K R I v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0297

KRI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, OSBORN JJA and KING AJA
WHERE HELD	GEELONG
DATE OF HEARING	30 May 2012
DATE OF JUDGMENT	16 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 186
JUDGMENT APPEALED FROM	DPP v [KRI] (Unreported, County Court of Victoria, Judge Hampel, 11 August 2011 (conviction))

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CRIMINAL LAW — Application for leave to appeal against conviction — Indecent act with or in the presence of child under 16 years — Sexual penetration of a child under 16 — Four complainants — Whether failure to order separate trials caused miscarriage of justice — Whether alleged collusion deprived tendency and coincidence evidence of significant probative value — Whether judge adequately directed jury on possibility of collusion —Whether failure by judge to summarise evidence and submissions of counsel caused miscarriage of justice — Whether judge’s comments on children’s possible reaction to sexual abuse caused miscarriage of justice.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J D Singh	Michael Brugman
For the Respondent	Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
KING AJA:

The applicant, KRI, was indicted on 15 charges of sexual offences against four boys, TAD, BRM, SJP and BA. The alleged offences occurred on or between specified dates in 1996, 1997 and 1998, when the complainants were aged between seven and 13.

On 11 August 2011, the applicant was found guilty by a County Court jury of eight charges of an indecent act with or in the presence of a child under 16 years (charges 1, 2, 3, 4, 6, 13, 14 and the second alternative to charge 15[1]) and one charge of sexual penetration of a child under 16 (charge 7).
[1]The judge ruled during the trial that there was no evidence to support the primary charge, and therefore, only the alternative charges were left to the jury.

The jury could not reach a verdict on charges 8 and 10 (indecent act) and the applicant was found not guilty on three charges of attempting to commit an indecent act (charges 9, 11 and 12). Charges 8, 9, 10 and 11 related to the complainant BA and charge 12 related to the complainant SJP.

No evidence was led in support of charge 5 (indecent act with or in the presence of BRM) and the jury was directed to enter a verdict of acquittal. The jury was also directed to acquit the applicant of charge 15 (sexual penetration of SJP), although the applicant was convicted of the second alternative charge of an indecent act with or in the presence of SJP.

The applicant now seeks leave to appeal against his convictions.

Circumstances of the offending

The offences were alleged to have occurred between 1996 and 1998, when the applicant was living in Corio with his wife and two sons. He was then aged between 40 and 42. The complainants lived in the neighbourhood and were friends with the applicant’s son, KA.

The Crown alleged that the offending, which mainly involved acts of touching and licking the complainants’ genitals or anal area, occurred when, on separate occasions, they stayed overnight at the applicant’s home.

The details of the offences of which the applicant was convicted and the sentences imposed can be summarised as follows:

Charge	Offence	Facts	Sentence	Cumulation
1	Indecent act with or in the presence of TAD	On one occasion in 1996, TAD (aged 13 years) slept at the applicant’s house. He awoke to find the applicant with his hands down TAD’s pants and fondling TAD’s penis and testicles.	2 years	1 year
2	Indecent act with or in the presence of BRM	On 10 February 1996, BRM (then aged 7 years) was watching a movie with the applicant and KA. The applicant put his left hand down BRM’s pants and touched his penis.	2 years	3 months
3	Indecent act with or in the presence of BRM	Following charge 2, BRM and KA went to sleep in KA’s bedroom. The applicant came into the bedroom, got onto the bed, pulled BRM’s pyjama pants down and licked BRM’s anus.	2 years	3 months
4	Indecent act with or in the presence of BRM	Following charge 3, the applicant returned to the bedroom, and again licked BRM’s anus.	2 years	3 months
6	Indecent act with or in the presence of BRM	Following charge 4, the applicant returned to the bedroom and licked BRM’s anus for the third time.	2 years	3 months
7	Sexual penetration of BRM.	Following charge 6, the applicant got on top of BRM and inserted forcibly his penis into BRM’s anus.	5 years	Base
13	Indecent act with or in the presence of SJP	SJP (who was then aged between 9 and 10) was watching a movie with KA (who fell asleep). The applicant sat next to SJP, removed his erect penis from his pants and offered SJP $300 in exchange for a ‘head job’. SJP refused.	18 months	3 months
14	Indecent act with or in the presence of SJP	Several weeks after charge 13, the applicant exposed his penis to SJP and offered him $400 for a ‘head job’. SJP refused.	18 months	3 months
15	Indecent act with or in the presence of SJP (Alternative charge to sexual penetration, or attempted sexual penetration of a child)	Following charge 14, KA and SJP were asleep in a bedroom. SJP was sleeping on his stomach and awoke to the applicant lying on top of him. The applicant tried to push his penis into SJP’s anus	2 years and 6 months	1 year

The Crown also alleged that the applicant had offended against BA, the brother of BRM. As we have said, he was acquitted of these charges.

The defence case was that none of the alleged acts had occurred. The evidence of the complainants was said to be tainted because of the contact they had had with each other, and BA was alleged to have concocted allegations against the applicant to support his brother. This was the only issue arising in relation to the indecent act charges.

In the case of charges 7 and 15, the defence also argued that there was insufficient evidence to establish that BRM and SJP had been sexually penetrated. If charge 15 was not made out, the additional question on the first alternative to that charge was whether, if the jury found that the applicant had pressed his penis against SJP’s anus, this amounted to attempted penetration. As we have said, the applicant was acquitted of charge 15, but convicted on the second alternative charge.

Grounds of appeal

The applicant now seeks leave to appeal on the following grounds:

1.Separate trials should have been ordered in respect of each complainant.
2.The trial judge failed to direct, or adequately direct, the jury about the risk of collusion between the complainants.
3.The trial judge failed to summarise the evidence and submissions of counsel.
4.The trial judge erred in referring to material not in evidence concerning child witnesses.

