Credibility directions
241 The first matter that arises, in this respect, concerns the failure of his Honour to give a direction in accordance with the decision in Crofts v The Queen (1996) CLR 427, by way of a counterbalance to that given in accordance with S 107 of the Criminal Procedure Act 1986.
242 It was entirely appropriate that his Honour inform the jury, in accordance with this Section, that the absence of a complaint or a delay in making a complaint, do not necessarily indicate that the allegation was false, and that there may be good reasons why a complainant may delay making a complaint, or remain silent about it.
243 However, it has become customary since Crofts for that direction to be accompanied by a reminder that the inconsistency of conduct, which the High Court assumes to be implicit from the absence of, or a delay in, the making of a complaint by a person who had been sexually assaulted, can adversely affect the complainant's credibility. Current authority favours the view that such a direction should be given as a general rule: Kilby v the Queen (1973) 129 CLR 460 at 465; R v Davies (1985) 3 NSWLR 276 at 278, R v Omarjee (1995) 79 A Crim R 355 and Miletic SC VIC CA 9 August 1996.
244 So far as these decisions assume that, as a matter of ordinary human experience, victims of sexual assault will complain promptly of the assault, then I express my reservation as to the correctness of such a proposition, both generally and specifically in relation to children. While in relation to other forms of criminality it might be expected that a prompt complaint will be made by a victim, I am by no means persuaded that the same expectation exists in relation to sexual assault. Both trial experience and an understanding of the dynamics of sexual invasion, an event that involves multiple and complex emotions of shame, guilt, embarrassment, conflicting loyalties, inexperience, fear and threat lead me to suspect that this assumption is flawed. I also express my reservation as to whether judicial insight into such a matter has any advantage over the experience of lay persons, drawn from the community, sufficient to justify a mandatory direction of the kind sought.
245 Nevertheless, I respect as authoritative the current line of decision both in the High Court, and at appellate level in this State and elsewhere, in respect of this matter. Their effect is to interpret the legislation in a way which would not sterilise complainants from critical comment concerning the impact of delay or silence, so far as their credibility is concerned. In substance, they call for a balancing direction to be given where the particular facts of the case justify that course.
246 The reservations I have, as to the assumption which underlie the balancing direction, do however underline the importance of the qualifications suggested in Crofts:
"Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness. The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false. So long as the purpose of the legislation, to rid the law of such stereotypes, is kept in mind, and the terms in which the legislation is expressed are followed, judges striving to assist juries in their consideration of the facts are unlikely to fall into the kind of error that occurred in this case."
247 In this regard, it is not to be overlooked that, in Crofts, there was a serious misdirection so far as the trial Judge had assumed that a Kilby direction was no longer permissible, and so far as the jury was directed "as a matter of law" that the lack of complaint about the offences immediately after they happened, would not permit of an inference that the complainant was lying about them. That clearly went too far, and denied to the jury an opportunity of bringing their common sense and experience of life to the case, so far as it concerned this aspect of their evaluation of the evidence.
248 Understood in this way, and approaching a summing up by reference to whether, in its full context, and in the particular circumstances of the trial, it would be unbalanced for there to be no reference to silence or delay in relation to credibility, my concerns are to a degree alleviated.
249 The present is a case where a strong Longman warning was given, along with a clear warning concerning consistency or inconsistency of account. It is also one where it may be assumed, both from the terms in which the statutory direction was given, (in particular so far as it was expressed in terms that this "does not necessarily indicate", and "there may be good reasons", and from the jury questions concerning the reason for the late complaint, and also concerning the dates of the complainant's statements, that they were well alive to the possibility that inaction, particularly for the lengthy period involved, could reflect upon the complainant's credibility.
250 Similarly to Spigelman CJ, I would not be minded to allow the appeal on this ground were it to stand alone. However, when taken in conjunction with the second matter to which objection has been taken, I have, with some reservations, come to the conclusion that the jury were insufficiently assisted in relation to the complainant's credibility.
251 This second aspect of the appellant's submission concerns the observation by his Honour:
"It is up to you how you deal with the evidence and how you find your verdicts, but you may consider that it would be very difficult to find him guilty on one and not guilty on others. You either might accept the complainant as a truthful, accurate, credible witness or you do not. It is difficult to see how."
252 Although the final sentence of this paragraph appears to have been cut short, the message conveyed is clear enough, namely that the jury might have a difficulty in coming to a different conclusion between the various counts charged. It was, however, a direction that watered down the requirement for the jury to consider each count separately by reference to the evidence relating to it.
253 Moreover, although it seems not to have had that result, (since differing verdicts were returned), it potentially risked inviting an all or nothing approach. It also potentially invited a form of tendency reasoning, whereby the jury would consider it appropriate to transfer acceptance of guilt on one count for which there was convincing evidence, to a finding of guilt upon the other counts where the evidence was not so clear, or where a residual doubt may have arisen.
