Hermanus (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0281

MARTIN HERMANUS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	OSBORN, PRIEST and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2015
DATE OF JUDGMENT:	17 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 304
JUDGMENT APPEALED FROM:	R v [Hermanus] (Unreported, County Court of Victoria, Judge Hampel, 14 November 2014 (Conviction); 21 November 2014 (Sentence))

---

CRIMINAL LAW – Appeal – Conviction – Sexual offending against daughter in 1970s – fresh evidence – Whether complainant gave an inconsistent account of offending post-verdict – Cross-examination of complainant – Whether defence counsel prevented from relying on inconsistencies in complainant’s accounts – Previous representations – Whether ‘fresh in the memory’ – Behaviour of victims of sexual offending – Police evidence concerning – Whether admissible – Delay in complaint – Jury direction – Trial judge’s comments concerning victims of sexual offending – Whether judge’s charge unbalanced – Leave to appeal against conviction granted – Appeal dismissed – AC v The Queen (2014) 42 VR 278, R v MM [2007] EWCA Crim 1558 considered.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 9 years’ imprisonment with non-parole period of 6 years – Applicant aged 77 years – Poor health – Delay – Prospects of rehabilitation – Whether sentence manifestly excessive – Appeal allowed – Total effective sentence of 7 years’ imprisonment with non-parole period of 4 years and 6 months substituted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T R Marsh with Ms R S Sleeth	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA:

Introduction

On 14 November 2014 the applicant was convicted by a jury in the County Court of two charges of buggery (charges 3 and 5) and one charge of indecent assault (charge 4).

On 21 November 2014 the applicant was sentenced by the trial judge to six years’ imprisonment on each of the buggery charges and two years’ imprisonment on the charge of indecent assault. Three years of the sentence in respect of charge 5 was ordered to be served cumulatively upon the sentence for charge 3, resulting in a total effective sentence of nine years’ imprisonment. The sentencing judge fixed a non-parole period of six years’ imprisonment.

The applicant now seeks leave to appeal both against conviction and against sentence.

I have had the advantage of reading the reasons of Priest JA in draft.

I agree with his Honour for the reasons which he gives that proposed grounds 1, 2, 3 and 4 of appeal against conviction must fail.

Proposed ground 5 relates to a direction given and comments made by the trial judge with respect to delay in complaint by the victim of alleged sexual offences.

Despite some misgivings as to aspects of her Honour’s directions, I have come to the view that proposed ground 5 must also fail. It follows that the applicant’s application for leave to appeal against sentence must in turn be considered. In my view, that application should be granted and the appeal against sentence upheld.

My reasons for these conclusions are as follows.

Background facts

The alleged offences were committed against the applicant’s only child, a daughter born in November 1967, who was at the relevant times 7 to 8 years old.

The Crown case was that the applicant and his wife worked as tram conductors and the applicant assaulted his daughter when his wife was absent. In the first instance, he anally penetrated her against her will. The sentencing judge described the offending as follows (charge 3):

[SE’s] evidence, of which the jury must have been satisfied beyond reasonable doubt, is that you took her to your bedroom one evening in 1975 or 1976, when your wife was still at work and she was in your sole care, undressed her and anally penetrated her. She screamed, because it hurt so much, and you hushed her, and persisted. She said she blacked out for a time from the pain. When you finished, you packed tissues between her cheeks, and made her have a shower. Later, when she went to the toilet, she saw blood on the toilet paper she wiped herself with. She was too scared and confused to tell her mother when she came home that night.[2]

[2]DPP v Hermanus (a pseudonym) (Unreported, County Court of Victoria, Judge Hampel, 21 November 2014) [3].

Approximately two days later, the applicant further assaulted his daughter by rubbing Vaseline on her anal area (charge 4) and again anally penetrating her against her will (charge 5). The sentencing judge described the offending as follows:

Those remaining charges concern a further act of anal penetration occurring two days later, again when [SE] was in your sole care after school and before her mother came home from work. On this occasion, as you took her to the bedroom she protested and tried to resist. You told her it would not hurt. You rubbed Vaseline on your penis, and on her cheeks and anus, and again penetrated her. Again, it hurt, and again she cried out. You covered her mouth and continued. It is the rubbing of the Vaseline on [SE’s] anus that constitutes the charge of indecent assault.[3]

[3]Ibid [5].

Evidence was given of complaint by SE including complaint to her cousin, MP, in 1980; an aunt, MH, when SE was 16 or 17; an aunt, GDW, in 1983 or 1984; SE’s boyfriend, RB, in 1984; SE’s mother, MM, in 1986; and a police officer in 2006. In a record of interview conducted in 2012, the applicant denied the allegations made by SE. No evidence was led by the defence at trial.

The statutory requirements

Section 61 of the Crimes Act 1958 provided at the time of the trial as follows:

(1)On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence—
(a)the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and
(b)if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge—
(i)must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it; and
(ii)must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning; and
(iii)must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.

(1A)If the judge, on the application of the accused in a proceeding to which subsection (1) applies, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of the delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must, in any terms that the judge considers appropriate having regard to the circumstances of the case—
(a)inform the jury of the nature of the forensic disadvantage suffered by the accused; and
(b)instruct the jury to take that disadvantage into consideration.

(1B)Despite subsection (1A), a judge must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.
(1C)For the purposes of subsection (1A), the passage of time alone is not to be taken to cause a significant forensic disadvantage.
(1D)Nothing in subsection (1A) requires a judge to give a warning referred to in that subsection if there is no reason to do so in the particular proceeding.
(1E)A judge must not give a warning referred to in subsection (1A) or a warning to the effect of a warning referred to in subsection (1A) except in accordance with this section and any rule of law to the contrary is hereby abrogated.
(1F)Nothing in subsections (1A) to (1E) affects the power of a judge to give any other warning to, or to otherwise inform, the jury.
(2)Nothing in subsection (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.
(3)Despite subsection (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which subsection (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial.

Two threshold issues arise with respect to this section in the present context:

(a) should the judge exemplify the required direction under s 61(1)(b)(i); and

(b) to what extent and in what manner may the judge amplify a s 61(1)(b)(i) direction by comment pursuant to s 61(2)?

In R v ERJ, Redlich JA said:

A delay in the making of a complaint may adversely affect the credit of a complainant, where that delay is inconsistent with the complainant’s account. But the mere fact of delay between the alleged offence and the complaint will not necessarily be such as to permit reasoning that the complainant’s credit is affected. It is the nature of the delay in the overall circumstances of the case, which is critical. In cases involving sexual offences, where the issue of delay is raised before the jury, s 61(1)(b)(i) of the Crimes Act 1958 (Vic) requires the trial judge to inform the jury ‘that there might be good reasons’ why a complainant may delay in the making [of] a complaint. These reasons will be relevant to the jury’s assessment of the significance of the delay. The reasons to which the trial judge should refer are not to be confined to any explanation that the complainant may advance for any delay (emphasis added).
…

In cases involving sexual offences, victims may delay in making a complaint about the abuse. The offender will often be a trusted family figure or one upon whom the victim is emotionally dependent. Even where the victim has had some other sexual experience, they may view their relationship with the offender as special. Commonly the victim will have no reference standards with which to judge their experiences apart from those supplied by the offender. Hence the complaint may be delayed for reasons which may include a conviction that there is nothing wrong with or abnormal about the acts. There may be other reasons for delay. The victim may be sworn to secrecy. There may be compulsion to secrecy by threats. There may be imposed or misplaced feelings of responsibility for the acts. The victim may fear family dissolution or punishment of the wrongdoer. There may be misplaced guilt or self blame. And the victim may employ various strategies to cope with the abuse such as repression of the acts so that conscious knowledge of them is concealed, suppression of the acts to avoid conscious recall of the events or even psychological disassociation from the acts.[4] Any of these factors may contribute to delay in making complaint or a delayed conscious recognition that the conduct was wrongful. These are not necessarily explanations that the complainant will articulate in evidence. But the trial judge, in conformity with the statutory obligation should at least draw attention to some of those explanations which in the circumstances of the particular case may be relevant (emphasis added). We must take such possibilities into account in assessing the submission that the verdict is unreasonable or unsafe.[5]

[4]Dr Ben Mathews, ‘Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice’ (2003) 11 Torts Law Journal 218, 1.1; Leanne Bunney, ‘Limitations of Actions: Effects on Child Sexual Abuse Survivors in Queensland’ (1998) 18 Queensland Lawyer 128, 131; Julia Werren, ‘Civil Litigation and Repressed Memory Syndrome: How Does Forgetting Impact on Child Sexual Abuse Cases?’ (2007) 15 Tort Law Review 43, 44.

[5]R v ERJ (2010) 200 A Crim R 270, 279–280 [49], [51] (citation in original).

Whilst this statement was made in the context of an appeal on the grounds that a verdict was unreasonable or unsafe, the views expressed by his Honour were endorsed in AC v The Queen.[6] In particular, in that case it was accepted that:

(c) a trial judge should exemplify the direction required by s 61(1)(b)(i) for a jury; and

(d) in an appropriate case the direction may be amplified by comments pursuant to s 61(2).[7]

[6](2014) 42 VR 278 (‘AC’).

[7]Ibid 287–9 [70]–[78].

No submission was made on the hearing of this appeal that AC was incorrectly decided.

It may also be accepted that:

(e) the reasons for delay to which the judge should refer are not necessarily to be confined to any explanation that the complainant may have advanced for delay in the particular case; and

(f) the trial judge should at least draw attention to some of those explanations which in the circumstances of the particular case may be relevant.

