Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd
[1998] VSCA 43
•23 April, 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 56 of 1998
| THE QUEEN |
| v |
| RICHARD NORMAN VANDRINE |
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JUDGES: | PHILLIPS,C.J., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 June 1998 | |
DATE OF JUDGMENT: | 17 September 1998 | |
MEDIA NEUTRAL CITATION: | [1998] VSCA 43 | |
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CRIMINAL LAW - Sufficient directions as to standard of proof - Verdicts not inconsistent - Delay in complaint - Jury to be informed of possible consequences of delay - Whether re-trial to be ordered or a verdict of acquittal entered.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr G.R. Flatman, Q.C. Ms K.E. Judd | P.C. Wood, Solicitor for |
| For the Applicant | Mr L. Lasry, Q.C. Mr D. Allen | Galbally & O'Bryan |
PHILLIPS, C.J.:
I have had the advantage of reading in draft form the judgment of
Buchanan, J.A. I agree with His Honour’s conclusions as to grounds 2, 3, 4 and 5 and I would subscribe to his reasons for reaching them. It follows that I agree that the application touching convictions should be granted. I have also noted His Honour’s conclusion as to ground 1.
The jury convicted on counts 2, 3, 5 and 6 and acquitted on counts 1 and 4. As Buchanan, J.A. has shown, there are a variety of reasonable explanations for the different verdicts.
The case for the prosecution depended on the evidence of the complainant. The Judge told the jury so in very plain terms. The Crown called five witnesses in addition to the complainant. Two of these, possibly three, were called at the behest of the defence. The first of these witnesses was the complainant’s mother. In her evidence-in-chief, she proved the complainant’s date of birth; the address of her residence at material times and that when the complainant was aged four or five she regularly visited the applicant’s home to play with one of his children. She also gave evidence that the complainant and the applicant attended at Little Athletics with the applicant “clocking” the children’s races. None of these matters was in issue, the complainant having already given evidence about them. Towards the end of her evidence-in-chief the witness was asked by the Crown prosecutor:
“Question: So far as you were concerned, did you get on with the Vandrine family, specifically Richard Vandrine?
Answer: Yes.
Question: So far as you were concerned, were there any problems at all with Richard Vandrine or his family?
Answer: No.”
It may be said that her evidence-in-chief contributed somewhat more to the defence than to the prosecution. Cross-examined, she agreed that the entire time she was going to Little Athletics she worked with the applicant - standing next to him - and that the complainant “happily” attended Little Athletics in those circumstances. She also said that the complainant had never once at the ages of five or six expressed any hesitation or reluctance about going to Little Athletics and that the complainant had never once said that she did not like the applicant. Cross-examined further, she said that the complainant never said the slightest thing to her to make her believe that there was anything untoward happening to her at the home of the applicant.
She added that she never observed the slightest sign of discomfort or distress in the complainant after visiting the applicant’s home, nor did the complainant speak of being unwell, in pain or being uncomfortable after such visits. She said she never took the complainant to a doctor for any unusual medical problem relating to her genitals after the visits within the time-frame encompassed by the presentment.
The witness also gave answers which established an opportunity for a man other than the applicant to commit offences on the complainant. Cross-examined further, she said that in 1997 the complainant had been in intensive care in a hospital, “fitting”, and had attended a psychologist for some months before she made a statement to the police.
It was then put to her that in June, 1997 she had told a later witness (a policewoman named Stevens) that her solicitor had told her that a statement had to be made and that if it were not made before the end of June it might be harder to get crimes compensation because the rules relating to it were about to change.
She also agreed that she had given the solicitor instructions in “June or July” to file an application for crimes compensation on behalf of the complainant.
Defence counsel would have been justified in feeling pleased with his efforts.
The next witness called by the Crown was a Mr Moss, the applicant’s brother-in-law, who gave evidence about the house occupied by the applicant and his family in Craigieburn from the early 1980’s for a nine or ten year period. He was shown some photographs taken by the police, which included photographs of the toilet. He thought the toilet had been repainted and that, when he was familiar with the house, it was “an off-white colour, with a little tinge of green in it”. He said the toilet cistern had been changed and that “there used to be a bit of a curtain” over the toilet window. Otherwise, the panes seemed the same.