Ground 1 – separate trials

Prior to the trial, the Crown served notices under ss 97 and 98 of the Evidence Act 2008, seeking cross-admission of the complainants’ evidence as tendency and coincidence evidence. On 8 March 2011, a County Court judge ruled that the evidence was cross-admissible as tendency and coincidence evidence and that the trials should not be severed. The applicant then sought leave to appeal against that ruling, the judge having certified the interlocutory appeal under s 295(3)(a) of the Criminal Procedure Act 2009. At that stage, a voir dire had not been held, because the parties had agreed that the trial judge could rely on the evidence in the depositions.

The interlocutory appeal was dismissed by this Court in KRI v The Queen.[2] Hansen JA (with whom Buchanan and Tate JJA agreed) held that the judge had correctly held that:
[2](2011) 207 A Crim R 552 (‘KRI’).

· the evidence of each of the complainants had significant probative value as evidence of both tendency and coincidence;[3]
[3]Ibid 563-4, [57]-[58] (tendency), [61] (coincidence).

· it was both ‘open to the judge, and correct’ to conclude that the evidence should not be excluded because of any possibility of ‘corruption’ or ‘contamination’;[4]
[4]Ibid 563 [56].

· the probative value of the evidence significantly outweighed its prejudicial character;[5] and

· the judge had not erred in declining to order separate trials, because an appropriately directed jury would be able to understand the purpose for which it could use the cross-admissible evidence and its admission would not deprive the applicant of a fair trial.[6]

[5]Ibid 564-5, [59] and [62].

[6]Ibid 565, [63]-[64].

The applicant now contends that the failure to order separate trials caused a miscarriage of justice. He argues that evidence giving rise to an inference that the complainants colluded, or that they were unconsciously influenced by the evidence given by other complainants, was not apparent from the depositions, but only emerged in cross-examination at the trial. Our conclusion below sets out the passages in cross-examination on which he relies.

The Crown submits that, apart from the suggestion made to BA during cross‑examination that he had concocted his allegations, which he denied, there was no material change in the evidence in the depositions which was considered in the interlocutory appeal and the evidence which emerged at the trial. It was not explicitly put to any of the other complainants that they had concocted their evidence. Except in the case of BA, defence counsel went no further than questioning the complainants about whether they had discussed the matters with each other.

Conclusion on ground 1

The applicant’s failure on the interlocutory appeal did not preclude him from appealing against conviction. As Hansen JA said in KRI:

the applicant would in the event of conviction be able to raise his objection by way of application for leave to appeal against conviction, which right he will still have notwithstanding the present decision of this Court.[7]

[7]Ibid 565, [66].

To the extent that the applicant’s submission was based on the premise that if the evidence of the four complainants was not cross-admissible, the trials must necessarily have been severed, it was misconceived.

Counsel for the applicant submitted that because the alleged offending against each complainant lacked ‘underlying unity’ and failed to demonstrate a common means of operation or pattern of conduct,[8] there should have been separate trials for the charges relating to each complainant.
[8]R v Papamitrou (2004) 7 VR 375, 391, [31].

Although cross-admissibility of evidence is, of course, a relevant factor in deciding whether trials should be severed, it is not determinative. Sub-sections 194(2) and (3) of the Criminal Procedure Act2009 provide as follows:

(2)Despite section 193[9] and any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), if in accordance with this Act 2 or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together.
(3)The presumption created by subsection (2) is not rebutted merely because evidence on one charge is inadmissible on another charge.

[9]Section 193 empowers the court to order that one or more charges be tried separately.

Similar provision was made previously in s 372 of the Crimes Act 1958, and the former presentment rules in Schedule VI of that Act. As Winneke P recognised in R v Papamitrou:[10]
[10](2004) 7 VR 375, 387-8, [26]-[27] (‘Papamitrou’).

It should…be pointed out that where multiple sexual offences against more than one complainant have been properly joined in the one presentment in accordance with the Presentment Rules contained in the 6^th Schedule to the Crimes Act, the discretion to sever, at least in this State, is not necessarily dictated by ‘mutual admissibility’ or the lack thereof. The amendments to s 372 of the Crimes Act made by the Crimes (Amendment) Act 1997…were introduced to ensure that trial judges carefully considered whether severance was necessary even where the judge concluded that the evidence of complainants was not ‘cross-admissible’.
…
As this court pointed out in R v KRA,[11] these amendments make it appropriate that severance of the presentment:
should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of Christou.[12]

In particular, the court pointed out that the trial judge should consider whether potential prejudice could be overcome by appropriate directions, bearing in mind that juries can be trusted to heed the directions of the trial judge.
Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross‑admissible because such a determination will ― in most cases ― be a powerful factor influencing the discretion.

[11][1999] 2 VR 708, 715 (President, Brooking and Ormiston JJA).

[12]R v Christou [1997] AC 117, 129. The leading judgment was given by Lord Taylor of Gosforth who, adopting the reasoning of Lord Lane CJ in R v Cannan (1990) 92 CrAppR 16, took the view that the statute gave the trial judge an undoubted discretion and that to hold that, in sexual offence cases, it should be exercised in a particular way was an unnecessary fetter on the discretion. The ‘essential criterion’ was ‘a fair resolution of the issues’ which involved not only fairness to the accused but also to the prosecution and its witnesses.

Where an appellant relies on a failure to sever as a ground of appeal against conviction, the issue for determination is whether this has caused a miscarriage of justice, because it resulted in an unfair trial to the accused. The applicant claims that it did so in this case. He argues that, with the benefit of hindsight, the evidence of each complainant should not have been admitted as tendency and coincidence evidence, because the possibility of collusion or unconscious influence deprived it of significant probative value.

He placed particular emphasis on Winneke P’s statement in Papamitrou[13] that:

Absent collusion, collaboration or other forms of ‘infection’ the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each complainant as supportive…of the evidence of others.[14]

[13](2004) 7 VR 375.

[14]Emphasis added.