A broadly analogous obligation to that imposed by s 61(1)(b)(i) arises under the Jury Directions Act 2015 when a judge gives a direction pursuant to s 21 in relation to evidence of incriminating conduct. Section 22 of the Jury Directions Act provides that defence counsel may request that the trial judge direct the jury that —

(a)there are all sorts of reasons why a person might behave in a way that makes the person look guilty;

This provision reflects the common law requirement that an element of the directions given with respect to lies alleged to be evidence of consciousness of guilt should be an instruction that there may be reasons for the telling of a lie apart from the realisation of guilt.

In R v Ciantar, this Court said:

Consistently with Edwards, the judge should direct the jury that there may be many reasons for post-offence conduct apart from consciousness of guilt. For example, it may be the result of panic or fear, or a wish to escape an unjust accusation, or because of guilt of some other lesser criminal offence or moral wrongdoing falling short of criminal behaviour, or to protect some other person or to avoid a consequence extraneous to the offence, and of course the judge should direct the jury on any explanations suggested by the defence.[8]

[8](2006) 16 VR 26, 52 [86].

In each case, what is contemplated is that the judge should exemplify the instruction that what is said or is not said by a particular person in respect of alleged offending may be susceptible of a number of explanations.

Once it is accepted that the judge should exemplify the reasons for delay in complaint which might be relevant in a particular case when giving a direction in accordance with s 61(1)(b)(i), then the question arises as to how far a judge should additionally go by way of comment under s 61(2).

The terms of s 61(2) make clear that any comment must bear on the evidence in the case. It must also be appropriate in the interests of justice.

A comment which amplifies an instruction pursuant to s 61(1)(b)(i) that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it may meet both these requirements. Such a comment will be a comment on evidence in the proceeding if it bears on the jury’s assessment of evidence of delay in the making of complaint in the particular case. It is a comment upon the context in which the jury may assess that evidence as a matter of general behavioural experience.

The comment may also be appropriate in the interests of justice in order to amplify the instruction under s 61(1)(b)(i) and relate that instruction to the jury’s general experience of life.

More particularly, a trial judge may form the view that a ritual incantation of the words of s 61(1)(b)(i) coupled with a cursory exemplification of possible reasons for delay in complaint is not sufficient to give effect to the intention of the section.

Nevertheless, as s 61(3) makes clear, such a comment should not ordinarily descend to directly addressing the reliability of the complainant’s evidence in the case.

Moreover, a comment under s 61(2) must be no more than a comment. It must not be a direction. In R v Boykovski and Atanasovski, Crockett and Teague JJ said:

His Honour was, of course, free to make such comments as he thought it was proper for him to make. Moreover, it was within the rightful exercise of his judicial authority to offer to the jury comments that might be very strongly critical of the applicants or their defence. However, he may only exercise such authority provided that he makes it perfectly clear to the jury that they are the judges of the facts and, accordingly, that they are free to accept or reject his comments as they saw fit.[9] Unfortunately his Honour gave no such instruction to the jury.[10]

[9]See the remarks of the Court in Kerr (No 2) [1951] VLR 239, 247.

[10](1991) 58 A Crim R 436, 443 (citation in original).

As the above statement indicates, a comment may be strong but it should only be made for the purpose of fulfilling the judge’s overall obligations. In RPS v The Queen, Gaudron ACJ, Gummow, Kirby and Hayne JJ said:

But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.[11]

[11](2000) 199 CLR 620, 637 [42] (emphasis in original) (citation omitted).

A comment should not be given in terms which overawe the jury by cloaking a statement of fact with judicial authority or expressing it as an incontrovertible factual proposition. In B v The Queen, Brennan J said:[12]

A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived ‘of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence’. I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg v Hulse:
[T]o use the words of the Privy Council in Broadhurst’s Case, there is a danger of the jury being overawed by the judge’s views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views.

[12](1992) 175 CLR 599, 605–6 (citations omitted).

Further, the judge should not purport to give expert evidence or refer to academic literature bearing on a factual issue.[13]
[13]CMG v The Queen [2011] VSCA 416 [13].

On the other hand, a judge may make comments in terms which make clear that the comment is directed to identifying reasonable possibilities as a matter of general human experience. In AC, the decision of the Court of Appeal of England and Wales in R vMM[14] was cited as exemplifying the way in which a judge might make clear that such comments were based on general human experience by reference to the passage emphasised below.

You are entitled to consider why these matters did not come to light sooner. The defence say it is because they are not true. The allegations are fabricated. Had they been true, they say, you would have expected a complaint to be made earlier and certainly when the defendant was out of the way. The prosecution say it that it is not as simple as that. When children are abused … they are often confused about what is happening to them and why it is happening. They are children. That is something which you should have in the forefront of your minds when considering this. They might have some inkling that what is going on is wrong. Sometimes children even blame themselves when there is obviously no need for them to do so. A child can be inhibited for a variety of reasons from speaking out. They might be fearful that they may not be believed, a child’s word against a mature adult, or they might be scared of the consequences, or fearful of the effect upon relationships which they have come to know. The difficulties, you may think, are compounded in the family situation where they involve a family member for whom the feelings of the child may be ambivalent. The child may not like the abuse but there may be aspects of the abuser that causes the child to view them with some degree of affection. The fallout from disclosures can be unpredictable and sometimes calamitous. So, if a child or children are abused, they are often subject to very mixed emotions, and that can be the case particularly where there is an imposing adult in the household of whom they are perhaps afraid and who has overborne them and has power over them and warned them if they tell.
Whether any of that applies here is a matter for you. Equally, there are sometimes in lives, sometimes earlier, sometimes later, when there is a trigger, or the need arises, to disclose, speak out. No easy thing to do, you may think, and it takes some courage to do so.
Ladies and gentlemen, I make clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether you find that there is a reason for the delay here, and of course it also affects the honesty and the truthfulness of the two girls.[15]

[14][2007] EWCA Crim 1558 (‘MM’).

[15]Ibid [14], as cited in AC (2014) 42 VR 278, 288–9 [78] (emphasis added in AC).

In AC the trial judge had made comments to the jury which were expressed to be ‘the experience of judges’. The Court held that this was inappropriate. The proper course is to express any comment on patterns of behaviour in terms which make clear that the comment is directed to identifying reasonable possibilities as a matter of general human experience.

Nevertheless, whilst the passage from MM[16] emphasised in AC exemplifies the manner in which a comment may be expressed in a way which makes clear that it is for the jury to assess behavioural possibilities from their own experience and knowledge of life, the passage quoted from MM as a whole is not a template for compliance with s 61(1)(b) or (2).
[16][2007] EWCA Crim 1558.

The passage commences with, and flows from, a summary of the submissions of the defence and prosecution in that case. Moreover, it was formulated in the absence of the s 61 framework. This said, it demonstrates, in part, comments of the sort which might be given to amplify the direction required by s 61(1)(b)(i). These matters echo the sorts of considerations identified in R v ERJ.[17]
[17](2010) 200 A Crim R 270.

Ultimately, what is appropriate in a particular case will be governed by the circumstances of that case. Accordingly, it is necessary to set out relatively fully the context of the judge’s direction and comments.

The context of the direction and comments

In the present case, the credibility of the complainant was central to the prosecution case. At the outset of her charge, the trial judge identified this issue and the principal matters that both the prosecution and defence relied on in respect of it. Her Honour summarised the prosecution case as follows:

The prosecution argues that [SE] is a truthful and reliable witness in respect of these five acts the subject of the five charges. Although the acts themselves occurred nearly 40 years ago, [the prosecutor] argued you should accept that what [SE] said, or what she was doing when she gave evidence in the recording that you saw, was giving a genuine and truthful account of lived experiences, experiences which have affected her throughout her life since then.
Whilst she may not have been able to recount some of the surrounding circumstances in the same detail in her statement and in her oral evidence, the recorded evidence that was played to you, the prosecution argues that her evidence in respect to the central features of the incident was consistent between the statement and her oral evidence.
[The prosecutor] argued that it was not surprising that somebody recounting such traumatic events in the formality of the courtroom setting that [SE] was in — from those rooms you could see in the remote witness area beamed through to here — that it is not surprising that recounting such traumatic events in the formality of the court proceeding in that room and with the question–answer format that is required in a court proceeding that she might not be able to bring to mind all the detail or the level of detail that she gave when she was sitting in the police station making her statement to the SOCIT, the Sex Offence and Child Investigation Team detective back in 2008 and when, as she described it, she was when making the statement ‘reliving the events’ in order to recount them and put them in the statement.
[The prosecutor] argues that having seen and heard [SE], you should accept her evidence that what she put in her statement was truthful, the result of the reliving [of] the experiences when making the statement and that you should accept that her evidence given in the trial on these essential features of the acts themselves was consistent, reliable and truthful, that you should regard any differences between the detail in the statement and the detail — or the lack of detail in the oral evidence, the recorded evidence that you saw should be regarded by you as differences in peripheral detail or minor features more consistent with somebody telling the truth of a lived experience that happened a long time ago than a liar recounting a recently made-up story and getting detail wrong because they cannot remember exactly what detail they embellished the lie with.
The prosecution also argues that [SE] has acted in a manner consistent with the way you might expect, if you think about it, a person who was sexually abused by her father from the age of eight through to 16 or 17 would act and that her conduct has been consistent with somebody struggling to have to relive the experience in order to recount it. So it is not surprising, [the prosecutor] argues, that [SE], like so many children sexually abused by a trusted adult from a very young age, did not immediately disclose to her mother or to anybody else what had happened.
It is not surprising when you think about what we know these days about children who are sexually abused and the time and the manner in which they make disclosures that her conduct in various times over her life, making disclosures to people — first, a cousin not much younger than her; next, to trusted people, her first boyfriend, trusted and loved aunts; and, later, in response to a direct question initially from her mother and later again in a conversation with her mother — made the disclosures and the level of disclosure that she did.
It is not surprising, the prosecution argues, that, like so many adult victims of child sexual abuse, [SE] is truthful and you should find that her conduct is in part consistent with finding the process of making a report to the police and deciding to do it and then going through with it a difficult one and a process that, not surprisingly, was something she needed to wait until she was at a time in her life when she felt strong enough to follow it through. There were other arguments that [the prosecutor] put to you, but I think I have summarised or encapsulated the main ones of them.[18]

[18]Emphasis added.