He thought the cistern had, when he knew the house, been of a one flush type with a button in the middle and that the toilet seat in those times had been a light brown wooden one. The complainant had said it was “dark” a “brownish, yucky colour”.
Asked about a lock shown in the photographs, he said that “there used to be a little snib bolt there ” that bolted into the door frame. Asked as to the backyard of the house he said there used to be a caravan there and that he had seen, on occasions, the applicant’s mother sweeping a path at the back of the premises.
He remembered the applicant’s family having four dogs and that “a fluffy brown one” and a German Shepherd had a tendency to “nip”.
Cross-examined, he said he did not remember the applicant’s family ever having a Chihuahua. He said that the applicant’s home, as he knew it, was a busy household and that the applicant’s mother swept the concrete “a lot of times”.
It may be said that, overall, the evidence of Mr Moss did little, if anything, to advance the Crown case.
The next witness was a police officer who did no more than prove the photographs.
Then, Senior Constable Stevens of the Seymour Community Policing Squad was called by the Crown, (obviously, in that she gave no evidence-in-chief other than her identity, at the behest of the defence).
Cross-examined, she said that in September, 1990, when she saw the complainant she found her to be “very vague” and that the complainant “did not make a clear disclosure of sexual abuse to her”. She said that the substance of the complainant’s complaint was that “someone had walked in on her in the toilet” when she was about six and that this had given her some sort of a fright. She said that the complainant did not identify anyone or say how many times an incident had happened. It was put to her that she suggested to the mother that the complainant might have some psychological counselling and that she had arranged a referral. She agreed. She then gave evidence as to the conversation concerning crimes compensation which had earlier been put to the mother.
The final witness for the Crown was a Senior Constable Masters from Broadmeadows Community Policing Squad whose evidence was introduced in a fashion similar to that of the witness Stevens.
Cross-examined, he said he had received a phone call from the complainant at “four o’clock on the 17th”. The complainant had said that she wished to report sexual abuse performed on her when she was five till she was 11. He said he had later interviewed the complainant and he assented to a suggestion that, during the interview, the complainant continually deferred to a social worker, she having insisted that that person be present.
It follows from the above summary that the evidence of the witnesses, Stevens and Masters, was directed squarely to the complainant’s credibility.
Thereafter, there followed the applicant’s evidence in which he denied any wrongdoing.
Buchanan, J.A. has set out in detail the criticisms of the complainant’s evidence put by counsel for the applicant to the jury. Similar criticisms were voiced to the jury by the applicant’s trial counsel. Yet the jury must have found the complainant to be, at least with respect to the counts on which they convicted, a convincing witness.
As Brennan, J. (as he then was) said in M. v. The Queen (1994) 181 CLR 487 at 507-508:
“It is the jury’s composite and broad experience of life that is paramount in our structure of administering criminal justice. Words in a printed transcript may tell one story to the critical legal mind and another to those who test a story for truth or falsehood according to a broad experience of life. Inconsistencies which loom large when painted with the colours of advocacy may be insignificant minutiae once a witness convinces a jury that he or she is honestly attempting to tell the truth. It is the sad but salutary experience of every counsel for the defence that the prosecution’s ‘weak point’ is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”
But it must be steadily borne in mind that the jury made their assessment of the complainant without the benefit of the significant direction which Buchanan, J.A. has so carefully identified.
His Honour has also found, as to ground 1 that, overall, the evidence at trial was such that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. Accordingly, he is of the opinion that the orders of the Court should include the entry of a judgment and verdict of acquittal with respect to the counts upon which the applicant was convicted.
As the upholding of ground 4 means that the applicant’s convictions must be quashed, I have approached the issue of the future course of this matter from a different direction to that taken by Buchanan, J.A. Should the Court order that a new trial of the applicant be had? Or, should it, in the special circumstances of this case, direct a judgment and verdict of acquittal, vide R. v . Bartlett [1996] 2 V.R. 687 and R. v. Wilson and Grimwade [1995] 1 V.R. 163?
