Svajcer v R [2010] VSCA 116

1 I have had the advantage of reading Redlich JA's judgment in draft form. For the reasons given by him, I agree that the application for leave to appeal against conviction should be refused.

2 Following a trial in the County Court, the applicant was convicted on three counts of committing an indecent act with a child under 16 and five counts of sexual penetration of a child under 16. He was acquitted of one count of rape. Each count on the presentment concerned the same complainant. He was sentenced to a total effective sentence of five years and nine months' imprisonment. A non-parole period of three years was fixed. He now seeks leave to appeal against his conviction on those counts.

**3 The applicant met the complainant in May 2004 after he commenced boarding at a Cranbourne property which was the home of the complainant, who was then aged 15 and her mother. The applicant, who was then aged 33, was suffering from a serious back injury and moved in shortly after an operation relating to that condition. The complainant's mother was a psychiatric nurse who worked regular night shifts and was often away from the house. A friendship developed between the applicant and the complainant and the pair would spend time together in the house, engaging in activities such as watching movies, cooking and sharing meals.

4 According to the complainant, the applicant commenced a sexual relationship with her in September of 2004, in the fortnight before her 16th birthday. Each count was alleged to have occurred over four separate occasions during that fortnight and to have taken place within the Cranbourne home. The sexual relationship continued until June 2006, but the complainant, having reached the age of consent on her**

**16th birthday, the relationship was from then on legally consensual save for the complainant's allegation of rape the subject of count 9.

5 The defence of the applicant at trial was that the sexual relationship with the complainant did not commence until after he and the complainant left the complainant's home at Cranbourne and moved into a Hampton Park property together in March of 2006.

6 The circumstances giving rise to the individual offences were as follows. The offence the subject of count 1, (indecent act with a child under 16 years) occurred on 7 September 2004 when the complainant and the applicant were watching television in the applicant's bedroom. The complainant fell asleep and awoke to find the applicant kissing her on the mouth with his tongue. The applicant's conduct escalated to sexual penetration on 13 September when, after kissing and touching the complainant upon her stomach, breasts and vagina, the applicant committed an act of digital and then penile penetration upon the complainant (counts 2-4). Later, on 15 September 2004 the applicant again kissed and touched the complainant on her breasts, before committing a further act of digital and penile penetration (counts 5-7). Finally, on 17 September, a date two days before the complainant's birthday, the applicant again engaged in an act of penile penetration with the complainant.

7 At the trial the complainant said that she wanted to tell her best friend about having sex with the applicant and losing her virginity, but that he made her promise not to tell anyone about it until she turned 18. He told her that people would not understand because it was illegal and she agreed not to tell anyone.

8 The alleged rape was said to have occurred at the beginning of 2005, after a BBQ. The complainant testified that she had not consented to intercourse on that occasion. The applicant was acquitted of that count.

9 The applicant continued to maintain a sexual relationship with the complainant. In March 2006, the applicant and complainant moved into a house as boarders with friends in Hampton Park. Their sexual relationship ended on 26 June 2006 following a heated argument. The complainant took her allegations to the police shortly after this date.**

**10 Under cover of ground 1 the applicant contends that the learned trial judge erred by failing to give a direction in accordance with s 61(1)(b)(ii) of the Crimes Act 1958, to the effect that the jury could take into account the complainant's delay in complaint when assessing her credibility in respect of counts 1-8.

11 Section 61(1) relevantly provides:**

(1) On the trial of a person for an offence under Subdivision (8A), (8C), (8D) or (8E) or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence ...

(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge -

(i) must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it; and

(ii) must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning...

**12 The trial judge, in compliance with that section, directed the jury as to the relevance of delay in the making of complaint on the count of rape. The applicant now complains that the trial judge did not give such a direction on any of the other counts and confined the instruction to the rape count. The Crown maintained that, properly understood, his Honour's comments were addressed towards each of the counts. The Crown's submission must be rejected. It is evident from the trial transcript that 'the application' made by the applicant's counsel at trial was concerned with the delay between the date of the alleged rape and the complaint to the police. The judge then directed the jury in terms which were addressed solely to that count. I accept the Crown's further submission that his Honour did not err by restricting this direction to the rape count.

13 Section 61 was enacted as part of a series of legislative reforms intended to alter the nature of the instructions to be given by trial judges in respect of complainants in cases involving sexual offences. For example, s 60(1)(a) prohibits a trial judge from warning, or making any suggestion to the jury, that the law regards complainants in sexual cases as an 'unreliable class' of witness.