It can be seen that a central thrust of the prosecution case as to SE’s credibility was that it was not surprising that SE did not immediately disclose to her mother or others that she had been sexually abused.

Her Honour then summarised the defence case as to the credibility of SE as follows:

The defence on the other hand argues unapologetically that [SE] is a manipulative liar, that she is a person with a demonstrated history of dishonesty in her adult life as revealed by the convictions that you heard about: The social security convictions, the making of false statement to police or a false report to the police and the dishonesty offence relating to the pawning of the stolen gold bracelet; that not only is she shown by those incidents to be a dishonest person, a liar, but the defence argues that [SE’s] conduct, her history of making complaints about her father that you have heard about in the trial, is conduct that shows a pattern of making false allegations that her father has abused her. And then not being prepared to follow through with it, making the false allegations at times when she had a need that she thought it suited: either to get herself out of trouble or to get even with her mother, who she perceived to be a domineering force in her life and somebody who was trying to alienate her from and take her children from her.
[Defence counsel] argued that the [account] given by [SE] is one that is in itself so implausible that it could not be true and that, when you think about what [SE] says happened and the way she said it happened — not just in respect of the first incident, the first three charges, or the second incident a couple of days later, the last two charges, but her description of what happened thereafter — that it just could not have happened that way, that the very description she gives of it beggars belief, beggars a rational understanding of what could happen.
The defence also argues that [SE’s] account is riddled with inconsistencies, that there were many and significant differences between the account that she gave you in her evidence, the recorded evidence that you watched, and in the written statement that was made in 2008 and then adopted and incorporated without change into the 2012 statement; that when you analyse carefully what [SE] said in evidence, compare it with what is in the statement, that there are so many contractions, inconsistencies, things left out of the oral evidence account that were put in the written statement, some things added into the oral evidence account that were not in the written statement, that the defence argues that shows that the number and nature of the differences is such that you could not be satisfied that she was a truthful witness generally or specifically in respect of the five specific acts the subject of the charges.
The defence also argued in addition to all of those differences, those inconsistencies in those two accounts given by [SE], that the reason for that — not only does it give you no confidence in her truthfulness or reliability but it demonstrates, says the defence — demonstrates that she is a liar. Because a truthful person would not have that amount of inconsistency, that amount of deviation between the two accounts.
A liar would not — or a truthful person would not have such a difference in memory between the recounting of the events in 2008 or the adopting of them in 2012 and the giving of oral evidence in 2014. In other words, the amount of detail that was able to be recounted in 2008 adopted in 2012 should be pretty much the same as the amount of detail that could be brought back to mind in 2014. That is the way the defence argued that.
Therefore you can have a greater degree of confidence that this is the hallmark of a liar, that somebody has given a well embellished false account, but in a relatively short space of time, cannot remember all of the detail and that demonstrates it is a false account. That is what [defence counsel] argued and [defence counsel] argued very strongly that [SE] was motivated by an intense hatred of her mother as demonstrated by her demeanour on the recorded evidence that you saw and a desire to punish her mother or to get even with her mother by making these false allegations of such a serious nature against her father.[19]

[19]Emphasis added.

It can be seen that the defence case relied on the history of SE’s complaints not simply as involving some delay but as incidentally demonstrating a pattern of false allegations. It pointed to delay in complaint as one of a series of interrelated circumstances bearing on the complainant’s credibility.

The judge returned to the significance of delay in complaint as a central element of her charge. In so doing, she first further elaborated the defence case:

The next aspect of this I want to deal with is not the fact of disclosure, the timing of it or the content of it but the delay in disclosure. You have to consider whether the delay in disclosure — that is the not making immediate disclosure or complaint, not saying anything until later — affects your assessment of [SE’s] truthfulness or reliability. Is the delay in making disclosure inconsistent with the way you would have expected a child in [SE’s] circumstances to act if what she says happened to her did in fact happen?
The defence has argued that these matters did not come to light until [SE] was in her late teens and intermittently resurfaced after that. And the reason that nothing was said until [SE] was in her late teens and it only intermittently surfaced after that was because they were false allegations, that she was making things up, that she has, throughout her life, engaged in a pattern of bringing out false allegations against her father, either to get herself out of trouble or to get even for perceived or real wrongs done to her by her mother.
Had the accused done to [SE] what she says in her evidence to you he did, the defence argues, you would have expected her to tell someone straight away, to tell her mother when she came home that night or after the second occasion; to tell [RM], the babysitter; to tell a friend at school or a teacher at school.
Even if you might accept that a child may not make a disclosure or may make a disclosure which isn’t believed or acted on at the time, the defence argues you would not have expected if what [SE] says had happened really did happen, you would not have expected her to maintain the sort of relationship she did with her father, to have that level of dependency, of calling him when she was in trouble, of moving back home with the parents, of allowing her father to have the contact with her children that she did.[20]

[20]Emphasis added.

Her Honour then summarised the prosecution arguments:

The prosecution argues though it is not as simple as that. Children when they are abused are often confused about what has happened to them or what is happening to them, and why it is happening. They fear the consequences of telling, that they will not be believed, or that they will be blamed, that they are the ones at fault. They may fear the consequences for the rest of the family. They may feel powerless or alone.
The prosecution reminded you that [SE] was a child, only eight on her account, when this started. Not a mature, independent adult with the experience of life that brings, the confidence that if you say something people might believe you, and the knowledge about where to go and what to do. And the prosecution argues [SE’s] response must be considered in that light.
If you accept the evidence of [SE] and [MP] about the disclosure in Canberra and the response of [MM] that they said, the brushing under the carpet, this would provide, you might think, some support for the argument that at a relatively early stage, and to someone who she thought she could trust, [SE] did make a disclosure — a limited disclosure, but a disclosure — but she was not believed when it was taken to someone in authority, a responsible adult.

Her Honour then gave a s 61(1)(b)(i) direction as follows:

When considering the arguments and counterarguments that have been put to you by counsel about the significance of delay in reporting [SE’s] credibility, you must bear in mind that there may be good reason why a victim of sexual assault may delay in complaining about it, and that may be particularly so where the sexual assault is against a child and where the perpetrator is a trusted family member, an adult. And that is something that you should have at the forefront of your minds when considering the evidence of delay and disclosure, and the pattern of disclosure.

The phrase ‘that is something that you should have at the forefront of your minds’ appears to have been taken from the direction in MM.[21] It is not entirely clear from that decision whether that proposition constituted part of the summary of the prosecution submission in that case or originated from the judge but I take it to be the former. In any event, it is not for the judge to direct a jury as to what matters of fact they should or should not keep at the front of their minds in a particular case.
[21][2007] EWCA Crim 1558.

Nevertheless, no specific objection is taken to this statement in the proposed grounds of appeal. The focus of argument is the comments in the judge’s charge which then followed:

What I have said about delay and the pattern of disclosure, apart from when I have been summarising counsel’s arguments, what I have said so far has been directions of law. What I am about to say to you now — and directions of law, as you know, I have told you, are binding on you, you must apply them.
What I am going to do now is make some observations or suggestions which I am going to suggest to you as a matter of common sense, and applying your experience of life, you may want to consider when deciding in this case whether there was good reason for delay and whether that delay affects your assessment of [SE’s] credibility. So this is comment of mine which you can accept or reject, this part I am just about to deliver, so it stands in contrast to the directions I have given you to date.
You might think, members of the jury, drawing on your own experience of life, your knowledge of life, your knowledge of children and their relationship with adults, and maybe the knowledge that you have picked up in more recent years, as there has been so much more publicity about adults coming out and making disclosure of sexual offences that happened when they were children and at the hands of people under whose care or authority they were, whether family members, teachers, members of the clergy or the like. So think about your knowledge of life, your experience and the learning that the community generally has been developing about these matters in recent years.

A child who has been sexually abused, you might think, members of the jury, might have some inkling that what is happening is wrong, or might have an awareness that it is wrong. Children can blame themselves when, to an adult looking at it objectively, you might think there is absolutely no reason for them doing so. Children can be, you might think, inhibited for a variety of reasons from speaking out. Their youth and innocence may mean that they may not fully appreciate that what is happening is wrong, or that they can say no, or that they can tell someone about it.
Children might just think this is what happens to children in families, this is what they have to live with and put up with. You might think that children will think that they have to do what an adult, particularly a parent or a trusted family member who has authority over them, tells them to do. You might think that children could be embarrassed or shy or afraid, that they may fear that they may not be believed, a child's word against an adult’s.
Children might be scared of the consequences, fearful, you might think, of the effect on relationships that they have come to know, or the only relationships they have. Those feelings may, you might think, be compounded in a family situation where they involve a family member for whom the child’s feelings may be ambivalent. The child may not like the abuse, but there may be aspects of the abuse or of the abuser that causes the child to view them with some degree of affection. The fallout from disclosures can be unpredictable, at times calamitous.
And so a child, if a child is abused, you may think that some of them can be subject to mixed emotions, particularly where the abuser is an adult in the family circle or someone to whom they and other family members feel a sense of love, affection or submission to authority for.
Equally, you might think, again drawing on your experience of life, that there are some times in people’s lives, sometimes earlier, sometimes later, where there is a trigger or a need arises to disclose or to speak out. No easy thing to do, you may think, and you may think that it takes a lot of courage to do so, and a lot of emotional strength to follow it through.
Whether any of that applies here in the circumstances of this case, members of the jury, is a matter for you. I have said these things not by way of direction but as things which, in common sense, and with knowledge of the world, you might like to consider in assessing whether you find that there is a reason for delay here and whether that affects your assessment of [SE’s] honesty and reliability.