Upon any retrial the Crown could not lead evidence touching counts 1 and 4 on the current presentment, R. v. Young [1998] 1 V.R. 402. Nor, because of the acquittals, could evidence touching counts 1 and 4 be properly regarded as “propensity” evidence or as evidence of the res gestae. It is inherently unlikely that any defence counsel would want to raise this evidence in cross-examination.
The complainant would have to start her evidence as to counts 2 and 6 (the “guided masturbation” counts, to use the term of Buchanan, J.A.) without explaining how the applicant’s penis had become exposed.
The complainant’s evidence was that all the offences had been committed in the toilet while she was alone with the applicant. Upon close examination it is apparent that there are only three instances in which the complainant’s account might be tested against apparently objective evidence. The first of these is the complainant’s allegation that she felt pain during the commission of counts 1 and 4. This assertion could be measured against her mother’s evidence that she never observed the slightest sign of discomfort or distress after the complainant’s visits to the applicant’s home, nor did the complainant speak of pain or discomfort. Nor was the complainant ever taken to a doctor for any medical problem relating to her genitals after the visits.
The second instance concerned the complainant’s evidence that when she was standing on the floor during the commission of count 4, she looked out the toilet window and saw the grandmother of the house sweeping a path near a parked caravan. This could be measured against the objective evidence in the photographs of the height of the toilet window and the complainant’s own confession that at the material time she was not tall enough to reach the door handle of the toilet. Other evidence indicated she was but four years of age at that time.
The third instance arises out of the complainant’s evidence that she was attacked by a Chihuahua dog when she arrived at the applicant’s residence on the occasion when counts 4, 5 and 6 were committed. This could be measured against evidence of Mr Moss that he could not remember the applicant’s family ever having had such a dog. This supported the applicant’s evidence to the same effect. The defence, in effect, sought at the applicant’s trial to argue that, if there was no such dog in the household, then the occasion embracing counts 4, 5 and 6 never occurred.
In addition, a significant part of the defence case at the trial consisted of previous statements on oath by the complainant that she could only remember “one specific incident” which she described as “the first one” or had assented to the proposition that it was “the first one you’ve told us about”, vide Exhibits “6”, “7” and “8”. This must mean the incident constituting count 1. Accordingly, although the defence could still assert, on the basis of the evidence about the dog, that there could not have been a second series of incidents, resort to the exhibits in this connection would not be practically possible without in some way disclosing the events touching count 1.
By reason of the foregoing I have come to conclude that defence counsel could not ventilate the above three incidents without bringing to the notice of the jury an unacceptable amount of prejudicial material and that, accordingly, a retrial on counts 2, 3, 5 and 6 would present such practical difficulties for the conduct of the applicant’s defence that he would be denied a fair trial. The Crown elected to proceed on six counts. It failed on counts 1 and 4, of which the applicant must now be taken to be innocent. The public interest in a fair trial, recently affirmed in s.61(3) of the Crimes Act, is not to be underestimated. Accordingly, in the special circumstances of this case, in my opinion a judgment and verdict of acquittal should be entered as to those counts. It is therefore unnecessary to consider ground 1.
CALLAWAY, J.A.:
I have had the advantage of reading in draft the reasons for judgment prepared by the other members of the Court. I agree, for the reasons their Honours give, that ground 4 should be upheld and that, in the particular circumstances of this case, a judgment and verdict of acquittal should be entered.
BUCHANAN, J.A.:
On 11 March 1998 the applicant was arraigned in the County Court and pleaded not guilty to a presentment containing six counts. The offence the subject of each count was alleged to have occurred between 1 October 1983 and 31 March 1984. Four of the counts alleged indecent assault contrary to s.44(1) of the Crimes Act 1958 as it then stood and two of the counts charged sexual penetration of a child under the age of ten years in that the applicant introduced his penis into her mouth contrary to s.47(1) of the Crimes Act as it then stood. The complainant in respect of each count was a girl aged four or five years at the time of the alleged offences, a playmate of the applicant's daughter, who lived in the same street. At the time of the alleged offences the applicant was 38 years old.