14 Section 60(1)(b)(i) provides that where delay in complaint is in issue, the trial judge must inform the jury that 'there may be good reasons' why a complainant may delay in making such a complaint. Section 60(1)(b)(ii), has a different focus. In certain prescribed circumstances, it preserves the obligation of the trial judge to warn the jury that delay in making complaint may be relevant in assessing the credit of the complainant. The Act is concerned with the circumstance where evidence has been given or a suggestion made during the trial that there was delay in making complaint as to an offence. The trial judge is not permitted to give such a warning unless an application is made on behalf of the accused that a warning be given and the judge is then is satisfied that the complainant's credibility is sufficiently affected by the delay so as to justify giving such a warning.

15 In this trial, these conditions were not satisfied. The application by counsel for the applicant was plainly made in terms which addressed only the offence of rape. Acceding to this application, the trial judge duly gave the requested direction in respect of the rape count. It was not suggested by counsel for the accused at trial that any such direction should be given with respect to the other counts. In the absence of an 'application of the accused' in respect of counts 1-8, the judge's discretion to give a direction in respect of those counts was not enlivened.

16 Even if application had been made, a direction would not have been appropriate with respect to counts 1-8. It should only be given where, on the terms of the legislation, 'there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning'.

17 It was not in issue at trial that there was a substantial period of delay between the date of the offences in September 2004 and the ultimate date of the complaint in June 2006. But the mere fact of a lapse of time between the alleged offence and the making of a complaint will not necessarily be such as to permit reasoning that the complainant's credit is affected.[1] It is necessary for the trial judge to consider how the period of time between the relevant offence and the making of the complaint, might affect the jury's assessment of the credibility of the complainant. The lapse of time will become relevant to an assessment of the complainant's credit where it may be viewed as inconsistent with aspects of the complainant's account.

18 In the present case the learned trial judge, in instructing the jury, drew attention to the fact that more than a year elapsed between the alleged act of rape and the eventual complaint. According to the complainant, the act was a non-consensual and violent occasion of intercourse. The defence had submitted in closing that in such a circumstance one would expect little delay in making complaint. It was further submitted that the complainant's conduct in continuing a sexual relationship with the applicant and moving into a property with him, was also inconsistent with her allegation of rape. The jury was rightly directed that they might take this delay into account in assessing the complainant's credit on that count.

19 The circumstances in respect of counts 1-8 were of a different kind as the lapse of time before making the complaint as to these offences, did not adversely affect the credit of the complainant. The delay was not inconsistent with the complainant's testimony. Her account was that the sexual relationship commenced prior to her reaching the age of majority, and that it then continued as a consensual sexual relationship until a period just prior to the making of the complaint in June 2006. She testified that she never told anyone about the offence because the applicant had asked her not to tell anyone until she was 18. As she was, on her account, in a continuing consensual relationship, the complainant had no cause to complain. In short, it was consistent with the complainant's account that she would not complain about the applicant's conduct. That was how the matter was perceived by the trial judge. It was for that reason that counsel had not sought any such direction.

20 Before leaving this ground I should refer to the terms in which the trial judge, in purported compliance with the obligation under ss 61(1)(b)(i) sought to inform the jury 'that there might be good reasons' why the complainant may have delayed in the making of the complaint of rape. His Honour said:**

In this case the complainant, Ms [C], has given the reason for the delay in complainant as the fact that the accused told her not to tell anybody about what was happening until she was aged 18. Again, that explanation comes from her own mouth. So, if you find that the complainant's delay in making a complaint is inconsistent with the evidence she gave, this may cast doubt in on her credibility.

21 This instruction was unduly favourable to the applicant in a number of material respects. First, the complainant had not given as the explanation for the delay in respect of the rape count that she was not to tell anybody about what was happening until she was 18. That explanation was quite specific to the earlier offences the subject of counts 1-8. Secondly, even if that had been an explanation advanced, there was another obvious explanation which the jury would have had to consider. Recently in R v ERJ I said:

The reasons to which the trial judge should refer are not to be confined to any explanation that the complainant may advance for any delay ...

There are many reasons why a complainant might delay in the making of a complaint, or may be slow to recognise the wrongfulness of the conduct against them.