The proposed ground of appeal

Proposed ground 5 of appeal is as follows:

The learned trial judge erred in charging the jury by:
(a)Failing to make it clear that her observations about why a complainant might delay complaining of sexual abuse were general in nature and not specifically referrable to the applicant’s case.
(b)Putting as arguments advanced by the prosecution, matters relating to the explanation for delay in complaining which had not previously been asserted in the trial.
(c)Inviting the jury to have regard to recent public discussion about child sexual abuse to inform their assessment of the impact on the complainant’s credibility of the delay in complaining.

The general nature of the judge’s observations

It is submitted that the judge should have made clear that her comments were general in nature and not specifically referrable to the applicant’s case. This submission should be rejected. The judge should not have made the comment at all unless it was helpful in understanding the possibilities in the present case. The comments bore on the kinds of probabilities affecting the possible behavioural reactions of a seven to eight year old girl who was sexually abused by her father up until the age of 16.

On the other hand, it was necessary for the judge to make clear (as she did) that she was speaking of general patterns of behaviour and that the relevance of the possibilities identified to the overall credibility of the complainant’s evidence was entirely a matter for the jury to evaluate.

The summary of the prosecution arguments

It is submitted that the judge unfairly presented as prosecution arguments matters which the defence had no opportunity to address. No specific matter is identified. I am not persuaded that the judge’s summary of the prosecution arguments was materially inaccurate. I also note that no exception was taken to the charge on this basis.

The reference to public discussion

It would have been better if no reference had been made to ‘teachers, members of the clergy or the like’. This was not a case involving abuses of institutional power relationships like those just mentioned, but of the distressingly not uncommon sexual abuse of a child by a family member. Nevertheless, the statement complained of was immediately followed by the additional statement:

So you think about your knowledge of life, your experience and the learning that the community generally has been developing about these matters in recent years.

There was nothing improper in directing the jury in these terms. Again, no exception was taken to this aspect of the charge.

Cumulative impact

Although the point was not identified in the detailed proposed grounds of appeal, a central thrust of the applicant’s argument on the hearing of the leave application was that the judge’s comments were unbalanced and unduly emotive and, in consequence, unfairly favoured the prosecution.

When the judge’s direction is considered as a whole, I am not persuaded that this complaint is made out. Nor am I persuaded that the judge’s comments were unfair.

First, the defence position as to the complaint history was emphasised and made clear both at the outset of the charge and, more particularly, in the summary of positions immediately prior to the comments in issue.

Secondly, the judge emphasised that her comments were comments. She made very clear that her comments were to be evaluated by the jury in light of their knowledge of the world and experience of life.

Thirdly, the use of the repeated phrase ‘you might think’ in this context emphasised that what was at issue was a question of possible explanations for the delay in complaint.

Fourthly, I do not accept that the comments involved unduly emotive language. A judge is entitled to make comments in strong language provided that they are relevant and are not unbalanced.

Fifthly, none of the matters which were the subject of comment can realistically have taken the applicant’s counsel by surprise. Prior to commencing the charge the judge had indicated her intention to adopt the course approved in AC[22] and make comments to the jury. Moreover, none of the comments is said to be substantially untrue as a matter of possible patterns of human behaviour.
[22](2014) 42 VR 278.

Sixthly, the only challenge to this part of the charge by way of exception was the submission that the judge should make it clearer that the comments made by her were only directed to identifying reasonable possibilities as a matter of general human experience which gave rise to issues for the jury to consider and did not indicate any view the judge had of the facts of the case. No exception was taken to allegedly emotive language or the overall balance of the charge. Defence counsel plainly did not perceive that there were problems in this regard. Indeed, defence counsel stated:

Your Honour, my only exception to that is not what was said on the topic or the manner in which it was said …

Seventhly, the comments gave direct effect to the purpose of s 61(1)(b)(i) by amplifying the direction given pursuant to it. As such they may be regarded as appropriate in the interests of justice as s 61(2) requires.

Conclusion on the appeal against conviction

For the above reasons, proposed ground 5 is not made out. I am not persuaded that the judge’s comments were inappropriate in the interests of justice. Nevertheless, the questions raised are not free from difficulty. I would grant leave to appeal against conviction on proposed ground 5 but dismiss the appeal.

The appeal against sentence

The applicant was sentenced on 21 November 2014 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
3.	Buggery with a person under 14 (s 68(1) of the Crimes Act 1958, as in operation between 1/4/59 and 28/02/81)	20 years	6 years	Base sentence
5.	Buggery with a person under 14 (s 68(1) of the Crimes Act 1958, as in operation between 1/4/59 and 28/02/81)	20 years	6 years	3 years
4.	Indecent assault of a girl under 16 (s 55(1) of the Crimes Act 1958, as in operation between 1/4/59 and 28/02/81)	5 years	2 years	—
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		6 years’ imprisonment
*Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		7 days
Other relevant orders: S464ZF Forensic Sample Order; The applicant was sentenced as a serious sexual offender on charge 5; Reporting under Sex Offenders Registration Act 2004 – Life

The sentencing judge accepted that charges 4 and 5 should, for sentencing purposes, be treated as a single episode, culminating in the act of anal penetration.[23]
[23]Ibid [6].

The judge found that the applicant’s offending did not constitute isolated and never repeated acts. Similar abuse continued until SE was 16 or 17.

The sentencing judge took into account the following aspects of the applicant’s personal circumstances. The applicant had no prior convictions. The offending occurred nearly 40 years before the date of sentence. The applicant was 76 years of age. The applicant was facing imprisonment for the first time in his life. The applicant had a long history of stable employment prior to his retirement. The applicant was resident in an aged persons’ hostel prior to his conviction but retained the support of members of his family. The applicant had some health problems including diabetes, high cholesterol and arthritis.

The judge dealt with the question of rehabilitation as follows:

Your denial of the offences, and the conduct of your defence, alleging your daughter SE, your only child, was a malevolent liar, motivated by a desire to get out of trouble, or hatred of her mother or for some other unknown reasons, to make base allegations against you, and being prepared to collude with her cousin, …, to fabricate a complaint, your trawling over her unfortunate history as an adult, her dishonesty offences, her history of poor choices in relationships, her history of difficulty in mothering and having her children removed from her care, indicates you have no remorse and no insight. That does not, in my view, bode well for your prospects for rehabilitation. Counterbalanced against those factors that count against your prospects for rehabilitation are your age, and the limited opportunities you will have on release for unsupervised access to children. Nonetheless I consider your prospects for rehabilitation should properly be regarded as poor.[24]

[24]DPP v Hermanus (a Pseudonym) (Unreported, County Court of Victoria, Judge Hampel, 21 November 2014) [28].

The judge took into account as a general factual proposition that the sentence that would have been imposed for the offending conduct 40 years ago would have been lighter than that which would now ordinarily be imposed.

The judge also took into account current sentencing practices relating to incest.

She identified denunciation, general deterrence and just punishment as significant sentencing considerations and noted that the applicant came to be sentenced for charge 5 as a serious sexual offender. She accepted that there was no need to impose a disproportionate sentence in order to achieve the purpose of protection of the community. The principles of totality and proportionality required that there only be partial cumulation of the penalty for charge 5 upon that imposed for charge 3.

The proposed grounds of appeal against sentence are as follows:

Ground 1:      The sentence is manifestly excessive in light of:
a.        The age of the offences.
b.        The age of the applicant.
c.        Relevant sentencing practices.

Ground 2:The learned sentencing judge erred in her assessment of the prospects of the applicant’s rehabilitation, thereby erroneously omitting to give any or any sufficient weight to this factor in the imposition of the head sentence and the non-parole period. Particulars of that ground are stated as follows:
a.        The applicant is 76 years old.
b.        The offending occurred about 40 [years ago].
c.        The last uncharged act was over 30 years ago.
d.Based on the applicant’s denials alone, the learned sentencing judge deemed his rehabilitation prospects as poor.[25]

[25]Applicant’s notice of application for leave to appeal against sentence dated 19 December 2014.

The applicant submits that it can be inferred that the judge failed to give adequate weight to the following critical matters:

(g) the applicant’s advanced age and health conditions will make imprisonment more onerous and may mean that he has in effect received a life sentence;

(h) the evidence that the applicant has, apart from this sexual offending, otherwise lived a life of good character over a long period including a long working life; and

(i) the fact that, given the applicant’s age and the length of time since his offending, there is no need for specific deterrence and his rehabilitation should be viewed as advanced or complete.

In my view, despite the significant objective gravity of the applicant’s offending and the obvious need for its denunciation and just punishment; and notwithstanding the lack of remorse on the applicant’s part, the sentence imposed was manifestly excessive having regard to the applicant’s age, lack of prior convictions and good work history, health conditions and low risk of reoffending. Whilst I do not accept the applicant’s submission that his rehabilitation should be

regarded as advanced or complete, the reality is that he will be released from imprisonment at an age when the likelihood of reoffending is minimal. Moreover, I accept that the applicant’s age and health conditions are significant because they bear on the likelihood that imprisonment will be particularly burdensome for him.

Accordingly, leave to appeal against sentence should also be granted. I would resentence the applicant to five years’ imprisonment on charge 3, five years’ imprisonment on charge 5 and two years’ imprisonment on charge 4. I would direct that two years of the sentence on charge 5 be cumulated on the sentence imposed on charge 3, resulting in a total effective sentence of seven years’ imprisonment. I would fix a non-parole period of four and a half years.

PRIEST JA:

Conviction, sentence and grounds of appeal

An indictment was filed in the County Court charging the applicant with three charges of indecent assault[26] (charges 1, 2 and 4) and two charges of buggery[27] (charges 3 and 5). Each charge related to the applicant’s biological daughter, SE, and was alleged to have occurred ‘between the 1^st day of January 1975 and the 31^st day of December 1975’.
[26]Crimes Act 1958, s 55(1). The maximum penalty was five years’ imprisonment.
[27]Crimes Act 1958, s 68(1). The maximum penalty was 20 years’ imprisonment.

