The applicant was only six or seven years of age when the incidents occurred. The complainant's evidence was to a degree uncertain and unreliable having regard to the concessions made by the complainant as to her recovering memory through dreams and hypnotherapy. There was evidence to suggest that the applicant did not live at Heathmont until after the time at which the complainant swore that the first two incidents occurred at Heathmont. The jury acquitted the applicant on count 5. Counsel for the applicant submitted that there was no reason to acquit on that count unless the jury had a reasonable doubt about the truth, accuracy or reliability of the complainant's evidence. The complainant's evidence was contradicted in one respect by her sister's evidence. In relation to count 1, the complainant said that, when she got home that evening, in order to explain her absence for so long, she lied to her parents at the suggestion of the applicant by saying that she had been at a friend's swimming pool for the day when in fact she had been with the applicant. In cross-examination the sister conceded that in her diary she recorded that she went looking for the complainant and found her at a friend's pool. There were inconsistencies in the complainant's evidence. The complainant said in evidence in chief that she was wearing trousers at the time of the incidents the subject matter of counts 6 and 7, but in an earlier statement had said that the applicant lifted up her skirt.
44 Not all the matters advanced by counsel for the applicant appear to me to constitute grounds for concluding that the verdicts were unreasonable. Long delay often attends trials of sexual offences against children. The acquittal on count 5 may be explained by the circumstance that it was based upon evidence that the applicant made the complainant give him an open mouth kiss in front of men in a butcher's shop. The jury may have entertained a doubt about the nature of the kiss bearing in mind that it occurred in public, and may have acquitted the applicant on that basis. The complainant's general recollection of events was supported by her sister's evidence derived from her diary entries. The inconsistency concerning the clothes which the complainant was wearing is of limited importance.
45 On the other hand, the testimony of the complainant was largely based upon memory said to have been achieved by hypnotherapy. From the cross-examination of the complainant, it appears that this was not a case in which a free standing recollection of events was assisted or supplied with details as a consequence of hypnotherapy. Rather, the complainant's unaided recollection was extremely vague and uncertain. The complainant could not distinguish dreams from reality. The substance of her account of the circumstances constituting the offences was based on the matters said to have been revealed to the complainant by hypnotherapy. The Crown case depended upon that testimony.
46 Upon consideration of the whole of the evidence led in the second trial, I entertain a real doubt as to the guilt of the applicant. I do not consider that doubt can be resolved by the advantage enjoyed by the jury in seeing and hearing the complainant give evidence, for the evidence lacked credibility for reasons which are not explained by the manner in which it was given. In my opinion, the verdicts based upon the evidence should be set aside.[7]
47 For the reasons I have stated, I am of the opinion that the application for leave to appeal against the convictions on the counts in both presentments should be granted, the appeal treated as instituted instanter and allowed and the convictions set aside. If the verdicts on the counts in the second presentment are set aside as unsafe and unsatisfactory, there should be verdicts of acquittal on those counts. The question that arises is whether an order should be made for retrial or acquittals in respect of the counts in the first presentment.
48 Counsel for the applicant has submitted that there should be an order for acquittal. He relies upon what he terms weaknesses in the Crown case, the period of 224 days the applicant has spent in custody, his poor health and his age of 80 years.
49 As to the applicant's health, he has a medical history of two strokes, vascular dementia, deafness, Parkinson's disease, Padget's disease, hypertension, depression, macular degeneration, bowel cancer and pneumonia. With the exception of the first and last three conditions, the applicant continues to suffer from the disabilities I have listed.
50 The applicant was accommodated in a hospital at Port Phillip Prison. On 8 May 2009, he suffered from a serious fall which caused fractures in his right hip. He was transferred to a ward at St Vincent's Hospital, and remains there.
51 Recent reports by a consultant psychologist state that the applicant may have suffered from a further stroke shortly prior to being incarcerated. His deafness was more pronounced and he suffered from recurring urinary tract infections and a cataract effecting his right eye. On 19 May 2009 the psychiatrist reported:
Mr [WB] is now in a frail state of health. He is deteriorating on several fronts physically ... I believe there is an additional element of acute confusion, mainly manifest as poor concentration and is given to making rather illogical contradictory statements. ... In my opinion there is now no option but for Mr [WB] to be accommodated in a specialised psycho-geriatric facility.
On 29 June 2009 the psychiatrist reported that his understanding was that the applicant's life expectancy 'would be in the category of weeks rather than several months'. The psychiatrist said that ideally the applicant should be placed in a geriatric hospital or hospice.
52 I recognise that the applicant's health may well preclude a retrial. I consider, however, that the question whether a retrial takes place should be made in the light of the opinion of a physician rather than a psychiatrist, and I would leave the matter to be determined by the Director of Public Prosecutions. In my opinion the order of this Court should be that the applicant should be retried on the counts in the first presentment other than count 8.
53 I have had the advantage of reading Buchanan JA's draft reasons for judgment and gratefully acknowledge his Honour's description of the factual background to the applicant's convictions. I agree with his Honour that the convictions in the second trial must be set aside, for the reasons that he gives. In my opinion, however, the appeal against the convictions arising out of the first trial should be dismissed.
