Christophers v The Queen
[2000] WASCA 308
•20 OCTOBER 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: CHRISTOPHERS -v- THE QUEEN [2000] WASCA 308
CORAM: PIDGEON J
IPP J
OWEN J
HEARD: 3 OCTOBER 2000
DELIVERED : 20 OCTOBER 2000
FILE NO/S: CCA 62 of 1999
BETWEEN: RAYMOND FRANCIS CHRISTOPHERS
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against convictions - Charges of indecent dealing - Offences alleged to have occurred 23 years ago - Evidence of complainant uncorroborated - Longman warning - Whether trial judge needs to refer jury expressly to inconsistencies in evidence of complainant - Whether need to address jury as to issue of repressed memories
Legislation:
Nil
Result:
Appeal allowed
Re-trial ordered
Representation:
Counsel:
Applicant: Mr R D Young
Respondent: Mr D Dempster
Solicitors:
Applicant: Gunning
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gaulard v The Queen [2000] WASCA 218
Hyatt v The Queen (1998) 101 A Crim R 83
James v The Queen [2000] WASCA 100
King v The Queen (1986) 161 CLR 423
Longman v The Queen (1989) 168 CLR 79
R v Henry (1968) 53 Cr App R 150
R v Jenkyns (1993) 32 NSWLR 712
R v Lines (1884) 1 Car & K 393
R v McFelin [1985] 2 NZLR 750
R v Pinder (1992) 8 WAR 19
Case(s) also cited:
Bromley v The Queen (1986) 161 CLR 315
Gill v The Queen [1999] WASCA 68
M v The Queen, unreported; CCA SCt of WA; Library No 980452; 12 August 1998
Palmer v The Queen (1998) 193 CLR 1
T v The Queen [2000] WASCA 153
Welsh v The Queen, unreported; CCA SCt of WA; Library No 980489; 1 September 1998
PIDGEON J: I have read the reasons of Owen J. I agree with those reasons and the orders proposed.
IPP J: I have read the reasons of Owen J. I agree with those reasons and the orders proposed.
OWEN J: Following a trial in the District Court the applicant was convicted by a jury of eight counts of indecent dealing and one count of unlawful carnal knowledge of a girl under the age of 13 years. He was sentenced to imprisonment for 6 years. This is an application for leave to appeal against conviction.
Background
In 1976 the complainant was 10 years of age and the applicant was about 40 years old. The complainant lived with her family (including her mother and a younger sister) in suburban Adelaide. They were not related to the applicant but knew him through mutual friends. At some time in 1976 the applicant decided to return to live in Perth. He arranged for two other adults to accompany him to share the costs and the driving of the vehicle in which they were to travel. There was a spare seat in the vehicle and the applicant suggested to the complainant's mother that one of her three daughters may like to accompany him by way of a holiday. It was arranged that the complainant would take the trip.
The applicant, the two accompanying adults and the complainant set off on the journey. They drove from Adelaide to Perth spending two nights at motels along the way. When they arrived in Perth they stayed for one or two nights with the applicant's brother and then (with the applicant's brother's family) drove to Broome for a holiday. They then drove back to Perth. About a day or so after they arrived back in Perth the applicant arranged an airline flight for the complainant so she could return to Adelaide.
The Crown case was that on each of the nights at motels, again on the night when they stayed at the brother's home in Perth and again during the visit to Broome, the applicant engaged in sexual acts with the complainant. There was evidence from the complainant's younger sister that when the complainant returned to Adelaide she had been distressed and had told the sister that the applicant had sexually assaulted her. The applicant conceded that he had taken the complainant with him on the trip but denied that there had been any sexual contact whatsoever.
The complainant had no further contact with the applicant, although it seems that he visited her house on a couple of occasions in the months following her return to Adelaide from Perth. In 1996 the complainant made a statement to police in South Australia about the incidents. In 1997 she made a complaint to police in Western Australia and on 26 July 1997 she made a written statement detailing the incidents. It was as a result of the second complaint that the applicant was charged.
After the complainant made the statement to Western Australian police in July 1997 she commenced counselling or therapy sessions, a result of which was that some of the things she had "blocked out" of her memory came back to her. Some reference was made in the evidence to the complainant having been placed under hypnosis during these sessions. This evidence raised the question of repressed or recovered memories. The significance of this aspect of the case will become apparent shortly.
The Indictment and the Crown Opening
The indictment contains ten counts which arise from five separate incidents or events. The first incident covers counts 1 and 2, which are charges of unlawful and indecent dealing with a girl under the age of 13 years contrary to s 189(2) of the Criminal Code (as it stood in 1976). This incident is said to have taken place at the first motel at which they stopped on the trip across the Nullabor Plain. The Crown opened on the basis that the motel was in Western Australia, as it would have to be to sustain the charge. The complainant's evidence was to that effect but the applicant said that the first night was spent in Kimba, which is still in South Australia. The Crown opened on the basis that, in the motel room, the applicant forced the complainant to masturbate him and then to perform oral sex on him. This was the subject of count 1. At trial the complainant testified only to the act of masturbation and not to oral sex. It was alleged, and this is the subject of count 2, that he then simulated sexual intercourse without actually penetrating her.