On 14 November 2014, following a five day trial, a jury acquitted the applicant of two charges of indecent assault (charges 1 and 2), but convicted him of a further charge of indecent assault (charge 4) and two charges of buggery (charges 3 and 5). Following a plea in mitigation, on 21 November 2014 the trial judge sentenced the applicant to be imprisoned for six years on each charge of buggery, and for two years on the charge of indecent assault. Three years of the sentence on charge 5 was ordered to be served cumulatively with the sentence on charge 3, leading to a total effective sentence of nine years’ imprisonment, upon which a non-

parole period of six years’ imprisonment was fixed.

The applicant sought leave to appeal against both conviction and sentence.

As to conviction, the applicant relied on the following grounds:

1. In light of fresh evidence which has the capacity to affect substantially the credibility of the complainant, the applicant’s convictions should be quashed and a new trial ordered.
Particulars of fresh evidence:
a.MP gave evidence at the subsequent trial of the applicant for offences against herself, that she and SE (the present complainant) had discussed in recent times a complaint against the applicant which MP said SE made when she was about 12 years old. SE told MP she could not remember making such a complaint. This contradicts the evidence SE gave at trial.
b.In her Victim Impact Statement tendered after the applicant was convicted in this matter SE alleged that acts of anal penetration were committed on her in the morning before school as well as after school. The allegations at trial were that she was anally raped by the applicant 3–5 times per week from the age of 8 to 16 years old. This abuse was said to occur after school while her mother was at work.

2.   The learned trial judge erred in preventing the applicant’s counsel from relying on inconsistencies between the complainant’s account in oral evidence of Charge 4 and her account in her police statement.
3.   The learned trial judge erred in admitting the evidence of complaint to MP and MM (SE’s mother).
4.   The learned trial judge erred in allowing evidence to be led from the informant about how often complainants agree to take part in pretext conversations and how often complainants decide not to persist with complaints about sexual offences.
5.   The learned trial judge erred in charging the jury by:
a.Failing to make clear that her observations about why a complainant might delay complaining of sexual abuse were general in nature and not specifically referable to the applicant’s case.
b.Putting as arguments advanced by the prosecution, matters relating to the explanation for delay in complaining which had previously not been asserted in the trial.
c.Inviting the jury to have regard to recent public discussion about child sexual abuse to inform their assessment of the impact on the complainant’s credibility of the delay in complaining.

In my opinion, ground 5 of the application touching conviction has been made out, and the convictions cannot be permitted to stand. I understand, however, that mine is a minority view, so that the application relating to sentence also requires resolution.

Having had the opportunity of reading in draft the reasons of Osborn JA with respect to sentence, I agree that the application for leave to appeal should be granted, the appeal allowed and the applicant be resentenced. I have the misfortune, however, to disagree with the new sentence contemplated by the other members of the Court, since, in my opinion, a less severe total effective sentence and non-parole period would be appropriate. Since mine is a minority view, however, no good purpose would be served in my articulation of the sentence I would propose.

The factual background

It is necessary to outline briefly the relevant factual background and evidence.

SE was born 12 November 1967, and was thus aged seven to eight years of age at the time of the charged offending. The applicant, born 9 September 1938, was aged 36 or 37 years at the relevant time. He is now aged 77 years. The applicant and his wife, MM — SE’s mother — both worked as tram conductors.

SE alleged that the applicant anally penetrated her between 1975 and 1984, during periods when the applicant cared for her after school while MM was at work.

Charges 1, 2 and 3 related to an incident when SE was aged 8 years. SE alleged that after touching her on the breasts (charge 1 — indecent assault) and fondling her vagina (charge 2 — indecent assault), the applicant forced her to engage in anal intercourse to the point of ejaculation (charge 3 — buggery). This caused SE considerable pain and she was sore for some days following. As I have mentioned, the applicant was acquitted on charges 1 and 2.

SE alleged that, approximately two days later, the applicant rubbed Vaseline on her anal area (charge 4 — indecent assault) and again forced her to engage in anal intercourse to the point of ejaculation (charge 5 — buggery).

According to SE, similar abuse occurred until she was aged about 16, with anal intercourse taking place after school between three and five times per week.

Evidence was led that SE had complained to a number of people about her father’s sexual predations. Thus, MM, SE’s mother, gave evidence that, as a result of something she was told by SE’s then boyfriend, she spoke to SE who was then 19 years of age. She asked SE whether it was true that, ‘Daddy touched you and did things’, to which SE replied, ‘Yes’.

MP, SE’s cousin — she is the daughter of MM’s sister — gave evidence that earlier, in 1980, SE had told her ‘that her father had been touching her’. SE told her this when on a visit to Canberra, where MP was then living.

MH — MM’s sister — testified that when SE was ’16 or 17, that age group’, she told her that ‘dad touched me’. When MH asked what she meant, SE said that her ‘dad used Vaseline in her back passage’.

GDW — who was married to MM’s brother — said that, in around 1983 or 1984, SE told her ‘that her dad had been abusing her’.

RB — who was SE’s boyfriend — said that they started going out together in 1984. Early in their relationship, SE said ‘that she had been interfered with by her father’.

An investigation commenced on 20 April 2012, after SE complained to police. The informant, Detective Senior Constable Thomas O’Loughlin, took a statement from SE on 25 April 2012. He gave evidence that SE had earlier made a complaint to police in 2006, but that it was not pursued. Detective O’Loughlin also testified that SE had made another compliant in 2008, and had made a ‘draft statement’, but the matter did not proceed beyond that because SE did not ‘want to pursue it at that time’. Detective O’Loughlin gave evidence that with ‘historical matters’ police arrange to get a statement from the complainant, then explain what is involved in the investigation and court processes. Over objection, Detective O’Loughlin was permitted to give evidence about the course commonly adopted by complainants in such cases (which I will set out in detail when dealing with ground 4 of the application relating to conviction).

Detective O’Loughlin also conducted a record of interview with the applicant in which he denied the allegations made by SE.

No evidence was led by the defence.

Supposed fresh evidence — conviction ground 1

Ground 1 had two components. Both are without substance.

In support of the first limb of ground 1, it was submitted that SE had given evidence at trial that she remembered that when she was in Canberra in 1979 or 1980, she had complained to her cousin, MP, about her father’s abuse of her, saying, ‘I don’t like the way my father touches me’. It was submitted that, after verdict, contradictory evidence emerged from the mouth of MP. In particular, when giving evidence relevant to a later trial, MP said that SE stayed with her in 2013 and the two talked about the impending case. The supposed contradiction was said to emerge from the following passage of MP’s evidence:[28]

… I mean, it was just mainly to do with her case but I know there was a time when I said, you know, do you remember, you know, when — when you came to Canberra when I was, you know, I was ten years old, you — I came to you and I told you that your father was touching me, and do you remember your response? And she said, ‘I don’t remember’. So there was no point in, you know, going on and trying to, you know, force her to remember …

[28]Emphasis added.

Plainly, the first limb of ground 1 was misconceived. MP’s evidence related to a complaint that she had made to SE about the applicant’s abuse of her, not SE’s complaint. In context, SE’s lack of memory related to MP’s complaint, not her own complaint.

The first limb of ground 1 is wholly bereft of merit.

As to the second limb of ground 1, it was submitted that, although SE had said that she was anally penetrated by her father after school, it emerged for the first time when her victim impact statement, dated 19 November 2014, was tendered — after the jury’s verdicts — that she also claimed that she had been ‘molested’ by her father ‘before school on his days off or on his work holidays’.

In my view, even were this evidence to be considered ‘fresh’, had it been available at trial it could not materially have affected the jury’s assessment of the complainant’s credibility.[29] Indeed, to have introduced it may well have redounded to the detriment of the applicant, since it might have suggested that the applicant was a more prolific offender than the evidence at trial had suggested.
[29]R v Lewis-Hamilton [1998] 1 VR 630, 635 (Charles JA); Greensill v The Queen (2012) 37 VR 257, 273 [69], 275 [74] (Redlich, Osborn and Priest JJA) (‘Greensill’).

The second limb of ground 1 is also without merit.

Restricting cross-examination relevant to charge 4 — conviction ground 2

Ground 2, which asserts that ‘the trial judge erred in preventing the applicant’s counsel from relying on inconsistencies between the complainant’s account in oral evidence of Charge 4 and her account in her police statement’, cannot be upheld.

In her statement to police dated 25 April 2014, SE described the circumstances relevant to charge 4 as follows:

He began rubbing me with something what I know [sic] think was Vaseline between my bum cheeks. Gradually working in and trying to rub it into my bum hole. I was twitching and moving because I felt uncomfortable because I knew in my mind what was going to come next. I think that he had also rubbed some on himself as well.

In her evidence-in-chief, SE gave the following descriptions relevant to charge 4:[30]
[30]Emphasis added.

What was he doing?---He was trying — I don’t — I remember him standing there, and I’ve got my back thing. He was doing something. I’ve got this funny kind of smell when he turned me over and I was on my all fours facing the wall once again.
Funny kind of smell. What was it?---Vaseline, I think.
What was happening with the — I mean, you’ve described it as you think it was Vaseline. What was happening with that?---He was putting it on his penis.
Yes. Where were his hands in relation to your body?---On my — on my — on — on my cheeks.
All right. And can you describe what he was doing with his hands and how it felt?---He was rubbing himself up and down like a — yeah. Stroking himself.
No. Sorry. I’m asking you about what he was doing with his hands on your cheeks?---He was just rubbing my bum and this — yeah. And just — just touching — just touching my bum. Yeah. Just touching me — just touching me.
Right. Well, you mentioned that you thought you could smell Vaseline?---Yes.
And that he was rubbing your bum. Was any lubricant used on your bum?---Yes.
Yes. And how did that happen? Describe to the jury how that happened?---He applied it — he applied it on his penis.