We now turn to the evidence on which the applicant relied to establish that there was a risk of collusion or unconscious influence. The offence against TAD allegedly occurred in 1996 and was reported to the police in 2009. During cross‑examination, TAD said that his sister had told him in June or July 2009 that BRM wanted to contact him, and that he (TAD) had made a statement to police approximately three months afterwards.

TAD agreed that he had had a ‘few conversations’ with BRM during this three month period. He had also spoken to his own parents about the allegations. It was put to him that he would have been told ‘in minute detail’ what it was that BRM was accusing the applicant of and he said that ‘[BRM] never fully explained what he was charging [the applicant] for.’ It was also put to him that BRM had told him that he had contacted the police in 2004. TAD said he did not recall BRM telling him this and denied that BRM had shown him a copy of his police statement.

TAD was then asked whether BRM had gone into some detail about his allegations and he responded ‘a minute detail of it, yes.’ Counsel for the applicant submitted that this answer meant that TAD and BRM had discussed BRM’s allegations ‘in minute detail’, whereas the Crown contended that it meant that BRM had only told TAD ‘a minute detail’. TAD agreed that he knew that BRM was accusing the applicant of going into the bedroom and ‘touching him on the penis in the middle of the night’. He also agreed that parts of his evidence were a ‘mirror image’ of the conduct of which BRM had accused the applicant.

TAD said he did not have any discussions with BRM’s brother BA or with SJP about his allegations against the applicant.

The offences against BRM allegedly occurred on 10 February 1996 and were reported to the police on 19 July 2004. BRM’s evidence was that he went to live with his aunt when he was 14, and that in June 2004, he had told her about the alleged offences. He had also been concerned about TAD and said that he had had initially spoken with TAD’s sister.

In contrast to TAD’s evidence, BRM said in cross-examination that he had not spoken to TAD before TAD had made his police statement, but that some time later, he had asked TAD whether he had made a police statement, to which TAD responded that he had.

BRM said that he had not seen any of the other complainants’ police statements, but had seen the statement made by his aunt, to whom he had first complained about the offences.

The offences against SJP allegedly occurred in 1997 and were reported to the police on 19 June 2009. SJP had told his uncle about the alleged offences in 2005 or 2006. During cross-examination, SJP said that he had been friends with BRM until he was about 14 or 15, and had then lost touch with him until BRM got back in touch with him in 2004. He said he had not discussed what had happened to him with BRM but in around 2004, BRM told him that he had made a police statement. He admitted that BRM had told him ‘little bits’ of the statement’s contents, namely that ‘something happened to him when he stayed at [KA’s] house’, and that it had been done by the applicant. SJP said that he did not ask any questions because it was not his business, and that BRM did not volunteer any further information. However, he agreed that, given his own experience, he knew what BRM was talking about. The conversation he had with BRM was about 5 years before he made his own police statement.

The offences against BA (BRM’s older brother) allegedly occurred in 1997 and 1998 and were reported to the police in August 2004. In his police statement, BA said that his aunt had told him that BRM had been raped and had asked him (BA) if anything had happened to him.

In cross-examination, he said that he did not recall what his aunt had said to him. He said that he had initially denied that anything had happened to him, but later told her what had happened. BA said that he had spoken to BRM about what had happened to him after BRM made his police statement and before he himself made a police statement in August 2004. He said that BRM had not spoken to him about what had happened to him prior to this time.

It was put to BA during cross-examination that he had concocted his evidence to support the version of events given by his brother, BRM. He denied this. It will be recalled that the applicant was not convicted of charges 8, 9, 10 and 11, which were the only charges relating to BA.

Evidence was given by the former husband of the aunt of BRM and BA, who said that he had asked BA in 2004 if he had been touched by the applicant. He said that BA had initially denied that the applicant had done anything to him, but had subsequently told him what had occurred. This was the only conversation he had had with BA about the matter. He said that on a couple of occasions he was aware that BA had been present while BRM was talking to their aunt, who had asked BA if anything had happened to him.

In our opinion, the evidence which emerged in cross-examination added little to the evidence in the depositions which were considered by this Court in the interlocutory appeal.

In his reasons for dismissing the interlocutory appeal, Hansen JA summarised the trial judge’s findings as to the possibility of contamination or corruption of the evidence as follows:

the judge stated that the possibility of conscious or unconscious influence between complainants must be a real possibility and not just potential for concoction based upon an opportunity. He noted that no request was made to cross-examine the complainants or any witness on a voir dire to challenge the provenance or authenticity of the complaints. As to [BRM] speaking to his brother [BA] and indirectly to [TAD] nothing in the circumstances showed a real possibility of concoction. And [SJP] had spoken to relatives years before. The judge noted further that given some of the differences in the allegations made by the brothers, ‘it seems clear that the two did not get their heads together to ensure identical or very similar allegations were made’. He observed that while the applicant’s counsel might seek to raise the risk of ‘joint concoction’ with the jury, it remained a jury issue which did not render the evidence of less than significant probative value.[15]

As we have said, the Court found that it was ‘both open to the judge, and correct, to conclude as he did on this issue’.[16]

[15](2011) 207 A Crim R 552, 559, [33].

[16]Ibid 563, [56].

In our opinion, the evidence elicited in cross-examination did not demonstrate that the evidence of the complainants should not have been admitted as tendency or coincidence evidence. The fact that BRM and BA had spoken to each other was known at the time of the interlocutory appeal and reference was made to it in the passage above. Hansen JA also referred to BRM speaking ‘indirectly to TAD’. Although evidence was given in cross-examination that TAD and BRM had spoken to each other, there was dispute between them as to whether this had occurred before TAD made his statement to the police. There was no evidence that TAD knew of BA’s or SJP’s allegations. Although the uncle’s evidence suggested that BA’s complaint might have been made as a consequence of BRM’s allegations, the converse did not apply. The applicant was not convicted of offences against BA.