The second incident is said by the complainant to have taken place at a motel with ocean views, possibly in Fremantle but in any event much closer to Perth. The applicant testified that the second night was spent in Caiguna which, while in Western Australia, is nowhere near the sea and is a long way from Fremantle. Count 3 alleges unlawful carnal knowledge of a girl under the age of 13 years contrary to s 185. The Crown opening (and the complainant's testimony) was that the applicant's penis entered her vaginal area. Count 4 was expressed as an alternative, namely a charge of unlawful and indecent dealing, in case the jury was not satisfied that there was penetration.
The third incident is alleged to have occurred at the applicant's brother's home in Perth before they left to travel to Broome. It covers counts 5 and 6, each of which is a charge of unlawful and indecent dealing with a girl under 13 years of age contrary to s 189(2). The complainant said she had been forced to masturbate the applicant and then to perform oral sex. The applicant had then simulated sexual intercourse without penetration.
The fourth incident was said to have taken place in a motor vehicle at Broome. In relation to count 7, the Crown opened on the basis that there had been acts of masturbation followed by oral sex. However, when she came to give evidence the complainant did not assert those acts. Rather, she said that it was another act of simulated sexual intercourse.
The final incident is alleged to have occurred in Broome at a house at which they were staying. This is the subject of counts 8, 9 and 10, each of which alleges unlawful and indecent dealing with a girl under 13 years contrary to s 189(2). The complainant's evidence was that the applicant caused her to masturbate him (count 8), then perform oral sex on him (count 9), followed by an act of simulated sexual intercourse (count 10).
The jury returned verdicts of guilty on each count, other than count 4. As count 4 was an alternative charge to that alleged in count 3 (unlawful carnal knowledge) the jury had no need to consider it.
The Trial Judge's Direction and the Grounds of Appeal
In his address to the jury the trial Judge gave what is commonly referred to as a "Longman direction", following the comments of the various members of the Bench in Longman v The Queen (1989) 168 CLR 79. The sole challenge to the convictions is whether his Honour went far enough in his warnings to the jury in that respect. Because it is fundamental to the appeal, and despite its length, I will set out in full the relevant portion of the trial Judge's summing up:
"Ladies and gentlemen, you will appreciate that [the complainant's] evidence in this case is of critical importance, and [the Crown Prosecutor] has made no bones about that. When you come to consider her evidence you should bear in mind that these alleged offences occurred about 23 years ago. In assessing the truthfulness and reliability or accuracy of the evidence of [the complainant] you should bear in mind that the longer the delay between the happening of the alleged offences and the report of the matter to authorities, the greater the possibility of error in the recollection of the incident giving rise to the alleged offence or offences.
In telling you this I am simply telling you what you already know from your own experience, namely that the passage of time makes it more difficult to accurately recall a particular incident. In other words, the passage of time increases the possibility of factual errors being made when describing an incident which occurred some considerable time in the past. We all know that our recollections can be fallible and that there are the effects of imagination or prejudice or outside suggestion upon our capacity to remember particularly things that occurred when we were much younger and when we were children.
As I have already said to you [the complainant's] evidence is critical to the Crown case and in relation to the incidents complained of by her there's no independent evidence. By independent evidence I mean evidence which goes to confirm in some material particular that the offences in question have been committed and that the accused person committed them. Apart from [the complainant's] evidence there's no other independent evidence which implicates the accused in these offences. The only evidence is that, as I said, of [the complainant].
Of course, members of the jury, in cases such as this where sexual misconduct is alleged the conduct usually takes place in private. As a result it's often difficult for the complainant to produce independent evidence to support the allegation the offence was committed and, on the other hand, also it's difficult for the accused to produce independent evidence to refute the allegation. You should also appreciate, ladies and gentlemen, that the longer the delay between the alleged incident giving rise to the alleged offence and the complaint to authorities being made about it by [the complainant], the more difficult it is for the evidence relating to the particular incident to be tested.
The long delay coupled with a lack of preciseness as to the date upon which each offence is alleged to have occurred makes it difficult for an accused to examine in detail the circumstances of the alleged offence. In other words, in a sense the long delay puts an accused person at a disadvantage. For example, had a report been made to authorities about his behaviour within a short time of the alleged offences occurring, then the accused may have been able to answer the charges by adducing evidence as to what he was doing on those days, for example.
So as I have said, ladies and gentlemen, having said all of that, again, it's clear in the case the Crown relies heavily on the evidence of … the complainant. Now, you may act on her evidence alone if, after considering it and weighing it up with great care and exercising considerable caution, you are satisfied beyond reasonable doubt that her evidence was truthful and that it was accurate."
The trial Judge then proceeded to remind the jury of the main features of the Crown case by describing the evidence on each of the five incidents and relating them to the various counts in the indictment. In relation to count 1 his Honour said:
"Count 1 was an allegation of, according to the prosecutor's opening, masturbation and then fellatio, which is oral sex. However, the complainant's evidence was simply an allegation of masturbation. Either way, her evidence of masturbation could, theoretically, support a conviction if you accepted its truth, fullness and accuracy, so that discrepancy between what [the Crown Prosecutor] said to you the evidence would be and what the witness in fact said is perhaps not of any great significance, although she simply spoke about an act of masturbation."