During cross-examination, defence counsel put the following question, and elicited the following answer:

Yesterday you told the court that the Vaseline was rubbed on your father’s penis, but you didn’t recall it being rubbed into your anus, is that right?---Yes, I’m only going on what I remember day by day.

Once the question was asked, the prosecutor took issue with the accuracy of what had been put. There was then an exchange between the trial judge and defence counsel, in which the judge made it clear that she thought that the question ‘may not accurately reflect the overall tenor of the evidence’.

It is to be doubted that counsel’s question did accurately reflect the evidence that had been given by the complainant. That sounds the death knell for this ground as it was argued in this Court.

Insofar as the ground as formulated might complain, however, that counsel was prevented from eliciting inconsistencies between the complainant’s evidence and her statement to police, that complaint also cannot be upheld. In dealing with counsel’s question, the judge made clear that she was not stopping counsel from ‘making the forensic points’ that she was entitled to make, including teasing out any suggested inconsistencies between the complainant’s oral evidence and what she had said to police. As part of her attempt to bring out supposed inconsistencies, counsel — in what, it must be said, was an extremely perilous strategy — tendered SE’s statement to the police, and then made of it what she was able.

It is impossible to conclude that the judge prevented counsel from relying on inconsistencies between SE’s oral evidence and her statement. Tender of the statement by defence counsel strikes anyone experienced in criminal advocacy as a course of dubious wisdom. But counsel having been permitted to tender the document, it cannot be said that she was deprived of the opportunity of identifying any inconsistencies between the account there given and SE’s account in her oral evidence. Indeed, the jury would have had the opportunity to pore over the statement at relative leisure in the comfort of the jury room, and decide whether or not the inconsistencies pressed by counsel existed.

In her charge, the judge made clear that the jury might evaluate the supposed inconsistencies in the complainant’s accounts by reference to the statement:[31]

After the evidence of [SE] had concluded and the statement, the 2008 statement adopted into the 2012 statement was tendered and provided to you, I gave you instructions or directions about the way you can approach consistency in account, inconsistency in account, as bearing on your assessment of the truthfulness and credibility of [SE].
…
I also told you at the time that the statement was tendered that the statement could be used in a number of ways. It could be used to show — so you could evaluate the differences; the consistencies or the inconsistencies, or the consistencies and inconsistencies, between the two accounts, what is in the statement and what was said by [SE] in the oral evidence that was played to you.
But also, because [SE] said, in effect, her statement was her reliving the experience, what she said in the statement was what happened, what she said in the statement was the truth, you can use not only her oral evidence, the recorded evidence you saw, but you can also use the content of the statement as evidence of the truth of what happened.
So there are those different ways, a number of different ways, in which you can make use of a statement, to help evaluate consistencies between what is said in the statement and what is said in the oral evidence, inconsistencies between what is said in the statement and in the oral evidence, and the extent to which consistency might assist in your assessment of [SE’s] truthfulness and reliability, or whether consistency makes you think this is just a lie, a story repeated.
The extent to which inconsistency might bear on your assessment of whether she is a truthful and reliable witness, or whether you might say, well, the inconsistencies around peripheral detail or explicable by reason of the difference in circumstance in the way the statement was taken, the account of reliving it, and the formality of giving evidence in court, and whether the inconsistency is more consistent with someone telling a lived experience, concentrating on the big things and not always remembering or being entirely consistent and accurate about the detail.

[31]Emphasis added.

The tender of the statement — whether wise or not — was a deliberate forensic choice. Counsel sought to rely on supposed inconsistencies between the account in the statement and what had been said in oral evidence. It is simply wrong to say — as ground 2 alleges — that the judge prevented the applicant’s counsel from ‘relying on inconsistencies between the complainant’s account in oral evidence … and her account in her statement to police’.

Ground 2 must fail.

Complaint evidence to MM and MP — conviction ground 3

Ground 3 is concerned only with the representations to MM and MP[32] (and not, it is to be noted, MH, GDW or RB).
[32]See above, [87]–[88].

Despite no submission having been distinctly advanced to the trial judge, or in the written case in this Court, some attempt was made orally to argue that the representation made to MM was not ‘fresh in the memory’ within the meaning of s 66 of the Evidence Act 2008.[33] It was further argued that s 108 of the Act was not engaged, and that the risk of unfair prejudice outweighed the probative value of the evidence, such that s 137 dictated exclusion of the evidence of what SE had said to MM.
[33]See Pate (a Pseudonym) v The Queen [2015] VSCA 110, [65] (Weinberg JA), [146] (Priest JA); Clay (a Pseudonym) v The Queen [2014] VSCA 269, [50] (Weinberg, Osborn and Priest JJA).

In my view, the representation made by SE to her mother, MM, was admissible. Given the way in which SE’s credit had been attacked, it had some probative value. Any danger of unfair prejudice was ameliorated by the judge’s directions.

With respect to SE’s representation to MP in Canberra, it is important to note that the prosecutor initially had not intended to lead evidence of the relevant conversation, and only sought to do so after the defence had made clear that it would be suggested that SE had a variety of motives to lie.

Although it was sought to invoke s 66, no distinct submission was made to the trial judge that the representation was not fresh in SE’s memory, and no such submission should be contemplated in this Court. Indeed, it seems to me that the real issue is whether s 137 of the Evidence Act 2008 dictated its exclusion, counsel for the applicant asserting that the evidence was ‘vague’, ‘innocuous’ and ‘not probative of the allegations’ made by SE of forced anal penetration.

At common law, a complaint was admissible if it expressed a grievance or accusation of a sexual nature. It was led to buttress credibility by demonstrating consistency. To be admissible, however, it was not necessary that the complaint contain precise details of the conduct foundational of the charges.[34] Unlike complaint evidence at common law, however, where the principal touchstone of admissibility was the complaint having been made at the first reasonable opportunity, s 66 of the Evidence Act 2008 requires an ‘asserted fact’[35] to be fresh in the memory before a previous representation is admissible. Despite these differences — and, of course, subject to s 137 — there is no reason for concluding that a representation of an asserted fact that is fresh in the memory falls to be excluded because it does not precisely reflect the charged conduct. That said, there will be some circumstances where a previous representation is so vague or uncertain that any probative value is non-existent or slight, and, if slight, is outweighed by the danger of unfair prejudice. But that is not this case. In light of the defence strategy, SE’s representation to MP assumed real probative value.
[34]R v Lazos (1992) 78 A Crim R 388 (Crockett, Marks and Coldrey JJ).
[35]See Evidence Act 2008, s 59.

In my view, the applicant has not made good the submission that SE’s representation to MP in Canberra should have been excluded. Accordingly, ground 3 cannot be upheld.

Evidence of police informant as to behaviour of complainants — conviction ground 4

For reasons that it is unnecessary to canvass, the informant’s evidence was put before the jury in pre-recorded form. Detective O’Loughlin gave the following evidence-in-chief:

Just by way of background, could you tell the jury what the process is when a complainant comes in to make a sexual assault [sic], what they’re told, what options they’re given about whether the matter proceeds to charge. Can you just explain how that all works to the jury?--- Yes. When they come in to report a sexual assault to a police station the local [Sexual Offences and Child Abuse Investigation Team] is notified. Some detectives from there will attend and speak to the complainant, explain the process, what’s involved. If it’s a recent incident, we offer and arrange for a medical examination if they wanted it. With historical matters we would arrange to get a statement off them, then explain to them what’s involved in the investigation process and the court process if it gets to that.
Do they have a choice at that point about proceeding further with the matter?---Yes, absolutely.
You were a detective in this area for how long?---Three years.
In your experience is it unusual for a complainant to choose not to pursue charges in the matter?---Not at all. It’s more common than not.

In the course of cross-examination, counsel elicited that SE refused to take part in a ‘pretext call’, which is a technique designed to try and provoke admissions against interest from a suspect.[36]
[36]Detective O’Loughlin described a pretext call as follows:
A pretext call is a tactic we [the police] use sometimes with historical matters where we arrange for the complainant to make a phone call to the alleged offender to see if they can get that person talking about what has occurred, and we record this conversation.

Detective O’Loughlin then gave the following evidence when re-examined:

… Just with pretext calls, was that something you had experience with over your time in this [Sexual Offences and Child Abuse Investigation Team]?---Yes.

Defence counsel then objected, and there was the following exchange between counsel and the judge:

[COUNSEL]: Objection, Your Honour, asking for evidence in relation to an opinion. This witness …
HER HONOUR: Opinion? Or his experience of the frequency with which complainants agree or decline to participate in a pre-text call? Sounds like it is something based on his personal knowledge.
[COUNSEL]: Is Your Honour indicating that he is an expert who is able to give …
HER HONOUR: No, I’m saying it doesn’t sound like opinion. It sounds like he is being asked about something from his own experience.
[COUNSEL]: As Your Honour pleases.

The following evidence was then given:

In your experience, what is the frequency with which complainants decline to participate in pre-text calls?---Most of them decline. Very few are prepared to do it.

Prior to Detective O’Loughlin’s evidence being played to the jury, counsel took objection to the admissibility to those parts of it whereby he asserted that it is more common than not that complainants choose not to pursue charges, and that very few complainants are prepared to take part in pretext calls. First, although defence counsel had cross-examined SE on the history of making — and not pursuing — complaints, and on SE’s failure to take part in a pretext call, it was nonetheless submitted that it was not legitimate to lead the impugned evidence as a form of rebuttal. Secondly, counsel submitted that the impugned evidence was an opinion, which the informant was not qualified to give. In particular, it was submitted that the informant had not been shown to have ‘specialised knowledge based on [his] training, study or experience’, within the meaning of s 79 of the Evidence Act 2008.[37]
[37]See also Evidence Act 2008, s 108C.