The principal witness for the prosecution was the complainant. Indeed she was the only witness who gave direct evidence of the offences alleged against the applicant. The complainant gave evidence of two specific occasions when she visited the applicant's house. Each occasion gave rise to three counts, two of indecent assault and one of sexual penetration. The complainant said that on the first occasion she knocked on the door of the applicant's house. The applicant answered the door and took the complainant to the toilet. The complainant said:
"He turned me facing the toilet and he unzipped his pants ... and then he put his penis up behind me, but I can't remember if it went up the front or the back, and that - I mean my behind or my vagina."
The complainant said that she knew it was his penis because "I felt it and it hurt." She said she felt pain. She continued:
"He was moving backwards and forwards, and making it move inside, and then he took it out and turned me round and made me rub on it, like, pulling him off kind of thing."
The complainant described the applicant putting his hands over hers and guiding her in masturbating him. She said that after the masturbation:
"He made me kiss it and then he put it in me mouth and put his hand on the back of my head, like, forcing it - me down on it. ... and then he - he stopped it - stopped me doing that and put his penis back in his pants and fixed himself up and me up and then walked out."
The same events occurred on the second occasion described by the complainant. She said that on both occasions she felt the applicant's pubic hair rubbing against her back. In respect of the second occasion the complainant added two accompanying events. The first was that she recalled being attacked on the ankle by a Chihuahua at the applicant's house. She said she screamed and the applicant came and took her to the toilet. The second was that when she had her back to the applicant the complainant said she saw through the toilet window the grandmother of her friend sweeping in front of a caravan.
We were told that counts 1, 2 and 3 arose from the first occasion described by the applicant, and counts 4, 5 and 6 arose from the second occasion. The counts of sexual penetration (counts 3 and 5) concerned the penetration of the complainant's mouth. The two indecent assaults on each occasion were first the guided masturbation (counts 2 and 6) and secondly the placing of the applicant's penis in the person of the applicant and moving it in and out (counts 1 and 4).
The complainant said that the applicant committed the same acts on six or seven occasions over a period of two weeks. That is, on each of six or seven occasions the applicant was said to have placed his penis inside the complainant's anus or vagina, placed his penis in her mouth and made her masturbate him.
The complainant made no complaint to anyone about the applicant's conduct until she was 11 years of age. Her mother said she learned that a man, not the applicant, who had baby-sat the complainant, had been charged with sexual assault of children. The complainant's mother said she asked the complainant if anyone had touched her and the complainant answered: "Richard Vandrine". The complainant was said to have told her mother: "He put it out and made me touch it." The complainant's mother took the complainant to the Seymour Community Policing Squad. A policewoman gave evidence that she was told by the complainant's mother that the complainant made the disclosure about the applicant after a TV programme about child abuse had prompted the mother to question the complainant. The policewoman said the complainant was very vague. She said:
"The only clear indication of what she was trying to tell me had occurred was in relation to the toilet, she said that someone had walked in on her in the toilet, but apart of that there was no clear disclosure."
The policewoman refreshed her memory from notes that she made at the time she interviewed the complainant.
Seven years later, in June 1997 the complainant complained to a member of the Broadmeadows Community Policing Squad. He recorded that the complainant said that she had been sexually abused from the ages of 5 to 11 years. It was that interview that eventually led to the laying of the charges against the applicant.
There are five grounds of appeal. The first is that the verdicts are unsafe and unsatisfactory. The other grounds attack particular aspects of the learned judge's charge and the verdicts. It will be convenient to turn first to the particular grounds of appeal.
Grounds 2 and 3 are as follows:
"2.That the learned trial judge erred in informing the jury that it appeared to him that the sole issue in relation to the four counts of indecent assault (counts 1, 2, 4, 6) is whether or not they occurred.
3.That the learned trial judge erred in directing the jury as a matter of law that the question of whether or not the accused committed the acts of sexual penetration (counts 3 and 5) is a factual matter for the jury to decide."