When he was outlining the evidence on the fourth incident (count 7) the trial Judge said this to the jury:
"The Crown prosecutor told you that the evidence in relation to this matter would relate to masturbation and fellatio. The complainant's evidence was not to that effect. She said it was an act of simulated intercourse. Either way, it's still capable of being categorised, if you found it to have occurred beyond reasonable doubt, as an unlawful and indecent dealing."
His Honour then turned his attention to the defence case. Having made some comments about the general nature of the defence, he made some remarks about the submissions made concerning the reliability of the complainant as a witness:
"The defence case is that the complainant's evidence has features which should cause you to be concerned about acting upon it alone. According to the defence, not only is the complainant unreliable, in other words inaccurate about some matters, but she is fabricating her evidence, in other words telling lies about the accused person, and the defence points to the complainant having given evidence which was inconsistent with her statement in some respects, and the defence says that those inconsistencies do also show that the evidence is unreliable, that they weren't minor inconsistencies, they were significant inconsistencies."
So far as I have been able to ascertain, these are the only references made by the trial Judge to matters which had been raised by the defence relating to what it saw as inconsistencies in the complainant's evidence. His Honour did not make any reference to repressed or recovered memories or to hypnosis
During the hearing of the appeal the applicant was granted leave to amend the grounds of appeal and, as finally argued, they are as follows:
"1.In directing the jury to consider and weigh up the complainant's evidence with considerable care and caution, the learned trial Judge erred in failing to identify the factors which may have affected the complainant's ability to give accurate, reliable and truthful evidence.
PARTICULARS
(a)The existence of material inconsistencies in the evidence of the complainant;
(b)The complainant's evidence that she had recovered memories under hypnosis;
(c)The complainant's antipathy towards the appellant.
2.The learned trial Judge erred in that, when directing the jury as to the need to exercise care and caution in assessing the complainant's evidence, the terms of that direction were qualified in such a way as to diminish the significance of the warning.
PARTICULARS
(a)The learned trial Judge directed the jury that in cases alleging sexual misconduct the conduct usually takes place in private;
(b)The complainant, as well as the defendant, was disadvantaged by reason of being unable to produce independent evidence."
Immediately after the jury had retired, counsel who then appeared for the applicant raised with the trial Judge the adequacy of the Longman warning and invited his Honour to re-direct on the basis that it would be "dangerous to convict a person on … uncorroborated testimony". The trial Judge declined to re‑direct. At the hearing of the appeal, counsel for the applicant conceded, I think correctly, that there was no warrant for the use of the word "dangerous". In other words, there is nothing inherently wrong with the way in which the trial Judge summarised the position in the last paragraph of the passage that I have already set out. Rather, the focus of attention must be on the failure to direct the attention of the jury to particular aspects of the evidence in the way described in the amended grounds of appeal.
The Alleged Inconsistencies - the Evidence
During the course of the evidence, and in closing submissions, the defence case raised issues relating to inconsistencies in the complainant's testimony.
I have already mentioned the problem in relation to count 1. The Crown opened on the basis of acts of masturbation and forced fellatio. In her evidence‑in‑chief (AB 34 ‑ 36) the complainant spoke only of acts of masturbation followed by simulated intercourse. Not surprisingly, she was not cross-examined about the omission. It was referred to by counsel for the applicant in his closing address as one of the factors that should lead the jury to reach an adverse view on the complainant's reliability. The trial Judge mentioned it only in the sense that the act of masturbation (even without the forced fellatio) could still amount to the offence of unlawful and indecent dealing and thus the omission was "perhaps not of any great significance".
Much was made in cross‑examination of the complainant's description of the act the subject of the unlawful carnal knowledge charge, count 3. The complainant testified that it was the first (and I think only) time when the sexual conduct proceeded to ejaculation. In her evidence‑in‑chief, the complainant said that it occurred at the second motel at which they stayed. It was in the evening, around tea time, and it happened during a television show called "It's a Knockout". She said the applicant penetrated her to "about an inch". She screamed and he withdrew but continued simulated intercourse until he ejaculated. She remembered it because it was the first time she had seen sperm and the applicant gave her a lecture about it. She did not say that anything of a sexual nature occurred the next morning before they left the motel. During cross‑examination she was referred to her deposition. In it she referred to the television programme by name but said that at night "nothing happened that [she could] remember". In the deposition she said that the act of penetration followed by simulated intercourse leading to ejaculation occurred when they awoke next morning. In cross-examination the complainant said that the applicant had attempted to penetrate her in the evening and then had done so again in the morning. She remembered it because when she had gone to the bathroom to wash, the sun was shining through the window. During re‑examination she was asked whether she had a recollection, one way or the other, whether the applicant had penetrated her vagina with his penis. She said: "Yes". She was then asked:
"Can you say with certainty, madam, whether that incident occurred in the evening, the night time, the following morning?‑‑‑It happened in the evening.