In cases involving sexual offences, victims may delay in making a complaint about the abuse. The offender will often be a trusted family figure or one upon whom the victim is emotionally dependent. Even where the victim has had some other sexual experience, they may view their relationship with the offender as special. Commonly the victim will have no reference standards with which to judge their experiences apart from those supplied by the offender. Hence the complaint may be delayed for reasons which may include a conviction that there is nothing wrong with or abnormal about the acts. There may be other reasons for delay. The victim may be sworn to secrecy. There may be compulsion to secrecy by threats. There may be imposed or misplaced feelings of responsibility for the acts. The victim may fear family dissolution or punishment of the wrongdoer. There may be misplaced guilt or self blame. And the victim may employ various strategies to cope with the abuse such as repression of the acts so that conscious knowledge of them is concealed, suppression of the acts to avoid conscious recall of the events or even psychological disassociation from the acts. Any of these factors may contribute to delay in making complaint or a delayed conscious recognition that the conduct was wrongful. These are not necessarily explanations that the complainant will articulate in evidence. But the trial judge, in conformity with the statutory obligation should at least draw attention to some of those explanations which in the circumstances of the particular case may be relevant.[2]

**22 Few of these enumerated reasons were relevant to the present circumstances. But the trial judge should have referred to the most obvious reason which was relevant. That was the dynamic of the ongoing relationship between the applicant and complainant and the fact that a victim may not always complain about an offence where a relationship with the offender continues after the offence was committed.

23 Third, by emphasising that the explanation of the complainant 'comes from her own mouth', the learned trial judge improperly diminished the weight of that evidence. Used in this context, it created the risk that in the absence of corroborative evidence, the jury might give less weight to the complainant's explanation and her testimony generally. His Honour's observation was inconsistent with the purpose of s 61. As the majority of the High Court in Crofts v R[3] observed:**

The purpose of such provisions, stated generally, is to alter the rule of practice or of law which previously existed, under which judicial warnings were required in the trial of sexual offences as to the danger of convicting the accused in the absence of corroboration of the testimony of the complainant and where there was delay in the making of a complaint.[4]

24 During the appeal the Crown drew attention to other observations of the same nature made by the trial judge in relation to other issues. Some of those remarks also offended the purpose of the recent amendments to the Act. That said, it was entirely within the trial judge's province to otherwise comment upon such aspects of the prosecution case as he considered unsatisfactory so long as it was made clear to the jury that they were the judge's comments.

The learned Prosecutor on behalf of the Crown acted improperly in refusing to call the witness Shay Maree Harris as named on the presentment which resulted in causing undue prejudice in the conduct of the applicant's defence, and resulted in a substantial miscarriage of justice.

**26 Harris was named on the presentment as a witness to be called by the prosecution to give evidence in the proceedings. She had been called by the prosecution and gave evidence before the Magistrates' Court at the committal proceedings. Harris had given evidence at two previous trials[5] that had not gone to verdict.

27 The applicant relies upon three matters arising out of Harris's evidence. She testified that the complainant had (inconsistently with the complainant's allegations against the applicant) told her that she was still a virgin. Second, she testified that the complainant had said to her prior to separating from the applicant in June 2006 'Oh my God, I'm going to have money now.'[6] This was said to be evidence of a motive by the complainant to make false allegations against the applicant. Thirdly she gave evidence about the applicant's back disability. This evidence was said to bear upon his capacity to have sex as the complainant had alleged.

28 The High Court in R v Apostilides[7] has set out the relevant principles concerning the prosecutor's obligation to call a material witness:**

(1) The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.

(2) The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.

(3) Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.

(4) When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.

(5) Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.

(6) A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

**29 During the trial the learned prosecutor indicated that he was not willing to call Harris. His Honour, with justification, queried the prosecutor's decision. Although the discretion to call a witness resides solely in the prosecutor, in some circumstances it is appropriate for a judge to question a prosecutor's decision not to call a material witness and suggest that the prosecutor should reconsider their decision.[8] It was pointed out that the anticipated evidence appeared to be both relevant and admissible on the issue of the complainant's motive. The prosecutor asserted that he did not need to call the witness, as he had formed the view that the complainant would not dispute that she may have lied to Harris and told her that she was a virgin. The prosecutor also relied on the fact that Harris would give evidence that the complainant's motive was to obtain money from the applicant, when that motive was not supported by any other evidence. He regarded the witness as unreliable. At the conclusion of this exchange the judge repeated his view that the appropriate course of action would be for the Crown to call the witness.

30 After the close of the prosecution case, counsel for the applicant called Harris as a witness for the defence. The prosecutor then sought leave to cross-examine the witness. At this point the learned trial judge read to the prosecutor, excerpts from 'The Victorian Bar Rules on the Duties of The Prosecutor' but the prosecutor could not be dissuaded from his course. He persisted with his intention to cross-examine the witness and proceeded to do so.