In considering whether there was a miscarriage of justice because the evidence lacked significant probative value and thus should not have been admitted as tendency or coincidence evidence under ss 97 and 98 of the Evidence Act 2008, there is an apparent conflict between the approach by this Court in BSJ v The Queen[17] on the one hand, and the view of a five judge bench of the New South Wales Court of Appeal in DSJ v The Queen[18] and the Tasmanian Court of Criminal Appeal in J v Tasmania[19] on the other.
[17][2012] VSCA 93 (‘BSJ’).
[18][2012] NSWCCA 9 (‘DSJ’).
[19][2011] TASCCA 7.

In BSJ, the complainant appealed against his conviction for various sexual offences committed against his stepdaughters. The Crown submitted that the possibility that the girls had concocted their evidence did not deprive the evidence of significant probative value. The Court referred to the principle in PG v The Queen[20] that in assessing whether evidence has significant probative value:

[t]he assessment of reliability is predominantly a question for the jury, except in cases where the circumstances are such that the issues of credit and reliability are so fraught that it is possible for the court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue.[21]

[20][2010] VSCA 289 (‘PG’).

[21]Ibid [62].

On the assumption that PG was correctly decided, the Court in BSJ held that:

the issue of concoction is properly viewed as an exception to that rule. Deciding whether there is a ‘real chance’ that concoction has occurred will ordinarily not involve any assessment of the reliability or credibility of individual witnesses. Rather, it entails a fact-finding exercise, in which the judge will consider what the objective record shows about matters such as relationship, opportunity and motive. These are matters which can properly be assessed by a judge, without usurping the function of the jury.[22]

[22]Ibid [21] (citations omitted).

By contrast, in DSJ, an interlocutory appeal against a ruling relating to the admissibility of coincidence evidence in an insider trading case, the New South Wales Court of Criminal Appeal did not regard the possibility of concoction as an exception to the general principle articulated by a five judge bench in DAO v The Queen.[23]In DAO, it was held that, generally speaking, a trial judge should take the evidence ‘at its highest,’ in determining whether it had significant probative value and that the assessment of reliability is generally a question for the jury.
[23](2011) 278 ALR 765 (‘DAO’); special leave refused by the High Court [2011] HCA Trans 298.

In DSJ, Bathurst CJ, with whom Allsop P and McCallum J agreed, said the following:

it follows from the use of the word ‘could’ in the definition of significant probative value that what the court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence: cf R v Shamouil.[24]
… the matters to which the court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. In particular, regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings. This also demonstrates, in my opinion, that it is no part of the Court’s task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value.
However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury.[25]

[24](2006) 66 NSWLR 228.

[25]DSJ v The Queen [2012] NSWCCA 9, [8]-[10].

Whealy JA (with whom all other members of the Court agreed) delivered the main judgment. He said that:

Assessment of the probative value of the evidence, whether for the purposes of ss 97, 98, 101 or 137 Evidence Act, does not, generally speaking, depend on any assessment of its credibility or reliability: Shamouil.[26] Nor does it depend upon any prediction of the likelihood that a jury will in fact accept it. The trial Judge considering probative value has to make his own estimate or assessment of probative value predicated upon the assumption that the jury will accept the evidence. See also Lodhi v R;[27] R v Mundine[28] where this Court said:
‘probative value’ is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted , would play in the resolution of a (disputed) fact - or the contribution it might, if accepted, make to that resolution. ... to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.[29]

[26](2006) 66 NSWLR 228, 237, [60].

[27][2007] NSWCCA 360, [174]-[177].

[28][2008] NSWCCA 55, [33].

[29]Ibid [56].

Similarly, in J v Tasmania, the Tasmanian Court of Criminal Appeal overruled earlier decisions in which it had declined to follow the New South Wales approach.

On the basis of the evidence described above, we do not consider that the use of the evidence for tendency and coincidence purposes resulted in any miscarriage of justice. As we have said, it was not put to any of the complainants except BA that they had concocted their evidence of sexual abuse. Nor was there anything in the evidence suggesting any real motive for concoction apart from some cross‑examination (which did not really lead anywhere) about whether the complainants disliked or had a grudge against the applicant. In her charge, her Honour drew the attention of the jury to the complainants’ responses to questions relating to their alleged dislike of the applicant.

Defence counsel did not seek to cross-examine any of the complainants on the voir dire to show there was a risk of concoction or innocent influence. The fact that the boys knew each other when they were children and that BRM spoke to TAD’s sister and had some conversation with TAD is insufficient to justify the conclusion that the evidence was so lacking in significant probative value that it should not have been put before the jury. For these reasons, it is unnecessary to deal with the conflict which arguably exists between the approach taken by this Court in BSJ and New South Wales and Tasmanian authority.

Since the evidence was cross-admissible, there was no miscarriage of justice caused by its admission or by the failure to sever the trials. For these reasons, ground 1 fails.

Ground 2 – directions as to collusion

The applicant argues that the evidence of discussions between some of the complainants raised the suggestion of collusion, and that the judge’s directions on collusion were inadequate, because her Honour gave only general directions and did not recite or summarise the evidence that was relevant to that possibility.

The judge referred at several points to the applicant’s defence that the offences had not occurred. Her Honour directed the jury on the issue of collusion as follows:

the defence argument is that the accounts, the allegations made by each of the four complainants and the apparent similarities between the accounts given by them is due to either collusion, that is, putting their heads together to make false allegations about the accused, or to unconsciously influence, that is, having heard of one person’s allegations, to have it unconsciously influence them to make similar allegations themselves. So the defence says these are not similarities born out of truth. These are similarities born out of deliberate concoction or unconscious influence.
The prosecution says that there is no evidence that the complainants knew of the detail of each other’s allegations or even knew that the others had been sexually assaulted by the accused. It is for you to determine whether or not each of the four complainants is telling the truth. However, let me make this very clear: you can only draw an inference from the fact that they all gave such similar accounts that they must be telling the truth if you are satisfied beyond reasonable doubt that their accounts were not contaminated by reference to each other’s accounts.
If you think that there is a possibility that all [or] some of them have either deliberately colluded to tell false stories or have been unconsciously influenced by the knowledge that others have made allegations, particular allegations against the accused, then you could not draw the inference that the similarities are such that they could only result not from coincidence but because they must be true and they must all be telling the truth.
So it is really two sides of the same coin, is it not? The prosecution says the similarities are such that they cannot be explained by coincidence. That therefore demonstrates that they are telling the truth. The defence says the similarities are such that they must have put their heads together or been unconsciously contaminated by the knowledge of each other’s allegations. It is only if you accept that the boys are telling the truth that you can use the evidence in this way that I have described.