Was there physical contact between you and [the applicant] the following morning, if you can remember?---Yes, there was."
It can be seen that the complainant gave four different versions of that incident. In his summing up to the jury the trial Judge made no specific reference to these differences.
There were also a difference between the way the Crown opened and the evidence in relation to the fourth incident. The Crown opened on the basis that there had been acts of masturbation followed by oral sex. However, when the complainant came to give evidence she did not assert those acts. Rather, she said that it was another act of simulated sexual intercourse. Again, no specific reference was made to this difference when the trial Judge addressed the jury.
Recovered Memories - the Evidence
It seems that the issue of "recovered memories" first arose during the cross-examination of the complainant. For reasons which will appear shortly, and despite their length, I will set out in full the passages from the transcript which relate to this issue. The complainant was asked about her deposition in relation to count 3. These exchanges occurred (AB 85 ‑ 88, 125):
"All right, but when you spoke to the police officer in July on the day you signed the statement, you were speaking from your memory to the best of your knowledge and belief, weren't you?‑‑‑Yes.
And do you agree that on page 5 of that statement is the passage that I read to you a short moment ago?---Sir, I have been through therapy since this. Okay?
I beg your pardon?---Since this happened, since Ray Christophers has done what he has done to my life I have had therapy.
Are you saying that the therapy interferes with your recollections, Mrs Elliott?---No.
…
Yes?---Okay. I have seen a therapist to help me remember what I have blocked out - - -
I see?--- - - - of my memory.
All right. Perhaps just before I ask you to read, can you tell me how the therapist helped you to remember things that you had blocked out?---Just by sitting on a couch going into hypnosis.
I see?---Not so much hypnosis, just into a relaxed state.
When was that, Mrs Elliott?---I can't remember times or dates - going into a relaxed state and remembering exactly what happened.
All right. Was that after many sessions with a counsellor or professional person?---Yes.
Had you had those sessions before you went to the police in 1996?---No.
Had you been to those or such a person before you went to the police in 1997?---No. I kept it all backed up in myself.
Well, had you blocked it out?---As much as I could.
Are you saying that somebody helped you to remember that by putting you into a deep state or through hypnosis?---No.
All right?---I'm just saying that somebody helped me relax - - -
Yes?--- - - - to get it out. It's unhealthy to hold something like that in.
…
… You mentioned yesterday, I think, that you had at times been put into a deep state or undergone hypnosis. Do you remember saying that yesterday?---Not so much hypnosis.
When you say not so much hypnosis, have you ever been hypnotised?---Just to bring out things that I have blocked out of my memory.
So are you saying that after you had been hypnotised you remembered things that you otherwise didn't remember? ---Only certain little details. It's more what I did remember. I just blocked it out. It had to come out.
When you say blocked it out, is there a time when you can't remember certain things?---I could not continue getting married with a past that I had. When you get married your husband needs to know the truth about everything."
The Crown prosecutor returned to the issue in re-examination (AB 129 ‑ 130):
"… You referred to a therapist yesterday. Is that therapist a psychologist, a psychiatrist, a social worker, do you know?---He is a psychologist.
A psychologist. Have you been treated in any way, shape or form by way of hypnosis?---It's very hard to say. The only hypnosis I have gone under is what I have blocked out of my memory and have dreams about. I have horrific dreams about what has happened and to bring that out in the open I have to - I have to deal with it.
Right, now?---I know the difference between reality and a lie. I know about people that are tricked into thinking they're raped by their fathers and mothers and all of that. It is nothing like that whatsoever.
Please don't answer this question if you feel you can't, Mrs Elliott, but the allegations you make against the accused man, are they memories you have of things that he did to you, or do they fall into another category that I think could fairly be referred to as a repressed memory coming back up?---They are - it's not a repressed memory. It is definite memory. It is something that definitely happened.
So you understand that distinction that some psychologists make between a person having a memory and a repressed memory?---Yes.
The allegations you make against the accused man, on your oath, madam, are they memories you have of things that occurred to you or do they fall into the other category of repressed memories, that is, memories that have come back to you under counselling or the like? If you don't understand any of these questions, please say so?---I do understand the questions.
Okay. On your oath, what is your answer to that question, madam?---They are truthful memories."
I have set these passages out in full because it is not easy to discern exactly what the complainant was saying. On one view it may have been a case where the memories of the incidents had been truly and entirely suppressed and then recovered by the process of therapy. On the other hand it may have been a case of the complainant trying not to think about unpleasant memories but then, with the aid of therapy, being able to confront them. Indeed, it is not at all clear what form the therapy took and whether it involved hypnosis. With that in mind, it is interesting to see how counsel approached the issue in their closing addresses.
When counsel for the applicant was making his closing remarks to the jury, he referred to that exchange and to the topic of memories generally (transcript of closing submissions at 8 and 10):
"… a person can believe they are saying what happened but be demonstrably wrong, or a person can be making something up, or a person could be halfway between the two, or a person can have had shocking dreams and counselling and hypnosis - although this witness seemed to know or readily accept when my friend put to her this phrase of 'repressed memory'. She said, 'No, I've heard all about those. This is not that situation'.