54 The applicant is now suffering from very serious disabilities and it is desirable that judgment in this matter be delivered as soon as possible. Having regard to his
very short life expectancy, my reasons are somewhat shorter than would otherwise have been the case.
55 So far as the first ground of appeal is concerned I will assume, for the reasons given by Buchanan JA, that what the complainant said to her mother was not capable of amounting to a recent complaint, at least in relation to counts 1 to 5.
56 In my opinion, however, the admission of the daughter's evidence that she had complained to her mother did not give rise to any miscarriage of justice. Except in the case of count 9 (where the complainant's brother said he had witnessed her being smacked on the genital area by his father), the complainant was the only witness to the alleged offences. It would have been self-evident to the jury that the question of her credibility was the central issue in the case. If they had any doubt on that matter, they were required to acquit the applicant.
57 In these circumstances, I do not see how the complainant's credibility could have been bolstered by the fact that she said, in response to a question in cross-examination, that she had told her mother that her father 'had done things to [her] that he shouldn't have'. Either the jury believed the complainant's evidence relating to the commission of the various counts or they did not.
58 If the jury had a reasonable doubt about the complainant's evidence, they would necessarily have had a reasonable doubt about her evidence that she had complained to her mother. Thus her evidence that she told her mother what her father had done would have been self-evidently useless in supporting the Crown case.
59 If the jury had no reasonable doubt that the offences occurred, the complainant's evidence of what she told her mother would not have enhanced her credibility. No exception was taken to his Honour's jury direction on this matter. In these circumstances, I do not think that ground 1, standing alone, would justify the setting aside of the convictions on the counts in the first trial.
60 I now turn to ground 2, which was that the judge erred in his jury directions about the forensic disadvantage to Mr WB caused by delay, because he incorrectly told the jury that
[t]here is a third significant consequence of the delay in these matters being brought to light if you accept there was no complaint about them by [the complainant] to her mother.
61 It is unfortunate that in that sentence his Honour linked the issue of forensic disadvantage to the fact that the complainant made no complaint to her mother. However, when this comment is read in context, it seems to me that his Honour adequately directed the jury on the issue on delay. Following the offending passage he said:
This is the impact of the delay on [WB's] ability to defend himself against the charges. You have three incidents here, alleged to have occurred in the household. [WB], the accused man, lost the opportunity to make enquiries at or close to the time of the alleged incidents as to who might have been present, whether he was working or not, or been away on a particular weekend or evening because of the delay.
[WB] has lost the ability to explore the alleged circumstances in detail soon after the offences were said to have occurred. Such an exploration may have uncovered evidence which may have thrown doubt upon the complainant's allegations or confirmed his denial of the charges.
[WB] has lost the means of testing [the complainant's] allegations, which would have been available had there been no delay in the prosecution. The complainant is not able to identify the occasions on which the offences are alleged to have occurred with any specificity: she wasn't able to give a particular date on any of the particular events - summer time in relation to the pool incident; six months after they moved into Wonga Park in relation to the bedroom incident. This makes it difficult for [WB] to raise any defence other than a simple denial. That's the impact of the delay. They're the factors, the consequences of the delay and the impact on [WB's] ability to defend himself against these charges.
I instruct you that as a matter of law, a direction of law, that you must take these disadvantages into account when determining whether the prosecution has provided [WB's] guilt beyond reasonable doubt.
62 In my opinion, these instructions sufficiently alerted the jury to the forensic disadvantage caused by the delay, and would not have been understood by the jury as applying only if they were not satisfied that the daughter had complained to her mother.
63 I agree with Buchanan JA that the other grounds of appeal relating to the convictions in the first trial are not made out. For these reasons I would dismiss the appeal against the convictions arising out of the first trial.
[1] The evidence of complaint was admissible notwithstanding that it was not confirmed by the complainant's mother. See R v Duell [1964] Qd R 451; R v J (No 2) [1998] 3 VR 602.
[2] See R v Freeman [1980] VicRp 1; [1980] VR 1, 5 (Starke, McInerney and Murphy JJ).
[3] Compare R v Knigge [2003] VSCA 94; (2003) 6 VR 181. See also Suresh v R ([1998] HCA 23; 1998) 102 A Crim R 18.
[4] Compare R v HRA [2008] VSCA 56.
[5] See for example, R v McFelin [1985] 2 NZLR 570; R v Horsfall (1989) 51 SASR 489; R v Jenkyns (19993) 32 NSWLR 712; R v Tillott (1995) 38 NSWLR 1.
[6] See R v Jenkyns, above, 715 (Hunt CJ at CL).
[7] M v R [1994] HCA 63; (1994) 181 CLR 487.
R
W B [2009] VSCA 173
(2003) 6 VR 181
(1989) 51 SASR 489
(1995) 38 NSWLR 1
(1994) 181 CLR 487
Leave granted, the appeal treated as instituted instanter and allowed, and the convictions set aside; acquittals were entered on the second-presentment counts, and a retrial was ordered on the first-presentment counts other than count 8.