In continuing her charge on the following day, her Honour referred to what each of the complainants had said in telling adults about what had occurred. In that context she said that :

You have heard evidence that [BRM] told [his aunt] in 2004, that there had been sexual misconduct. He said he had been raped by the accused. And of course, it was as a result of what [BRM] said to [his aunt], that [BA] was asked over that period of a week or more, if anything had happened to him, and which ultimately led to him telling [his uncle] something had happened to him, and he gave evidence that he said to [his uncle] that the accused had touched him up and had on two occasions given him a hand job.
It was in 2005 or 2006, according to [SJP’s uncle], that [SJP] sat out on the veranda at the back of their house with him and told him that the accused had tried to touch him up and said that he had rubbed him up and tried to put his penis in his backside, and it was in 2009, after [BRM] had approached [TAD’s sister] at the McDonalds in North Geelong where she worked and suggested that she speak to her brother, and [BRM] having told her that he himself had been touched by [KRI], that [TAD’s sister], a few weeks later when [TAD] came back to Geelong from Sydney where he had been, asked him whether anything had happened to him and that he told her he had been touched by the accused.
It does not seem to be an issue that each of these four complainants did make a disclosure to these family members... What is in issue though is what exactly was said by each of the boys to that family member and in the case of ...[TAD], what they knew of [BRM’s] allegations before they made their disclosures to their family members.
It is up to you to make your findings about that evidence about what they said, about what they knew before they said, and about the circumstances in which those people who did not spontaneously volunteer it, that is, [BA] and [TAD], about what impact the knowledge other complaints had been made had on them and what knowledge they had about the content of the other complaints, as opposed to the fact of the other complaints, what impact that had on what they then said when they made their disclosures or complaints to their trusted family members.
That evidence has been canvassed extensively with you and it has only been in the last few days it has been given, so I am not going to summarise it for you again, simply to remind you who are the relevant people, that is for [BRM] it is [his aunt], for [BA] it is [his uncle], for [SJP] it is [his uncle] and for [TAD] it is [TAD’s sister], and you have got the transcript, you will be able to check what each complainant said and what each family member said about what they were told. Look at the similarities, look at the differences and make your assessment of the credibility of the complainants, the reliability or truthfulness of the accounts they gave to you as to what they said to the family members yourself. That is a matter for you.

Her Honour’s direction on collusion was expressed in similar terms to the Victorian Criminal Charge Book. Although she did not discuss each piece of evidence bearing on the question of what passed between the complainants, we consider that the jury was adequately directed to the relevant evidence. They were also carefully warned of the necessity to be satisfied beyond reasonable doubt that the similarities in the complainants’ accounts were not due to collusion or to the influence of accounts given by other complainants. Accordingly, ground 2 should be rejected.

Ground 3 – failure to summarise evidence

During her charge, the learned judge said that:

I know you have got the transcript so you can refresh your memory about the detail, but it seems to me that not only has this been a relatively short trial, where you should have been able to retain most of what the witnesses have said, but counsel have been careful and thorough in their addresses in reminding you of the evidence as it relates to each charge, and it seems to me that it is unnecessary for me to do that for you again. I hope this will be of more assistance to you.

The applicant contends that a miscarriage of justice occurred because her Honour did not adequately summarise the evidence or the arguments of counsel. He relies on Scetrine v The Queen,[30] in which this Court said that:

This court has reminded trial judges repeatedly of their common law obligations to relate the evidence to the issues, to summarise the salient aspects of an accused’s record of interview and to summarise counsel’s arguments. The court has also emphasised, repeatedly, that the requirement to do so applies generally. As Ormiston JA observed in R v De’Zilwa,[31] the fact that a trial is of but short duration or that the issues may appear to be straightforward is not an excuse for a judge to fail to comply with those requirements:
One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial.[32]

[30](2010) 28 VR 213 (‘Scetrine’).

[31](2002) 5 VR 408 at 410, [3].

[32](2010) 28 VR 213, 217, [16] (Nettle and Redlich JJA and Beach AJA).

In Scetrine, the ground of appeal relating to the failure to summarise the evidence and the arguments of counsel failed, although the Court was critical of the way in which the judge related the evidence to the facts in issue and the failure to refer to a passage in the applicant’s record of interview in which he said that he was impotent and physically incapable of committing some of the acts with which he was charged. The Court was fortified in its view that no miscarriage of justice had occurred because defence counsel had failed to take exception to the judge’s proposed course of action not to provide a more detailed summary. The Court considered that defence counsel’s failure to do so reflected a forensic decision that this was in the best interests of the accused.

In our opinion, ground 3 is not made out. The structure of her Honour’s jury charge may not have been entirely conventional, but she did not fail to relate the evidence to the issues. At the beginning of her jury directions, her Honour referred to the indictment, explained the elements of each offence, and described the issues in contention. Her Honour then gave the jury a document which described the conduct alleged to constitute the relevant offence and referred to the applicant’s defence that the alleged events did not occur. After giving further directions of law, the judge told the jury that the evidence could be divided into six groupings. These were:

·the complainants’ accounts of the alleged offences and their surrounding circumstances;
·the complainants’ evidence about telling someone else about what happened to them;

·the evidence of persons to whom complaints were made;
·what the accused man said in his record of interview; and
·the accused’s absence of prior convictions and evidence of his good character.