But you are talking about a long time and a person perhaps not of terribly sound memory at that age, and so you may think even on that evidence, without applying other tests, that some dissatisfaction, some aspects of unreliability, start to appear.
…
If you consider the count … at the motel in Fremantle, or wherever it was - I think she referred to the brother-in-law as being near Fremantle, and he always referred to it in that fashion as well - as to what happened then, when, at night, when in the statement - 'Nothing happened that night that I can remember', then in testimony, not first up but second up, changing that and then saying, 'Yes, but I can remember it now. I have remembered this in the last period since 1997', and even then varying from that; or in Broome where my friend opens, quite properly so, saying, 'Here's an instance of what you will hear about Broome in a motor car', that there was this behaviour: there was masturbation and forced fellatio in a motor car', and the complainant testifies, and does testify about a motor car in Broome, and about driving somewhere and getting undressed and getting into the back seat, but nothing about masturbation and fellatio. She talks about the simulated intercourse-type situation and again is asked whether there is anything else - 'Can you remember anything else?' 'No, that's the one I remember'."
It can, I think, be seen from these remarks that while the defence acknowledged the complainant's evidence that this was not a situation involving repressed memories, the question of recovered memories remained a live issue and one that the jury should consider. In his address to the jury (transcript of closing submissions at 27) the Crown prosecutor quoted some of these passages from the evidence. The import of what the Crown prosecutor's remarks seems to have been that it would be open to the jury to regard the case as not involving repressed memories. Once again, there is no reference in the trial Judge's remarks to the question of hypnosis or of recovered memories.
The Longman Direction
In considering the adequacy of a so-called "Longman direction" in any particular case, it is important to bear in mind how the issue came before the Court in Longman and what the members of the Court actually said. There had been a rule of practice in sexual cases for the court to give a corroboration warning, namely, to tell juries that it would be dangerous or unsafe to convict an accused on the uncorroborated testimony of the complainant. The rationale was that "human experience has shown that … girls and women do sometimes tell an entirely false story which is easy to fabricate , but extremely difficult to refute": R v Henry (1968) 53 Cr App R 150 at 153. In other words, the warning placed the victims or alleged victims of sexual offences in a special category of witnesses. Then the legislature stepped in an enacted s 36BE of the Evidence Act 1906, which is now to be found in s 50. The effect of the section was (and is) that on the trial of a person for a sexual offence, a judge is not required by any rule of law or practice to give a corroboration warning and the judge "shall not" give such a warning "unless such a warning is justified in the circumstances".
The question that arose in Longman was the proper construction of s 36BE and its application in a trial for sexual offences where there had been a very long delay between the time of the alleged offences and the time of the complaint. In their joint judgment, Brennan, Dawson and Toohey JJ pointed out that the mischief against which the section was aimed was the unwarranted reflection on the victims of sexual offences caused by them being placed in a special category of witnesses. Their Honours said, at 86 and 87:
"… a warning might be needed not only to avoid the risk of miscarriage of justice which the rule of practice seeks to avoid but a risk of miscarriage arising for reasons other than the suspicion attaching to the evidence of any alleged victim of a sexual offence. Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Bromley v. The Queen, at pp 319, 323-325; Carr v. The Queen, at p 330.
…
If the warning to which [s 36BE(1)(a)] is directed is a warning that it is generally unsafe to convict for any sexual offence on the uncorroborated evidence of the alleged victim (or, to put the warning another way, that it is unsafe to convict on the uncorroborated evidence of the alleged victim of the particular sexual offence charged because evidence of that kind has been shown by experience to be especially liable to fabrication), [s 36BE(1)(a)] does not affect the requirement to warn about other perceptible risks of miscarriage of justice. A warning may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence is tendered to prove. [Section 36BE(1)(a) leaves that situation unaffected."
Deane and McHugh JJ gave separate judgments in which they concurred in the result but gave a slightly different interpretation to the second limb of the section, that is, the categorisation of the warning which was the subject of s 36BE(1)(b). The difference in approach is not material for present purposes. What is, I think, important is that their Honours confirmed that the section did not negate the responsibility of a trial judge to give a warning when the circumstances of the case so require. They also pointed out that the critical issue was the reliability of the impugned testimony and that the trial judge should identify the particular features of the evidence which might give rise to the risk of a verdict that was unsafe and unsatisfactory. Deane J said at 95 and 101:
"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury. Section 36BE(1) neither negates that general responsibility in cases to which it applies nor precludes the giving of a warning of the kind referred to in the sub-section if the trial judge is satisfied that the particular circumstances of the case require it.
…
It was not merely a matter of whether the jury was satisfied that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant's guilt."
His Honour also said, at 100, that long delay would not, of itself call for a warning but that the disadvantages to the accused could be covered by directions "aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences."
McHugh J, at 105, pointed out that the conventional corroboration warning was not based on the circumstances of the particular case. Rather it was based on the general theory that placed victims of sexual offences in a special class of witnesses. Delay alone would not justify the giving of a conventional corroboration warning. His Honour continued, at 107 and 108:
"If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case: Carr, at p 318.