It is clear that defence counsel intended to use SE’s history of making and withdrawing complaints, and her failure to take part in a pretext call, as a springboard for an attack on her credibility. Whether or not the course defence counsel adopted attracted s 101A or s 102 of the Evidence Act 2008 — a question which it is unnecessary to answer — the defence could not prevent the prosecution from making legitimate answer. Putting to one side whether the impugned evidence was evidence of opinion, based on general principles it was proper for the prosecution to lead evidence designed to answer the attack — made by a side wind — on SE’s credit. The defence had after all sought to make the evidence relevant to ‘the assessment of the probability of the existence of a fact in issue in the proceeding’.[38]
[38]See Evidence Act 2008, s 55.

MM was next cited by this Court in AC, a case involving the anal penetration of a boy of nine. In AC, the complainant took two (or, perhaps, three) days to identify the applicant as the perpetrator of anal injuries that he had suffered, he initially having claimed that he had suffered an accident. A psychologist, who had 29 counselling sessions with the complainant, was called by the prosecution to give expert opinion evidence as to why the complainant might have delayed in identifying the applicant as responsible for his injuries. The judge gave directions about delay, and made some comments about ‘people who have been sexually abused’, including some reflections about child victims.[49] Although the comments in that case suffered from the vice that the judge had spoken of ‘the experience of judges’ with respect to people who have been sexually abused, it seems to me that the comments were far less emotive than the comments in the present case.
[49]See AC, 285–6 [65].

Osborn JA, with whom Weinberg and Neave JJA agreed, concluded that, although the judge’s reference to the experience of judges was inappropriate,[50] there had been no miscarriage of justice.[51] Among the reasons for his Honour so concluding were at least two factors that are not present in this case. Thus, in AC the psychologist had given evidence as to what might be expected of human behaviour, and counsel had not taken exception on the basis pressed on appeal.[52] Osborn JA considered, based on the content of the directions in that case, and other factors, that it could not be concluded that the reference to the experience of judges had the capacity materially to affect the jury’s consideration of evidentiary issues.[53] It seems to me that his Honour used aspects of the comments in MM by way of contrast to the comments impugned in the case before him. Again, however, I do not read his Honour’s reasons as suggesting that the course not disapproved of in MM should be followed, or as giving the case unqualified endorsement. But in any event, as I have said, I regard the comments in the present case to be of a different order to those in AC. In my view, the judge’s comments in this case would materially have affected the jury’s assessment of the evidentiary issues to the detriment of the applicant. The result in AC — based, as it was, on its particular facts — does not present an obstacle to the success of the present application.
[50]In CMG v The Queen [2011] VSCA 416 (Ashley, Harper and Weinberg JJA), a miscarriage of justice was held to have occurred where the trial judge in a case of sexual offending involving children referred (see [11]) to research and studies concerning children’s behaviour which were not in evidence.
[51]AC 288–9 [77]–[80].
[52]Ibid 289 [84]–[85].
[53]Ibid [86].

So far as I can ascertain, apart from KRI and AC, MM has not been cited with approval (or, for that matter, disapproval) in any other Australian jurisdiction. And, apart from a passing reference,[54] as far as I can tell it has not been approved of in any other case in the common law world.
[54]See Miller v R [2010] EWCA Crim 1578, [23] (Leveson LJ, Tomlinson and Davis JJ). See also [2011] Crim LR 79–80.

At the risk of repetition, the respondent relied on certain directions not disapproved of by the Court of Appeal for England and Wales in MM to support the contention that the judge’s comments in this case were proper. Although it was held that the trial judge’s comments in that case did not exceed the bounds of permissible comment, I think it is correct to observe, as has the Judicial Studies Board, that the Court of Appeal did not give the comments ‘emphatic endorsement’.[55] Plainly, the reasoning in MM is not binding on this Court, and I would be slow to accept that the directions scrutinised in that case provide a suitable template of general application in cases of this kind.
[55]Judicial Studies Board, Crown Court Benchbook, 354. See also Miller v R [2010] EWCA Crim 1578 (Leveson LJ, Tomlinson and Davis JJ); GJB v R [2011] EWCA Crim 867, [26] (Stanley Burnton LJ, Henriques and Foskett JJ).

Indeed, despite the judgments of this Court in KRI[56] and AC[57] — which did not distinctly disapprove of the comments sanctioned in MM, and which might be interpreted as giving them tacit approval — in my view the comments in MM, couched in the terms that they are, should emphatically be disapproved. They do not exemplify the manner in which legitimate comment might be expressed. In fact, they are replete with difficulties. Thus, they commence with summaries of defence and prosecution arguments (which may, or may not, have been advanced in a given case), then glide into judicial comment without any clear delineation of where the comments of counsel cease and those of the judge commence. Having read them repeatedly, I confess that I remain at a loss to see with any clarity where the notional line is to be drawn. Hence, for example, where the jury is admonished to keep certain matters at the ‘forefront’ of their ‘minds’, is this a prosecution argument, or a comment of the judge? Further, resort to adjectives such as ‘calamitous’ — and other fraught language — is hardly likely to encourage objective and dispassionate consideration of the issues in such a case as the present. Moreover, some of the suggested reasons why a complainant may not earlier have spoken out might bear no relationship to the evidence and the issues in a particular case.
[56]KRI, [95]–[96] (Neave JA and King AJA), [137]–[138] (Osborn JA).
[57]AC, 288–9 [78]–[79] (Osborn JA).

In any event, the judge in this case strayed from what was said by the Court of Appeal not to ‘go beyond the bounds of permissible comment’ in the particular circumstances of that case.[58]
[58]MM, [16]. See also AC, 288–9 [78]–[79]; KRI, [95]–[96] (Neave JA and King AJA), [137]–[138] (Osborn JA).

Furthermore, as I have mentioned, the comments did not fall within s 61(2), since they were not comments on evidence given in the proceeding.

As I have also mentioned, the respondent further sought to derive comfort from certain observations in ERJ. In AC, Osborn JA, having remarked that, plainly enough ‘a judge is entitled to further exemplify the possible good reasons for delay contemplated by s 61(1)(b)’,[59] turned to some of what Redlich JA had said in ERJ.[60]
[59]AC, 287 [70].
[60]Ibid 287 [71].

It should be noted, however, that the observations of Redlich JA in ERJ relied on by the respondent were made in the context of the consideration of a ground which claimed that the verdicts were unsafe and unsatisfactory. His Honour made it clear that the kinds of considerations that he adverted to were relevant to the appellate court’s assessment of whether verdicts were unsafe and unsatisfactory. Although, of course, worthy of great respect, his Honour’s remarks concerning jury directions did not relate to a matter upon which it was necessary to reach a conclusion in order to decide the case. Thus, in my opinion, they are non-binding. But in any event, on a close reading, his Honour contemplated that the kinds of directions that might be appropriate will be moulded by the particular circumstances of the case. Having discussed various factors which might influence a delayed complaint, Redlich JA said:[61]
[61]ERJ, 280 [51].

Any of these factors may contribute to delay in making complaint or a

delayed conscious recognition that the conduct was wrongful. These are not necessarily explanations that the complainant will articulate in evidence. But the trial judge, in conformity with the statutory obligation should at least draw attention to some of those explanations which in the circumstances of the particular case may be relevant. We must take such possibilities into account in assessing the submission that the verdict is unreasonable or unsafe.

It must be recognised that s 61(1)(b)(i) requires a limited direction of law to be given. If the limited direction of law given mandate by the subsection is to be the subject of further explanation, it can only be by reference to the evidence in the particular case. Furthermore, where delay is raised, s 61(2) permits limited comment to be made. Such comment must be on ‘evidence given in the proceeding that it is appropriate to make in the interests of justice’.

The comments made by the trial judge went beyond what was permissible. They were, as I have said, more suited to a prosecutor’s final address than a judge’s charge. They may have been thought by the trial judge to be suitable comments to make in light of MM, KRI and AC. They were not. There has been a substantial miscarriage of justice. The verdicts must be quashed.

Conclusion

Ground 5 of the application for leave to appeal against conviction should be upheld.

The application for leave to appeal against conviction should thus be granted, the appeal allowed, the verdicts set aside and a retrial ordered.

McLEISH JA:

I agree with Priest JA, for the reasons he gives, that leave should be refused to pursue grounds 1, 2, 3 and 4 of the proposed appeal against conviction.

In respect of ground 5, in my opinion leave should be granted, but the appeal should be dismissed, for the reasons set out below.

It is necessary to commence consideration of the judge’s charge regarding the question of delay by reference to s 61 of the Crimes Act (as it stood at the time of the trial).[62] That provision is set out in the judgments of the other members of the Court. Relevantly for present purposes, s 61 does two things.
[62]Section 61 was repealed by s 79 of the Jury Directions Act 2015, ss 52 and 53 of which now make provision on the subject in materially different terms. It is convenient, albeit inaccurate, to refer below to s 61 in the present tense.

First, s 61(1)(b)(i) requires the judge, if delay in making a complaint about the alleged offence is suggested, to ‘inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it’. The use of the word ‘inform’ makes it apparent that Parliament considers it to be the fact that there may be such good reasons. Evidently, Parliament is concerned to ensure that the jury has that information. To achieve that aim, the judge may decide to do more than merely convey the information so as to make it clear to the jury that good reasons may exist. Section 61(1)(b)(i) does not require the judge simply to recite its words to the jury. The judge may, and should, give examples of possible reasons for delay if he or she considers that necessary in order to ensure that the information is effectively conveyed to the jury as the section requires.[63]
[63]See R v ERJ (2010) 200 A Crim R 270, 280 [51]; AC v The Queen (2014) 42 VR 278, 287 [70].