In addition, her Honour referred to the evidence of the applicant’s then wife and his son. She then made remarks on various aspects of the evidence.

Apart from charges 7 and 15, where the evidence related to whether the act of sexual penetration or attempted sexual penetration occurred, the only issue in the case was whether the jury were satisfied beyond reasonable doubt that the indecent acts occurred.

In his police interview, the applicant accepted that TAD, BRM and BA had slept over at this house, but said that he was not even sure who SJP was. He denied that the alleged acts had occurred, although he also said that BRM did not like him, and that he had been sent an unpleasant SMS by TAD. Except for the issue of delayed complaint, which we discuss below, the defence attack on the circumstantial evidence ‘was more or less limited to identifying a few relevantly inconsequential inconsistencies in the detail of some of the complainants’ evidence’,[33] and between the accounts they gave to family members and their evidence at trial.
[33]Scetrine (2010) 28 VR 213, 219 [27].

Leaving aside the directions on collusion, which we have already held were adequate, the judge did not fail to direct the jury on the matters relevant to proof of each offence. Although her Honour did not repeat the complainants’ evidence verbatim, she did all that was necessary having regard to the nature of the Crown and defence cases.

During the jury charge, the judge asked counsel whether there were additional matters she should include in the summary of facts and counsel’s arguments. After some discussion she said that:

The question really was, given that all I’m going to do now is to go through the question trail and take them through each sheet of it, identifying the act and the questions they need to answer, whether – but I’m not proposing to summarise the evidence or to refer to any arguments that either of you have put – whether either of you have any other arguments you’ve put that you consider haven’t been identified in the directions to date that you wish me to identify for the jury or remind the jury about, or whether there is any evidence that I’ve not directed the jury’s attention to as relevant to the issues that I’ve directed them about.

Defence counsel explicitly indicated that he was content with the summary. This reinforces our conclusion that no miscarriage of justice arose because of an inadequacy in the jury charge.

In our view, this ground of appeal is not made out.

Ground 4 – reference to material not in evidence

The applicant contends that a miscarriage of justice occurred because the judge made the following remarks in the course of her charge:

Now, also I want to say this to you, experience shows that people who have been sexually abused often feel embarrassed, ashamed or powerless. They fear that if they make a complaint they will not be believed or that they will be blamed. Those feelings are often compounded where the victim is young and where the perpetrator is a respected adult within their circle. There may be, especially with young victims or in respect of events which happen when victims are asleep, an uncertainty or an unwillingness to believe what is happening, or a limited understanding of what is right and wrong and what can be done.
The very innocence of a young child may make it difficult to comprehend conduct, or to frame it in terms of a sexual violation in the way an adult might. They are all matters to take into account when considering the relevance of the delay and bearing in mind that delay in complaint or disclosure is relevant only to your assessment of the credibility of the complainants, and really the question you have to come back to, is the delay inconsistent with the account of the events that they have given in court.

In support of this ground, counsel for the applicant relied on CMG v The Queen.[34] In CMG, this Court allowed an appeal against conviction because the trial judge had, in effect, given directions of law about aspects of child behaviour, and referred to research relating to the reliability of child witnesses, despite the failure of the Crown to call expert evidence relating to those questions.
[34][2011] VSCA 416 (‘CMG’).

In his oral submissions, the applicant submitted that, as in CMG, the above passage in her Honour’s charge amounted to a direction of law or, at the very least, would have been regarded by the jury as such a direction. Her Honour had not told the jury that her remarks were simply a comment which they were free to disregard. Her Honour’s reference to experience showing that people who are sexually abused often feel embarrassed, and that complainants feared ‘that if they make a complaint they will not be believed or that they will be blamed’ and that the ‘very innocence of a young child may make it difficult to comprehend conduct, or to frame it in terms of a sexual violation’ all indicated that these remarks were made with the authority of her Honour’s judicial office.

Counsel contended that the danger that the jury might have regarded her Honour’s remarks as directions of law was heightened by the fact that the statements she made were not related to the actual evidence given by the witnesses, but were expressed as generalities.

Further, not all of the remarks made by her Honour were qualified by the use of words such as ‘may’ or ‘could’, thus creating the risk that the jury would have apprehended them as applicable to all child complainants. As an example, the reference to feelings being ‘compounded’ when the victim was young and the alleged offender was a respected adult, was not qualified by the use of the word ‘may’.

In addition, the reference to the ‘innocence’ of children created the risk of prejudicing the jury and was inapposite when some of the alleged offences of which the applicant was convicted involved a complainant aged between 12 and 13 at the time of the alleged offending.

Conclusion on ground 4

Under s 61(1)(b) of the Crimes Act1958, where a person is on trial for a relevant sexual offence 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.
(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
…
(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.

In his written submission, counsel for the applicant argued that the circumstances requiring a direction under s 61(1)(b) did not arise. Since that submission was not strenuously pressed at the hearing, it is only necessary to deal with it briefly.

Section 61(1)(b) was considered by this Court in R v Jackson,[35] in which Buchanan JA (with whom Batt and Vincent JJA agreed) said that:

Counsel for the applicant submitted that he made a deliberate forensic decision not to challenge the complainant about his delay in complaining or to comment on the matter in the course of his address. In my opinion, however, questions were asked which tended to suggest that there was a delay in making complaint.
The complainant’s mother was asked questions about when the matter first came to light. It was put to her that the matter came to a head when she received a call from a man nearly ten years later. Questions asked of the complainant in cross-examination elicited evidence that the offence took place in the immediate proximity of his mother, father and another adult and that he ‘didn’t say anything to anyone about any of these matters for about ten years’ or ‘nine years’. In my view the question of delay was clearly placed before the jury and enlivened the operation of s 61 of the Act. It was not necessary for counsel to use the word ‘delay’ or a synonym for it or to ask the complainant why he had not complained earlier. Nor do I think that the fact that the questions were not designed to show delay prevented the operation of the section. The section operates when a question is asked which tends to suggest that there was delay in making complaint. The questions brought into the open the period of time between the applicant’s conduct and complaint. Having regard to the length of the period, that was sufficient, in my view, to require the trial judge to direct the jury as he did.[36]

[35][2004] VSCA 224.