…
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred."
In my view a number of propositions can be extracted from the judgments in Longman and the discussion about Longman in other cases:
1.The "Longman direction" is a rule of practice that applies notwithstanding the enactment of s 36BE (now s 50) of the Evidence Act 1906.
2.It is not a conventional corroboration warning.
3.It is borne out of the circumstances of the particular case and not from some general appreciation of the position of particular classes of witnesses or classes of offences.
4.It arises because of the overriding obligation of a trial judge to ensure that there is a fair trial and avoid a perceptible risk of miscarriage of justice occurring, again because of the circumstances of the particular case.
5.The warning is concerned both with the reliability and the veracity of the testimony given by the witness.
6.There is no prescribed or ritualistic formulation in which the warning is to be delivered: James v The Queen [2000] WASCA 100 at [23]. It must be tailored to the features of the case that have dictated that it be given. This is not surprising given that it arises from the circumstances of the particular case.
7.It is important that the trial judge point out to the jury the particular features of the evidence that might have an impact on the reliability of the impugned testimony and the difficulties that this has, or may have, caused for the presentation of the defence.
8.Although the word "dangerous" is used from time to time in the judgments in Longman, the adequacy of the warning in any particular case is not necessarily sensitive to whether that phrase was uttered: Gaulard v The Queen [2000] WASCA 218 at [14]. What must be brought home to the jury is that they need to be "persuaded of the truth and accuracy of the evidence before they may place reliance on it": James at [22]. In this context, "truth and accuracy" equates to reliability.
The Adequacy of the Direction
The main features of the Longman warning given in this case can be summarised as follows:
1.The evidence of the complainant was critical to the Crown case.
2.The alleged offences occurred 23 years ago.
3.In assessing the truthfulness and reliability of the complainant's evidence, the jury should bear in mind that the longer the delay the greater the possibility of error in recollection of the incident.
4.Recollections can be fallible and circumstances such as imagination, prejudice and outside suggestion can affect capacity to remember, particularly when the things concerned happened to a young child.
5.Apart from the testimony of the complainant there was no independent evidence implicating the applicant in the commission of the offences.
6.Because sexual offences of this nature usually occur in private it is not surprising that there is no independent evidence.
7.There is a difficulty for a complainant in producing independent evidence.
8.It is difficult for the accused person to produce independent evidence.
9.The longer the delay between the alleged incidents and the report of them by the complainant to the authorities, the more difficult it became for the applicant to test the evidence.
10.The long delay coupled with the lack of precision as to the dates on which it is said each offence occurred made it difficult for the applicant to examine in detail the circumstances of the alleged offences, and to produce, for example, evidence as to what he was doing on a particular day.
11.The jury may act on the complainant's evidence alone provided they weigh it up with great care and caution and, after doing so, are satisfied beyond reasonable doubt that her evidence was truthful and accurate.
It is important not to examine individual phrases or passages from a summing up out of context without ascribing to them their relative significance when taken as part of a whole. Accordingly, it is necessary to refer also to the passage in which the trial Judge pointed out that the defence case had highlighted inconsistencies in the complainant's evidence. However, except in relation to the first and fourth incidents (and then only in the context of whether they could, as a matter of law, sustain convictions for unlawful and indecent dealing) his Honour did not specify what the inconsistencies were.
I have already commented that the trial Judge did not refer to the "recovered memories" problem. In an article by M T Orne entitled "Hypnosis, Useful in Medicine, Dangerous in Court", December 1983, 12 US News and World Report 67 the author described hypnosis in these terms: "A state or condition where the subject focuses his mind on the suggestions of the hypnotist so that he is able to experience distortions of memory or perception. For the time being, the subject suspends disbelief and lowers critical judgment." Looked at in this way, where a person relates to the court memories which he or she has recovered with the assistance of hypnosis an issue of reliability will ordinarily arise. I am not here talking about the admissibility of the evidence but rather as to its treatment by the trier of fact.
In R v McFelin [1985] 2 NZLR 750 the Court of Appeal pronounced guidelines for the admissibility and use of hypnotically‑induced evidence. The McFelin guidelines were adopted and applied by Hunt J in R v Jenkyns (1993) 32 NSWLR 712. In Jenkyns, at 715 ‑ 16, Hunt J pointed out that one of the McFelin guidelines was:
"… if hypnotically‑induced evidence is admitted into evidence the trial judge should warn the jury of the special need for caution before placing reliance on it. The warning need not be in any particular terms, but it should adequately alert the jury to the dangers inherent in the use of hypnotism: cf Bromley v The Queen (1986) 161 CLR 315 at 319 ‑ 20."
I can appreciate that the way in which the recovered memories issue arose would have created forensic difficulties, especially for the defence. The complainant's first reference to hypnosis in cross-examination apparently took everyone (the Court and the Crown included) by surprise. It is understandable that counsel for the defence was somewhat guarded in the extent to which he cross-examined on the issue. He had not had any opportunity to prepare and, for example, to identify the practitioner who had treated the complainant and to ascertain the precise form which the counselling sessions took. The result was evidence that was somewhat vague and lacking in precision. The complainant initially said she had "seen a therapist to help [her] remember what [she had] blocked out … of her memory". She had had many sessions with a counsellor in which she had gone "into hypnosis … not so much hypnosis, just into a relaxed state … and remembering exactly what happened". She had undergone the process "just to bring out things that [she had] blocked out of [her] memory".