Secondly, s 61(2) permits the judge to go further, and to make any comment on the evidence given in the proceeding that it is appropriate to make in the interests of justice. Such a comment may only address the reliability of the complainant’s evidence if there is reason to do so in order to ensure a fair trial: s 61(3).

Taken together, these provisions show that criminal trials for the offences to which s 61 applies are to be conducted on the basis that there may be good reasons for a victim of a sexual assault to delay or hesitate in complaining about it, and that in seeking to ensure that the jury understands that, not only must the trial judge tell the jury that this is so but the judge may also explain why, by reference to possible reasons for delay which are either hypothetical or specific to the evidence in the case.

The entitlement of the judge to make comments, beyond giving the direction required under s 61(1)(b)(i), is constrained. In particular, the comments must be appropriate in the interests of justice: s 61(2). Those interests include, but are not confined to, ensuring that the information in s 61(1)(b)(i) is effectively conveyed. The cases show that there are limits beyond which comments cease to be appropriate.[64] The charge must not be unbalanced, and it must be clear to the jury that any observation of the judge by way of comment may be disregarded by them.[65] As long as those conditions are met, however, the judge may use strong or forceful language when making a comment.[66] The risk that this may overwhelm the jury, by virtue of the office of the judge, is to be counteracted by the authority of that office also being used to make clear that the jury is free to reach a different view. The question whether this had been sufficiently done was the issue in AC[67] and was at the heart of the difference between the members of the Court in KRI.[68]
[64]See, eg, the cases referred to in KRI v The Queen [2012] VSCA 186, [94] n 51.
[65]KRI v The Queen [2012] VSCA 186, [123]–[150].
[66]RPS v The Queen (2000) 199 CLR 620, 637 [42]; R v Boykovski (1991) 58 A Crim R 436, 443, 449.
[67](2014) 42 VR 278.
[68][2012] VSCA 186.

In determining in the present case whether the remarks of the trial judge gave rise to a substantial miscarriage of justice, the question is therefore whether the relevant remarks, taken in the context of the judge’s charge and the trial as a whole, risked overawing the jury in the proper performance of its task.[69] If that were the case, what was said would not have been required under s 61(1)(b)(i), nor would it have been a ‘comment … that it [was] appropriate to make in the interests of justice’ within the meaning of s 61(2).
[69]B v The Queen (1992) 175 CLR 599, 605.

In the present case, the transcript of the judge’s remarks shows that they were expressed in strong terms. As indicated, of itself that is not necessarily a matter of complaint. It is the overall impression made on the jury which is relevant.

The judge prefaced the statements in question with the following introduction:

What I am going to do now is make some observations or suggestions which I am going to suggest to you as a matter of common sense, and applying your experience of life, you may want to consider when deciding in this case whether there was good reason for delay and whether that delay affects your assessment of [SE’s] credibility. So this is a comment of mine which you can accept or reject, this part I am just about to deliver, so it stands in contrast to the directions I have given you to date.

The observations that followed suggested to the jury that they should draw on their own experience of life and their knowledge of life and of children and their relationship with adults. The judge exhorted the jury to ‘think about your knowledge of life, your experience and the learning that the community generally has been developing about these matters in recent years’. Much of what followed was expressed in terms of hypothetical possibilities. For example, the jury was told that they might think that a child who has been sexually abused ‘might have some inkling that what is happening is wrong, or might have an awareness that it is wrong’. The jury was told that children’s ‘youth and innocence may mean that they may not fully appreciate that what is happening is wrong, or that they can say no, or that they can tell someone about it’. They were told that ‘children could be embarrassed or shy or afraid’ and that ‘they may fear that they may not be believed’.

The judge concluded by saying that whether any of what she had said:

applies here in the circumstances of this case … is a matter for you. I have said these things not by way of direction but as things which, in common sense, and with knowledge of the world, you might like to consider in assessing whether you find that there is a reason for delay here and whether that affects your assessment of [SE’s] honesty and reliability.

The relevant observations of the judge were made immediately after she had given the direction required under s 61(1)(b)(i). As indicated, she prefaced her remarks with the statement that they constituted a comment. The judge did not, in the passages to which exception has been taken in the application for leave to appeal, specifically comment on any particular evidence in the proceeding. But it is clear that her remarks were directed to the consideration by the jury of whether SE’s delay in making a detailed complaint in relation to the alleged offences affected her credibility. That was an issue arising from the evidence given in the proceeding, and therefore, to the extent that what the judge said was properly described as a comment, it was a comment on that evidence.

On the other hand, the remarks that the judge made could be regarded at least to some extent, not as comments on the evidence, but as an explication, by way of hypothetical examples, of the information which she was required to give to the jury under s 61(1)(b)(i). She said, early in the remarks, that children ‘can be, you might think, inhibited for a variety of reasons from speaking out’. The jury was not free to reject the view that ‘there may be good reasons why a victim of sexual assault may delay or hesitate in complaining about it’. Much of what the judge said appeared to be directed to persuading the jury of that very proposition. (In contrast, the observations in issue in AC and KRI went further by commenting on behavioural facts.[70])
[70]AC v The Queen (2014) 42 VR 278, 287 [72]; KRI v The Queen [2012] VSCA 186, [64], [129].

Whether or not the passages in question are properly to be construed as comment under s 61(2) or as amplification of the direction required under s 61(1)(b)(i), the fundamental question remains whether what was said, taken in its context, risked overawing the jury so that it was distracted from its task. That task was to decide whether, bearing in mind the proposition in s 61(1)(b)(i), the delay on the part of SE in making a detailed disclosure of the alleged offending affected her credibility. The jury could, in performing that task, accept or reject any posited reasons for delay that might be said to bear on the complainant’s credibility.

I am not persuaded, reading what the judge said in its context, that the jury would have been at risk of being overawed by what was said. In my opinion the judge’s statements, while extensive, were measured in their content. The jury was repeatedly encouraged to draw on its own experience and knowledge and was told to decide whether ‘any’ of what the judge said applied to the circumstances of the case. The remarks were described by the judge as comments which the jury was free to reject. She correctly reminded the jury, at the conclusion of the remarks, that the question for them was ‘whether you find that there is a reason for delay here and whether that affects your assessment of [SE’s] honesty and credibility’.

Although the subject matter was intrinsically emotive, I would not characterise the language the judge used as unduly emotive or as that of an advocate. To the extent that the observations were made persuasively or forcefully, in my opinion that was consistent with the judge seeking to achieve the purpose of s 61(1)(b)(i). The risk that the remarks had any greater impact than they should have was addressed by the emphasis the judge placed on the jury being free to make its own decision, based on its own experience.

In reaching the above conclusion, I have had regard to the context in which the remarks were made, and in particular what the judge said to the jury by way of summary of the cases of the prosecution and the defence. Those aspects of the charge are fully canvassed in the other judgments and it is unnecessary to set them out again here.

It follows from the need to have regard to the context in which the relevant observations were made that comments made in other cases cannot necessarily serve as a template for future cases or as a definitive yardstick against which a charge in another case may be evaluated. Apart from anything else, the position in Victoria is governed by specific statutory provisions as in force from time to time which are not necessarily reflected in other jurisdictions. In my opinion a close comparison between the contents of the present charge and the comments that were made in R v MM[71] is therefore not especially fruitful, and certainly not determinative. I do not read the reasons of the Court in AC as endorsing the use of the actual comments in MM in every case where delay in complaint regarding sexual offending is an issue. The Court emphasised only the concluding passage as containing the clarity necessary to mark what is said as being only by way of comment.[72]
[71][2007] EWCA Crim 1558.
[72](2014) 42 VR 278, 288-9 [78].

Moreover, the comments in MM were intermingled with summaries of the prosecution and defence cases. To some extent, those comments went to behavioural facts, carrying with them the potential risk that the jury might think, as was argued in AC, that what was being said derived from judicial experience rather than matters of general human experience to which the jury may choose to have regard. As noted, the Court in AC held that the judge in MM had avoided that risk by appropriate directions at the conclusion of what was said. In my view, the comments made by the trial judge in this case were expressed in a manner that successfully (and more satisfactorily) avoided that risk.

As the reasons of Priest JA demonstrate, what the judge said in the present case is open to other interpretations. This serves as a reminder of the need for caution and restraint in offering comments to the jury.[73] However, I am reinforced in my conclusion by what occurred at trial.
[73]RPS v The Queen (2000) 199 CLR 620, 637 [42].

Defence counsel stated after the judge had charged the jury that her ‘only exception’ in relation to the relevant statements was ‘not what was said on the topic or the manner in which it was said’, but that it should be made clear to the jury that the comments were general and did not indicate any view the judge had of the facts in the case. As the judge pointed out in declining to re-charge the jury, she had both prefaced and followed the observations in question with statements making it clear to the jury that what she was saying on the subject of delay were comments of her own which the jury was free to accept or reject. The judge had previously raised with counsel her intention to make comments to the jury in accordance with the approach approved by this Court in AC.[74] Although, as I have explained, in my opinion that reads too much into AC, the judge had made her intentions clear.
[74]AC v The Queen (2014) 42 VR 278.

Those present had the advantage of seeing and hearing the manner in which the judge spoke to the jury. It is apparent that defence counsel, while concerned that the jury should clearly understand that the judge’s remarks were made by way of comment, did not apprehend that anything in the substance of what the judge said, or the manner in which she said it, was objectionable. The judge dealt correctly with the exception that was taken. This course of events confirms my view that the statements made by the judge did not carry with them the risk of overawing the jury so as to fall outside s 61(1)(b)(i) or (2) and give rise to a substantial miscarriage of justice.

It follows that, while I would grant the application for leave to appeal against conviction, the appeal should be dismissed.

In respect of the application for leave to appeal against sentence, I agree with the reasons and proposed orders of Osborn JA.

---

[2015] VSCA 304

17 November 2015