[36]Ibid [16]-[17] (emphasis added).

In the instant case, defence counsel sought to challenge the credibility of each complainant by relying on their evidence about the circumstances surrounding each alleged offence. Each of the complainants was cross-examined about their failure to alert either KA (who was present in the room), or KA’s mother (who was in the house at the time) about the applicant’s offending, immediately after it had occurred.

For instance, TAD was cross-examined as follows:

Yet, despite those thought processes in what you describe as a quick think occupying your mind for about an hour you did not wake [KA]; did you?---No.
You did not tell him in the morning what had happened; did you?---No.
You say you didn’t tell anybody about this night until your sister spoke to you some years later?---Yes.
Even then, you didn’t go to the police until you had spoken on several occasions, had several discussions with [BRM] in that three month period between your sister speaking to you and going to the police, correct?---Yes.

In re-examination, TAD explained that the he did not tell KA about what had happened because ‘it was [KA’s] father, I didn’t want to cause a rift between him and his father.’

BRM was cross-examined as follows:

Did it occur to you that you could have woken [KA] and with him or got him to go and speak to his mother?---Yes, I could have had a time to do that.
That occurred to you as you were laying there; correct? ---Yes.
You made a specific decision not to do that; is that what you say?---Sorry, can you repeat that?
Certainly. You said that it occurred to you while you were laying there that you could have woken [KA] and got him to go himself or go with you to speak to [KA’s mother] correct?---Correct.
Yet though it occurred to you to do that you chose not to; correct?---Correct.
Having gone through the thought process and realised that that option was open to you; why did you take the positive decision not to do it?---It’s because I was scared.

Each of the complainants was also cross-examined about the circumstances in which they had made their police statement. For example, BRM was questioned at length as to the date on which he first told his aunt about the offending, which was some time in July 2004.

These questions would have suggested to the jury that the complainants delayed in complaining or, at the least, ‘brought into the open the period of time between the applicant’s conduct and complaint’, such that a direction in the terms set out in s 61(1)(b) was required, for the reason given by Buchanan JA in R v Jackson.

We would therefore accept the Crown submission that, in the circumstances of this case, her Honour was required to direct the jury under 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’.

The relevant passage in her Honour’s charge must be examined in light of this requirement and of the fact that the section of her charge about which the applicant complains was preceded by references to the issue of delay and to the complainants’ evidence about why they had not complained immediately.

Immediately prior to the passage in issue, her Honour said that none of the four complainants had told anyone about the events for many years and all were cross‑examined about their failure to do so. She said that:

they all agreed they could have told [KA] or [KA’s mother], that they could have made excuses for going home and that they could have done things to try and remove themselves from danger.

She also noted that TAD, the oldest of the boys, said he had not wanted to cause a rift between KA and his father. She said that all of the four complainants had said by way of explanation that they did not know what to do, or were afraid.

Having told the jury that they could take delay in complaining into account in assessing the complainants’ credibility, her Honour said the following:

It is important to understand that is the only relevance of delay in making a complaint, that is, whether it affects your assessment of the credibility of any of these four complainants. It is for you to determine whether delay in complaint is inconsistent with the way you would expect a child in the circumstances in which these four found themselves to act.
If you would have expected a complainant in the circumstances of any of these four to complain about such an offence more promptly, then you may find that the delay in complaining is inconsistent with the truthfulness of the account given by the complainant and that is exactly the argument that has been made by Mr Dewberry.
However, in determining the evidence shows inconsistency, that is the delay in making complaint or disclosing, it is important that you understand that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it. And these may lead you to find that there is no inconsistency in this case in respect one of more of these complainants.
You must bear in mind that [BRM] was only seven years of age at the time, [SJP], nine or 10, [BA] aged between 10 and 12 and [TAD], the oldest of them, 13. The accused was a neighbour and the father of their friends who they played with. [KA], the friend, was younger than all four of the complainants, as [BRM] told you, only five at the time of the events complained of by [BRM], so if you do the arithmetic through that, would have been five or six to [TAD] 13 in 1996. He would have been between six and eight, compared to [BA] ten to 12.
It was also suggested that there may have been some - or, when you are considering the relevant of not making complaint or disclosure at the time and the evidence of the delay in complaint or disclosure, there was also some questioning about whether the four complainants liked the accused man. Those who were asked about whether they disliked, or those to whom it was suggested that they did not like the accused man, denied it. [TAD] said that the accused man…was a person he had a lot of respect for. He denied that he did not like him. He acknowledged that he had been told off by him on occasions.
He expressed surprise at the suggestion, which came from what the accused man volunteered in his interview, that he had sent an abusive text message, saying he did not think he would have said something like that to [the applicant], and if he had been sent away on an occasion where he had wanted to come into the [applicant’s] house and play the guitar, you may have thought from his response to that when asked about it in evidence, that it was not a memory that had lasted with him, or that had rankled.
[BRM] readily agreed that - certainly, by contrast, remembered the spilling of the wine incident, as, it would appear, did [KA], that was a memory that seemed to have lasted for [BRM], [KA] and the accused man. All of them, when asked about it were obviously not saying, ‘Oh, I’d forgotten that’, but obviously remembering it. So too, for that matter, was [KA’s mother] and [BRM] readily agreed not only about remembering a night when the wine was spilt, but readily agreed that he and [KA] had been blamed for spilling the wine. So did [KA] for that matter, and [KA], you might recall said something like, ‘Yes, we boys got the blame for it’. So that seemed to be the only evidence relating to whether any of the complainants disliked or had a grudge against the accused man.
Now, of course, as Mr Dewberry said, the evidence is what they said. So the evidence is that [TAD] says he had a lot of respect for [KRI], that he did not dislike him. It is up to you whether you accept his answer on that or not, but there is, in fact, no evidence before you that he did not like him. There is no evidence before you that did not respect him, but you can reject his evidence if you like, depending on your assessment of his credibility, when he said, ‘I had a lot of respect for him, I didn’t dislike him’, but that would mean you would simply be left with an absence of evidence about how [TAD] felt about the accused man back at the time when he was a boy.
And of course, also, you may consider relevant to this issue of delay, not saying anything at the time and not saying anything until later, the fact that all had said the accused had been drinking or smelt of alcohol on the occasion of the offences alleged by them.
You can also take into account when considering delay in complaint and whether it is consistent with the behaviour you would expect of somebody who had been subjected to the acts they said they were, the evidence of the responses of the complainant in the bedroom or in the lounge room, for that matter. So, for example, [BA] said that he had wrapped himself up in the blanket after the first act on each of the two nights that he alleges acts occurred. [BRM] said he had extricated himself from under the accused’s arm, getting out of the bed and going to spend the rest of the night on the couch before going home.
[SJP] gave evidence that when the accused put his hand on his leg, he moved down the couch to get away from him and did it a second time when the accused followed him down the couch. All of them said that they left early the next morning, most of them saying before anyone was up, one of them saying [KA] got up and offered him breakfast and he said no and went straight home. So that is also conduct that you can take into account in considering whether the absence of complaint at the time and the delay in complaint affects your assessment of their credibility, affects an assessment as to whether it is conduct consistent with the events having happened as they said or not.[37]