In re-examination the complainant said she appreciated the concept of repressed memories but that these were not of that type. They were definite memories, something that definitely happened. Nonetheless, I think it is apparent from his closing address that counsel for the defence was asking the jury to consider the reliability of the testimony because, among other things, the complainant had been influenced by the process of counselling. I say this because of the reference by counsel to the attitude of the complainant: "I can remember it now. I have remembered this in the last period since 1997." It is clear from the complainant's testimony that she did not commence the therapy sessions until after she made the statement to the police in July 1997. It is for this reason that the alleged inconsistencies between her deposition and her evidence take on significance. It raises the possibility that her account of the incidents may have been influenced by the process of counselling, whatever form it took.
This may or may not have been a case of recovered memories. But I think it was a live issue for the jury to consider. They may well have accepted the complainant's evidence that these were not recovered memories, but definite memories of things that actually happened, and that the process of counselling had only served to encourage her to bring them to the forefront of her considerations and to confront them. However, it was nonetheless a matter for the tribunal of fact to consider. It was inextricably tied in with the issue of reliability that was central to the process of reasoning on which the jury was obliged to embark.
In accordance with Jenkyns there may well have been a requirement, independent of Longman considerations, to give a warning to the jury about the use to which they could put the testimony that was, or may have been, affected by the counselling process. In the circumstances of this case it probably does not matter a great deal. In relation to at least some of the counts, the detail of the incidents given by the complainant differed from that which she had given in her deposition and which, I assume, formed the basis on which the Crown opened the case. These are differences which the defence categorised as inconsistencies in her account of events. The complainant explained the differences, at least in part, by reference to the counselling process that assisted her to bring forward memories that had previously been "blocked out" of her consciousness. In the way that the trial was conducted, these differences were material to the reliability of the complainant's testimony. In my view, it was incumbent on the trial Judge to make specific reference to them in his address to the jury. It was not sufficient to make the general comment that the defence case relied on the inconsistencies in the complainant's evidence. As I have previously stated, there is no reference in his Honour's remarks to the question whether or not some of her evidence was affected by the counselling process and, if so, what the jury should consider in relation to it.
Although the inconsistencies and the issue of recovered memories (if indeed the jury were to find that this is what they were) applied to only some of the counts, they might conceivably have had a bearing on the jury's assessment of the complainant's credibility overall. Accordingly, I do not think that the difficulties can be quarantined, so to speak, so as to infect only the convictions on the counts to which they relate directly.
In my view (and with the possible exception of the material to which the second ground of appeal relates) the direction cannot be criticised for what it says. However, I think that there is a problem with the failure to make express reference to what were acknowledged inconsistencies in the Crown case and to the repressed memory issue in a way that related them to the reliability of the complainant's testimony. Individually, the defects may not have had overwhelming significance. However, when they are taken together I think they amount to appealable error. For this reason, I think the first ground of appeal has been made out.
The applicant also complained that the antipathy that the complainant demonstrated towards the applicant when giving evidence was another factor that should have been drawn to the attention of the jury. Such expressions of bitterness are relatively common in cases of this nature. Each case will depend on its own circumstances. I am not persuaded that what the complainant said about the applicant in this case called for specific comment to be made by the trial Judge.
The Erosion of the Force of the Warning
The second ground of appeal is based on the decision of the Court of Appeal in Hyatt v The Queen (1998) 101 A Crim R 83. In that case the appellant was convicted of a series of sexual offences against two complainants. In relation to one of the complainants, there was a 36‑year delay between the date of the alleged offences and the time of complaint. At trial, a Longman warning had been given. Its adequacy was under challenge in the appeal.
The trial Judge told the jury that delay was something they would have to consider. Memories fade over time. Facts may appear distorted or may become confused with the passage of time. The accused had been prejudiced by the delay in that there was a difficulty in obtaining evidence to counter the charges. But then he went on to say that the Crown was entitled to proceed as there was no legal limitation period in criminal matters. He also said that there was no requirement at law for the evidence of the complainant to be corroborated and that "it is to be expected in many of these sorts of sexual cases that there would be nobody who is around who can be a direct witness".
The Court held that this was a case calling for an "emphatic" warning. The direction was far too equivocal and had been qualified to such an extent that it did not serve the purpose which the law required. Winneke P (with whom Brooking and Charles JJA agreed) said, at 92:
"The strength of the warning and the underlying reason for it were diluted, as I see it, by the qualifications which his Honour imposed upon them. Having told the jury that the staleness of the offences operated to the applicant's prejudice because of his inability to test them, he immediately diminished the significance of that prejudice by telling the jury that the Crown had no obligation to proceed with criminal matters within a period of 'legal limitation'. Such a direction was calculated, in my view, to induce the jury to believe that prejudice flowing from the inability to adequately meet and test serious allegations had to be viewed in the context of the Crown's right to commence criminal proceedings at such time as it pleased. This, I think, was misleading, not only because it had a tendency to distract the jury from the purpose of the warning but also because it tended to suggest that prejudice to the accused was a necessary and unavoidable by-product of the Crown's right to lay charges as it pleased.