Having regard to the charge as a whole, I do not consider that the jury would have understood that their verdicts depended on whether or not they thought that the events alleged by the complainant had occurred rather than on whether or not they were satisfied to the requisite standard of proof that the events had occurred. Both before and after the remarks complained of by the applicant the learned judge spelled out in unambiguous terms that the prosecution was required to prove each of the elements of the offences beyond reasonable doubt. Further, the context of the remarks was that his Honour was pointing out that the case was not one which depended upon whether the acts occurred in a particular way, such as by accident, but rather whether the acts complained of occurred at all.
Ground 5 is that the verdicts of acquittal of counts 1 and 4 are inconsistent with the verdicts of guilty of counts 2, 3, 5 and 6.
It will be recalled that counts 1 and 4 were founded upon the complainant's evidence that when her back was to the applicant she heard him unzip his pants and felt his penis penetrating either her anus or her vagina. That evidence was literally evidence of sexual penetration, a more serious offence than indecent assault. It would appear that the draughtsman of the presentment doubted whether the complainant's description would be accepted at face value and possibly hoped that a lesser offence could be gleaned from it.
The jury may well have been influenced by the prosecution's lack of faith in the complainant's evidence concerning counts 1 and 4. They may also have been affected by the inability of the complainant to say whether her vagina or anus was penetrated. The complainant only felt the penetration, whereas she saw and felt the acts founding counts 2, 3, 5 and 6. On the other hand the jury was prepared to accept the clear evidence of masturbation and fellatio, which matched the counts of assault and sexual penetration. The jury may also have rejected the complainant's evidence that she saw the grandmother from the toilet window and may have thought it rendered doubtful both the counts which alleged assault when the complainant faced the window. Another point of distinction is that the conduct said to found counts 1 and 4 could be expected to injure or at least cause physical discomfort to a very young girl, yet the complainant said she could recall no injury, bleeding, soreness or discomfort. In my view these were grounds for supposing that the complainant's evidence was more reliable in relation to counts 2, 3, 5 and 6 than it was in relation to counts 1 and 4. In this respect the case was unlike that of Jones v. The Queen (1997) 72 A.L.J.R. 78, at p.86, where Gaudron, McHugh and Gummow, JJ. said:
"It is difficult then to see how it was open to the jury to be convinced beyond reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."
In the present case the nature of the complainant's evidence and the surrounding circumstances formed a rational basis for viewing her evidence in relation to counts 2, 3, 5 and 6 as more reliable than her evidence in relation to counts 1 and 4. The different verdicts are not "an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty" or "confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law." MacKenzie v. The Queen (1996) 90 A.Crim.R. 468, at p.483, per Gaudron, Gummow and Kirby, JJ.
Ground 4 is as follows:
"4. That the learned trial judge erred in failing to warn the jury that the consequence of the delay and the prosecution was the loss to the applicant of the means of more adequately testing the complainant's allegations which would have been open to him had there been no such delay."
The delay between the time at which it was alleged the offences occurred and effective complaint was made was very long indeed. The complaint in 1990 was so muted as to be barely discernible. I have set out the essence of the evidence of the policewoman to whom the complaint was made. It took another seven years before sufficiently precise information came forward to enable the applicant to be charged.
The result of delay of that magnitude was that the accused was deprived of the opportunity of making contemporaneous enquiry. After some 14 years it was difficult, if not impossible, to find witnesses and explore the details of the complainant's allegations and perhaps produce evidence refuting the allegations or throwing doubt on their accuracy. The Director of Public Prosecutions said that the applicant had not identified any prejudice which he suffered as a result of the delay. There was no particular piece of evidence and no particular witness that could not be elicited or called because of the delay. However, there were issues, such as the presence of a Chihuahua and the existence of a lock on the toilet door, which would not have arisen if there had been no delay. Nor would the applicant have been cross-examined as to his memory of the furnishing and decor of a house he quit many years before the trial. And there were subjects which the applicant could have investigated, such as the movements of the grandmother, the days and times when he was present in the house and the complainant visited the house, the recollections of other inhabitants of the house, and the type and colour of the clothes he wore, which might have yielded evidence or information to test the complainant's account. Fourteen years later the applicant was not even able to say whether such investigation would have been fruitful.
In Longman v. The Queen (1989) 168 C.L.R. 79, at p.91, Brennan, Dawson and Toohey, JJ. said:
"Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."