254 Of more immediate relevance, however, is the submission that the directions were inadequate in not including the instruction propounded by Dunford J in RAT, noted earlier. So far as that submission depends upon the need for a direction in the precise terms proposed by his Honour, I would reject it, since for the reasons earlier given, I am of the opinion that it overstates the law, and that Jones does not constitute authority for it.
255 Although not fatal to the direction, as Spigelman CJ noted in ARD 2000 NSWCCA 443 (at para 3), Barwick CJ and Owen and Walsh JJ made reference, in Lucas v The Queen (1970) 120 CLR 171, to the general undesirability of complicating a summing up by reference to extraneous considerations, such as the consequence of a particular verdict, unless legislation so requires (as it now does in cases involving special hearings for those found unfit to be tried, and in cases where an issue of mental illness arises - Mental Health (Criminal Proceedings) Act 1990 sections 21 and 37) The point at issue for this appeal concerns not this point, but rather, whether the RAT direction, or some variation of it, should have been given by the trial judge.
256 Caution needs to be exercised in giving any direction of that kind, lest the jury see it as an encouragement to a process of reasoning in the obverse way previously mentioned. For them to assume that a tendency or propensity to similar behaviour has been established by proof of some counts, which might then make it more likely that the accused offended similarly in relation to the remaining counts, would involve a prohibited line of reasoning.
257 On the other hand, there is merit, as a matter of common sense, in reminding the jury that the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts.
258 An additional consideration arises so far as the giving of a direction of this kind may alleviate the concern which might otherwise subsequently arise, where differing verdicts are returned in relation to a multi count indictment. In such a case, the Court may feel greater confidence than the jury has focussed closely upon the issues of reliability and credibility of the evidence going to each charge, and has found good cause for differentiating between the individual counts.
259 In Robinson (2000) 111 A Crim R 388, Fitzgerald JA said in relation to such a direction, (at para 9):
"The circumstances might be such that the jury should also be instructed that if they hold a reasonable doubt concerning the reliability of a complainant's evidence on one or more counts, whether by reference to the complainant's demeanour or for any other reason, they must take that into account in assessing the reliability of his or her evidence in relation to other counts."
260 I have two reservations in relation to this direction: first, that it appears to be dependent upon the jury having a reasonable doubt concerning the reliability of the complainant's evidence, on any one or more of the counts; and secondly, that if given, it is to be phrased in mandatory terms.
261 I see no reason to confine the direction to reliability. It is equally, if not more, applicable in relation to credibility or truthfulness. Moreover, I see no reason to do more than bring to the attention of the jury the circumstance that, depending upon the nature of, and the degree of, any question which arises in relation to the evidence going to the count in respect of which they have a reasonable doubt, it is both permissible and proper for them to take that into account when considering the evidence of the complainant or central witness upon the remaining counts.
262 This should, however, be kept in context, in that the jury should be reminded that it is but one of the circumstances that they can properly take into account, when evaluating the overall credibility and reliability of the complainant, as it impacts upon the remaining counts, including any other fact or circumstance which may provide an explanation for any question which may arise. It is, in my view, inappropriate for any direction, or comment, in this regard to become elevated, by reason of the mandatory terms in which it is expressed, to a principle of law or to operate as a straight jacket for the jury.
263 In some cases, where it is obvious that the witness's reliability or credibility has been seriously undermined, in relation to one count, a strong comment may be appropriate. In other cases, it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness's evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to the other counts. In other cases a more neutral reminder of the entitlement of the jury to take such matter into account may suffice. In yet other cases, it may not be necessary to say anything.
264 In this regard, I similarly share the concern expressed by McHugh J in KRM v The Queen (2000) 75 ALJR 550, and by Spigelman CJ in this appeal, as to the danger of adding ever more directions and warnings to the repertoire of a trial Judge. It is not to be forgotten that the purpose of a summing up is not to deliver an impeccable and exhaustive lecture on the law, or even upon all matters that might conceivably impact on the fact finding process. Nor is it to state the obvious. Rather, it is to explain the relevant law in the light of the issues which arise, and to give the jury such assistance as they need in determining those issues upon the facts relevant to them.
265 Where it is necessary that a direction of the kind discussed be given to ensure a balance of fairness, then it should be phrased in terms that meet the needs of the case, and with the reminder that the assessment of reliability and credibility remains entirely a matter for the jury. Whatever is said, however, it is critical to ensure that it is not so worded as to encourage or invite the obverse form of reasoning which derives from tendency or propensity.
266 In my view, the somewhat brief direction given in this case insufficiently brought these matters to attention. Once his Honour opened up this subject, it was necessary for him to give a sufficient direction drawing to attention the considerations mentioned.
267 When taken in conjunction with the absence of a Crofts direction, I have reached the conclusion, although not without some hesitation, that the appellant lost the opportunity for a fair trial
268 I would accordingly allow the appeal, and order a new trial.