Having made the comments to which I have just referred, his Honour appears to have further diminished the significance of the warning which he was intending to give by saying that corroboration of the complainant's evidence was not required by law. Indeed he said ‑
'it is to be expected in many of these sorts of sexual cases that there would be nobody who is around who would be a direct witness.'
Such a statement must necessarily detract from the strength of the warning which in my view was required in this case because the nature of the warning is required to bring home to the jury the danger of convicting on the uncorroborated testimony of the complainant.
It seems to me that his Honour was not so much giving a warning which the circumstances of the case required to protect the interests of the accused against the prejudice that he was suffering, but was more concerned to give a direction which was even-handed between the interests of the Crown on the one hand and the accused on the other. Such an approach was not appropriate in a case such as this one."
I can well see why the Court came to the view which it did on the warning that had been given at trial. There was a combination of factors that could properly be seen as diminishing or diluting the strength of the warning. The reference to a limitation period is curious. There were comments about the position of the Crown and of the defence which were described by the trial Judge as being "on either side of the ledger".
However, I am not sure that I would go quite as far as did the Court in Hyatt. I can see little wrong with the jury being told that there is no requirement at law for corroboration. It is simply another way of putting what the trial Judge put to the jury in this case, namely, that they were entitled to act on the evidence of the complainant alone provided they exercised the requisite degree of care. Nor can I see much wrong with a bland statement that sexual contact usually takes place in private. However, if that statement is made it ought not to be embellished so as to convert it into a back-handed way of supporting the Crown case. It is true that the purpose of a Longman warning is not to bring about a balance between the Crown and the defence or to level out the playing field. On the other hand, as Winneke P recognised in Hyatt, at 90, the warning "is not to be regarded as something akin to a direction of acquittal". This is another reason why some reference to the absence of corroboration, not itself being of significance, is not inimical to the true purpose of the warning.
The statement of Winneke P that "the nature of the warning is required to bring home to the jury the danger of convicting on the uncorroborated testimony of the complainant" must, I think, be seen in the context of reliability rather than as another way of giving a conventional corroboration warning. If a trial judge feels that a conventional corroboration warning is warranted, he or she is at liberty to deliver it under the terms of the legislation. But if it is to be a Longman warning then the note of caution referred to in Longman by Brennan, Dawson and Toohey JJ needs to be addressed. Their Honours said, at 87:
"Perhaps it should be added that the judge's discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which [s36BE(1)(a)] eliminates."
If there is a problem with the direction given in this case, it is with the slight embellishment constituted by the words to the effect that the delay causes difficulties for the complainant in collating independent evidence. It would, I think, be better to omit reference to that concept in directions of this nature. However, had it been the sole ground of challenge to the convictions I do not think it would have succeeded.
Conclusion
In my view the appeal must succeed and the convictions should be set aside.
The next question is whether there should be a re-trial. I am aware that the applicant was sentenced to imprisonment for 6 years. I note also that he has been in custody since 29 March 1999 and has therefore served more than three‑quarters of the time before which he would first come up for consideration for parole. While that may be a factor that the prosecuting authorities will take into account, I do not think it should govern the exercise of the discretion whether or not to order a re-trial.
In my view there was evidence on which a jury, properly directed, could have returned verdicts of guilty on each of the counts. It is true that the defects in the direction mean that the applicant may have lost a chance which was fairly open to him of being acquitted. However, it could not be said that had the Longman warning been as expansive as is suggested in these reasons that an acquittal was inevitable. It is a classic jury question. This is not a case where it might be said that a re‑trial would allow the Crown to supplement a case which has proved to be defective. Accordingly, I think there should be a re‑trial: King v The Queen (1986) 161 CLR 423 per Dawson J at 433.
This is not a decision to which I have come lightly. The prospect of the complainant having to go through the trial process again in the circumstances in which these charges arose is unfortunate. But this has to be considered against the fundamental public interest that an accused person must have a fair trial and that a wrongdoer (if he or she is proved so to be after a fair trial) is brought to justice.
Because this Court is to order a re-trial, there is one other point that ought to be raised. The Crown conducted the case in relation to count 3 on the basis that for there to be a conviction of unlawful carnal knowledge there must be penetration of the vaginal canal of the complainant. The trial Judge directed the jury in the same way, namely that they could not convict if they could only be satisfied that there was penetration of the outer lips of the vagina. I do not think this correctly represents the law.
The offence of unlawful carnal knowledge was never defined in the Criminal Code. It must therefore take its meaning from the common law. At common law, the offence was complete once there was penetration by the penis of the labia of the pudendum, no matter how little that penetration may have been: R v Lines (1884) 1 Car & K 393; R v Pinder (1992) 8 WAR 19 at 24.
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