In my opinion those statements are true of the evidence in the present case. Yet the jury was not told that because the complainant's evidence could not be adequately tested by reason of the passage of time, it would be dangerous to convict on that evidence alone unless the jury took the steps described by their Honours. In the present case the learned judge said only:
"I further direct you that in the circumstances of this case it will be dangerous to convict the accused on the evidence of [the complainant] of any of the offences comprised in any of the counts unless after subjecting her evidence to close and careful scrutiny and taking into account all of the circumstances that are relevant to its evaluation and to which I have drawn your attention, and remembering the warnings I have given you, you are satisfied beyond reasonable doubt as to the truth and accuracy of her evidence."
The direction was part only of that which the High Court said was imperative. The jury was not told why it would be dangerous to convict the applicant without careful scrutiny of the complainant's evidence and was not told to consider the circumstances relevant to the evaluation of that evidence. The jury was not told of the consequences of delay which created the danger and which themselves were relevant to the jury's evaluation of the complainant's evidence. The learned judge told the jury to take into account all relevant circumstances without informing them of the circumstances which the High Court said they were to be told and directed to consider. Unless, in a case where a delay requires a warning to be given, the jury is told why the complainant's evidence is to be scrutinized with great care, the likely effect of the warning is to place complainants in cases of delayed prosecution of sexual offences in an especially untrustworthy class of witnesses. Juries should be equipped with the means of appropriately dealing with and evaluating the consequences of the delay in the circumstances of the case in question. If the jury is told of the reason for the warning, the direction itself is likely to be applied in a more thoughtful, appropriate manner. In my view the direction was not sufficient and the conviction ought not to stand.
The Director of Public Prosecutions relied upon s.61(3) of the Crimes Act 1958, which provides:
"(3) Despite sub-section (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which sub-section (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial."
The Director referred to the speech of the Attorney-General made on the second reading of the Bill which inserted sub-s.(3). At p.30 of Hansard of 9 October 1997 the Attorney-General said:
"... There is a need to legislatively acknowledge that features such as delay in complaint, lack of forensic evidence and lack of other corroborative evidence are common to most sexual assault cases. Judicial comments about such matters should not be made automatically."
Accordingly the new sub-section was introduced.
The Director conceded that there was no tension between s.61(3) and a Longman warning being given by a trial judge in a case where the delay was of a magnitude that prevented proper investigation and defence preparation, for in such a case the warning would be required in order to ensure a fair trial.
A warning that it would be dangerous to convict on the evidence of the complainant alone and that her evidence should be scrutinized with great care is a comment upon the reliability of the evidence given by the complainant. However, in the present case the lapse of some 14 years before the applicant or the authorities could investigate allegations, which set the applicant's conduct in a context that was a fertile field for timely investigation, in my opinion afforded good reason for giving the warning described by the majority in Longman v. The Queen, supra. The warning was not required as an automatic reaction to the presence of some delay; the circumstances of this case required the warning to be given.
In R. v. Miletic [1997] 1 V.R. 593, this Court discussed the directions which a trial judge should give to a jury to avoid a perceptible risk of a miscarriage of justice. In that context the Court said, at p.606:
"In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge. ... Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury."
See also R. v. King, Court of Appeal, unreported, 28 August 1996, at pp.6-7, per Callaway, J.A. The effect of delay on the fairness of the trial due to the way it affects investigation by the authorities and the preparation and conduct of the defence are much more likely to be apparent to a judge than to jurors. In my opinion the warning together with its rationale should have been stated in order to ensure a fair trial.
I turn to the ground that the verdicts were unsafe and unsatisfactory.
Mr. Lasry, Q.C., who appeared with Mr. Allen for the applicant, pointed to a number of aspects of the evidence which he contended led to the conclusion that, even making full allowance for the advantages enjoyed by the jury in seeing and hearing the evidence, the prosecution case raised such doubts that the verdicts of guilty should not stand.