31 In written submissions, and upon the hearing of the appeal, it was conceded by the Crown that the prosecutor did not have a legitimate basis to refuse to call the witness. In Apostilides the Court observed:**

A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an indicted person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.[9]

**32 The concerns raised by the prosecutor in respect of the reliability of the witness fell well short of the level of unreliability postulated in Apostilides. Further, it was wrong for the prosecutor to refuse to call the witness on the basis that her evidence was uncorroborated and denied by the complainant. The evidence was relevant and ought properly have been led as part of the unfolding of the circumstances of the offending conduct.

33 On appeal, the Crown submitted that despite the wrongful refusal by the prosecution to call the witness, it was not productive of a miscarriage of justice. The applicant submitted that he was unfairly prejudiced by the failure by the Crown to call the witness. First, it was submitted that the jury might have inferred that the witness was 'against the Crown' or 'tainted with or by the accused', such that her credit may have been adversely affected. Second, that the prosecutor may have gained an unfair advantage by being able to cross-examine the witness. Consideration of the evidence that was given by Harris does not bear out these contentions . This was not a case where, having regard to the nature of the issues and the disposition of the witness, the asking of non-leading or leading questions could have affected the substance of the evidence given by the witness[10]. The complainant did not dispute that she had lied to Ms Harris in telling her that she was still a virgin. The complainant maintained the explanation that the applicant had told her not to tell anyone they had sex until she turned 18. While admitting that she was aware that the applicant was to receive an accident compensation payment, the complainant denied saying anything about having money. At trial the defence suggested that this disclosed a motive on the complainant's part to make false allegations against the applicant.

34 There were a number of difficulties with this hypothesis that were identified in the course of oral argument on the appeal. Counsel for the applicant accepted that the words attributed to the complainant were capable of bearing the innocent explanation that the complainant now regarded herself as free of any constraint by the applicant as to how she spent her money. There was no evidence that suggested that the complainant had thereafter sought to obtain money from the applicant. The complainant gave a quite detailed description of the applicant's back disability consistent with the applicant's own description of his disability which he had given in his record of interview. Significantly, although the applicant called his general practitioner to give evidence about other matters, he did not seek to lead any evidence from his treating doctor about this matter. The submission that there was any material difference between the applicant's disability, as described by Harris and the complainant, could not be sustained. Having regard to the nature of the evidence given by Harris and the complainant, the applicant was not prejudiced in any way by having to call Harris as a defence witness. There was no substantial miscarriage of justice occasioned by the prosecutor's failure to comply with his duty to call Harris.**

**35 The applicant's submission under this ground raises the question of whether the verdict was 'unreasonable and cannot be supported by the evidence'[11] or that 'the nature and quality of the evidence was so inherently suspect and devoid of probative value',[12] such that it could be concluded that the jury should have experienced a reasonable doubt.

36 The applicant relied upon the absence of any corroboration of the complainant's allegations and his full denials in his interview with the police. He also relied upon the absence of timely complaint and the evidence of Harris as to the complainant's motive. These matters fall away given the conclusions reached on grounds 1 and 3.

37 The applicant further emphasised a number of prior inconsistent statements that bore upon the credibility of the complainant. Each were relied upon heavily at the trial and were referred to clearly by the learned trial judge in his charge to the jury on more than one occasion. The first was the evidence that the complainant told her doctor, Dr Eastaugh, on two separate occasions (in September 2004 and again in January 2005) that she was not in a sexual relationship with the applicant. There second was evidence of Harris who said that in early March 2006 the complainant told her that she was a virgin. Next were the reasons given by the complainant to Dr Eastaugh as to why she moved out of home and moved elsewhere with the applicant. It was Dr Eastaugh's evidence that the complainant told him that she moved out of home because of conflict with her mother. He further said that on six to 12 occasions over 18 months she had told him and other members of his practice that she was having conflict with her mother. In her evidence the complainant explained these matters on the basis that the applicant told her not to tell anyone of their relationship. Lastly, when the complainant first made the allegation of rape against the applicant, she said that it occurred on a weekend when the V8 Supercars were racing at Phillip Island. In her evidence, the complainant changed her account after she was informed that there was no such race at Phillip Island either in late 2004 or in the first half of 2005. The complainant explained this error on the basis that 'I was mixed up'.

38 It was further submitted that the verdicts were unsafe, as the acquittal on the count of rape was inconsistent with the convictions on counts 1-8. This is the third occasion in recent months that a claim that the verdicts on different counts were inconsistent, has been raised under a ground that the verdicts were unsafe and unsatisfactory.[13] In MG v R this Court said:**

Where the real complaint is that the verdict is inconsistent with an acquittal on another count, it should be the subject of a discrete ground. If a claim of inconsistent verdicts cannot be sustained, the verdict of acquittal will not ordinarily advance the argument that the guilty verdict was unsafe or unsatisfactory.[14]

**39 No objection having been taken, the court permitted the submission but it should not be thought that it will in future permit questions of inconsistency in verdicts be raised in this manner.