The Crown case depended upon the uncorroborated testimony of the complainant. The evidence was given by a 19 year-old recounting her experience as a child aged 4 or 5 years. A number of matters threw doubt upon the accuracy and credibility of that testimony. In addition to the complainant the Crown called five witnesses, whose evidence has been analysed by the Chief Justice. For the reasons he has given, I am of the opinion that their evidence did not materially advance the Crown case. That case remained one that was wholly dependent upon the accuracy of the complainant's recollection.
There were inconsistencies between earlier statements and evidence of the complainant and her evidence at the trial. The complainant's description developed from her statements as an 11 year-old to her mother that the applicant "had put it out and made her touch it" and to Policewoman Stevens that "someone had walked in on her in the toilet" to her complaint shortly prior to the laying of the charges to Senior Constable Masters of "sexual abuse performed on her when she was 5 till she was 11." At the committal proceedings in November 1997 the complainant could recall only one specific incident on which she had been assaulted by the applicant.
The inconsistent versions of the incident given by the complainant at least up to the committal proceedings may be explained by the diffidence of a child and a natural desire to suppress unpleasant memories. However, the fully developed version of the assaults was not itself inherently probable. The account given by the complainant was unadorned by any detail which might have lent support to the central allegations or made those allegations ring true. According to the complainant the applicant assaulted her six or seven times in a period of two weeks. On each occasion when she visited the applicant's house, he intercepted her, took her to the toilet and assaulted her. The toilet was the only toilet in a house in which the applicant lived with his wife and six children. After each session of assault, the complainant left the house. On none of the occasions did she see the friend she came to visit. Although she said that the assaults caused her a lot of pain, the complainant kept returning to be assaulted again and again.
The jury returned verdicts of not guilty on counts 1 and 4, yet the events on which those counts were based were part of the episodes from which the other counts arose. The complainant could recall little of the circumstances surrounding the alleged assaults. Her principal memory was of pain, which could not have been the product of the assaults of which the applicant was convicted. The complainant was asked whether she clearly remembered the two weeks when the offences were said to have been committed. She replied:
"I can't remember - I just - I just know that I have memory of him doing that and when I was younger I - around about eight - eight to 11 or something, around that age, I remember me thinking that I was in pain when I was younger, somebody did something they shouldn't have, and that's why we went to the Seymour Police when I was 11 when I told my mum. But I can't remember when I was younger, when it actually happened. All I remember that it did and it hurt."
The jury may have been concerned because the evidence as to counts 1 and 4 did not match the crimes with which the applicant was charged, and that was not a matter that reflected upon the credibility of the complainant or the accuracy of her evidence. And, as I have said, I think that there was a rational basis for viewing the complainant's evidence in relation to counts 2, 3, 5 and 6 as more reliable than her evidence in relation to counts 1 and 4. Nevertheless the acquittals combined with the difficulties attending the complainant's evidence overall leave me with doubts which are not resolved by the consideration that the jury had the advantage of seeing and hearing the complainant give her evidence.
In M. v. The Queen (1994) 181 C.L.R. 487, Mason, C.J., Deane, Dawson and Toohey, JJ., at p.494, said that a verdict was to be set aside if it was based on evidence which "contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent man has been convicted...." In Jones v. The Queen, supra, at p.85 Gaudron, McHugh and Gummow, JJ. said "... the test formulated by the majority in M. must now be accepted as the appropriate test for determining whether a verdict is unsafe and unsatisfactory." In my opinion the evidence in the present case meets that description. While paying full regard to the considerations that the jury was the body entrusted with the primary responsibility of determining the applicant's guilt or innocence and that the jury had the benefit of seeing and hearing the witnesses, I do not think that, "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty". M. v. The Queen, supra, at p.493.
I would allow the appeal and order that the convictions be quashed and verdicts of acquittal entered. I would add that in my opinion verdicts of acquittal should be entered even if the appeal were to succeed on ground 4 alone. If the applicant were to be re-tried, the Crown could not lead evidence of the events constituting counts 1 and 4 (R. v. Young [1998] 1 V.R. 402), and in that way the credibility of the account given by the complainant would be artificially enhanced. It was submitted by the Director that evidence relating to those counts could be led as part of the res gestae. However, in my view such a use of the evidence would deny the applicant the full benefit of the acquittals which he has obtained.
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