40 It was said that the verdict on the rape count compelled the conclusion that the jury did not regard the complainant as a reliable witness. As the prosecution relied entirely upon the veracity of the complainant's evidence on the remaining counts, the verdicts were said to be irreconcilable and were therefore unsafe.

41 Where an accused is charged with multiple offences, differences between the verdicts may not involve inconsistencies even of a factual kind. The significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case[15]. The ultimate question concerns the reasonableness of the jury's decision. Here the jury was directed to give separate consideration to each count. It was accompanied by a specific instruction that the evidence of the complainant could be accepted in whole or in part. Logic and reasonableness did not necessarily dictate a common approach to the several verdicts concerned[16]. And as the joint reasons of McHugh, Gummow and Kirby JJ in MFA[17] state, juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion.[18]

42 It was conceded by counsel for the applicant, very early in argument, that the rape count could be distinguished from the earlier counts. There is in my view a logical and reasonable basis for sustaining the differentiation that the jury drew between the counts The complainant's evidence as to when the rape occurred was attended by uncertainty. The complainant on her account continued in a sexual relationship and did not complain about the alleged rape until much later. The Crown also submitted that in the context of a consensual sexual relationship, the complainant had initially agreed to have sex on the occasion of the alleged rape and the verdict is explicable on the basis that the jury may have entertained a reasonable doubt as to whether the applicant had the requisite mens rea. These considerations, may have been material to the jury's deliberation on that count.

43 The weight to be attached to the criticisms of the complainant's credibility must be assessed in the light of the applicant's admission that he had a sexual relationship with the complainant after they left the complainant's home and moved into rented accommodation. The Crown also relied upon other evidence which it submitted was supportive of the complainant's account. It was not contested that**

prior to leaving her mother's home, the complainant and the applicant spent lengthy periods alone in the house while the complainant's mother was at work. Dr Eastaugh gave evidence that he prescribed the oral contraceptive pill for the complainant on 24th September 2004, shortly after the complainant's 16th birthday. On that occasion the applicant accompanied the complainant to Dr Eastaugh's surgery. The doctor also testified that she attended his surgery on 5th January stating that she had engaged in unprotected sex and asked for a pregnancy test. The Crown also referred to the evidence before the jury that the applicant 'self medicated' by taking marijuana and alcohol and was not disabled by his back condition from having sexual intercourse.

**44 Upon consideration of the whole of the evidence I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The nature and quality of the evidence was not so inherently suspect and devoid of probative value that it could be concluded that the jury should have experienced a reasonable doubt. The judge's charge emphasised all of the inconsistencies in the complainant's account and the other means by which the complainant's credit was attacked. These issues were quintessentially jury questions. None of the matters raised at trial, and highlighted on this appeal persuade me that the verdicts are unreasonable and cannot be supported by the evidence. Accordingly, this ground is not made out.

45 The application for leave to appeal against conviction should therefore be refused.

[1]. R v ERJ [2010] VSCA 61, [49].

[2] [2010] VSCA 61, [49]-[51].

[3] [1996] HCA 22; (1996) 186 CLR 427.

[5] There had been three previous trials. On the first two trials the jury was discharged without verdict while on the third, the applicant was acquitted on three counts and the jury was otherwise unable to agree.

[6] In cross-examination it had been suggested to the complainant that she had also said 'I can buy whatever I want.'

[7] [1984] HCA 38; (1989) 154 CLR 563.

[8] R v Jensen [2009] VSCA 266, [61] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

[9] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 576 referred to in R v Jensen [2009] VSCA 266, [60].

[10] R v Lam (Ruling No 6) [2005] VSC 280, [6] (Redlich J).

**[11] R v CHS [2006] VSCA 19; (2006) 159 A Crim R 560, [122] (Eames JA); R v VN [2006] VSCA 111; (2006) 15 VR 113, [135] (Redlich JA).

[12] R v Arundell [1998] VSCA 102; [1999] 2 VR 228, [27] (Charles JA), R v VN [2006] VSCA 111; (2006) 15 VR 113, [135] (Redlich JA).**

[13] R v ERJ [2010] VSCA 61, [53]; MG v R [2010] VSCA 97, [59].

[14] MG v R [2010] VSCA 97, [59].

[15] R v ERJ [2010] VSCA 61, [55]-[56].

[17] [2002] HCA 53; (2002) 213 CLR 606.