The remarks to which ground 4 is directed were made immediately following this passage in her Honour’s charge.

[37]Emphasis added.

It was, of course, essential for her Honour to make it clear to the jury that her remarks about delay and its effect on the assessment of the complainants’ credibility were only comments and that it was for the jury to decide whether the Crown had made out its case. The requirement to ‘make it perfectly clear to the jury that they are the judges of the facts and, accordingly, that they are free to accept or reject’ a judge’s comment on matters of fact,[38] has been extensively discussed in the authorities to which Osborn JA refers in his reasons.[39]
[38]Boykovski and Atanasovski v The Queen (1991) 58 A Crim R 436, 443.
[39]See, eg, Azzopardi v The Queen (2001) 205 CLR 50, 69-70 (Gaudron, Gummow, Kirby and Hayne JJ).

However, whilst her Honour unfortunately did not use these or similar words immediately before making the remarks which are the subject of this ground of appeal, it does not follow that the jury would have regarded them as a direction of law, in the context in which she made them. In our opinion, there was no risk that they would have done so. The judge’s direction which in CMG was held to have led to a substantial miscarriage of justice was quite different.

In that case, defence counsel in his closing address had referred to the fact that the complainant was a very young child who was ‘open to suggestions’ and said that ‘a child who has not reached her full adult intellectual capacity can ― not necessarily but can ― be less reliable than an adult witness’.[40]
[40]The full extract is set out in [2011] VSCA 416, [8].

In an apparent attempt to counter the suggestions made by defence counsel that children are unreliable witnesses, the trial judge said the following:

Children are not inherently unreliable as witnesses. [Counsel for the appellant] put to you that they can be less reliable because they do not have the full intellectual capacity of adults and because they are children they do not appreciate the full consequence of telling lies. He also said the children are more easily influenced and respond to leading-type questions, that is, questions which suggest the answers. He also said that people do lie and some children, not all, lie habitually until their lies are exposed.
While it is true to say that children do not have the intellectual capacity of adults, I need to draw to your attention that the rest of those comments are common misconceptions about children as witnesses. Indeed, the Chief Justice of the Supreme Court of New South Wales said in a case in 2006, there is a substantial body of psychological research indicating that children, even very young children, give reliable evidence. Therefore I need to caution you against making any false assumptions about children’s evidence generally or about [the complainant’s] evidence in particular. Each child witness will have strengths and vulnerabilities that may potentially bear upon his or her ability to give evidence. The same may be said of adult witnesses.
Whether the strengths and vulnerabilities have any impact at all is a matter to be considered in the circumstances of each case, and that is what you should do here. Consider the particular context of [the complainant] as a person in the circumstances of this case. While you cannot ignore that she is a child and must take that into account, you should consider how she gave her evidence and what she said in the context of all of the evidence and not on the basis of misconceptions about children as witnesses. A study as long ago as 1993 found that children, even very young children, are able to remember and retrieve from their memory large amounts of information, especially when the events are personally experienced and highly meaningful. Other studies have reached conclusions which you may find of assistance to you in evaluating the arguments put forward by each side in this case.
First, any assumption that children have a greater or less a tendency to lie than adults has not been able to be proven, and there is no evidence that indicates that honesty of children is less than adults. Next, the published research suggests that children are capable of telling deliberate lies from the age of four. Next, young children may lie when they anticipate punishment or when they are threatened by someone not to disclose the truth.
Next, as they grow older, they may gain additional reasons for lying: to obtain a reward, to protect their self-esteem, to regulate the dynamics of their relationships with others and to conform to norms and conventions. And children aged nine to 10 years are not likely to report an incident they have been asked to keep secret, but are more likely to report under direct questioning than children aged five or six.
Some other things to consider are that the published literature indicates that by the age of five, most children’s speech sounds a lot like that of adults. However, simply because a child sounds like an adult does not mean that she or he has an adult’s cognitive development or command of language. By cognitive development, I mean the development of the brain and its intellectual and emotional functions. Cognitive and language development continues throughout childhood and into adulthood. For example, studies show that children do not understand questions put in the negative until around the age of 11 or 12, and children under 12 have problems when questions ask more than one thing at a time. You need to take these things into account when evaluating the arguments on [the complainant’s] evidence.
I am not giving you this information to suggest that I think [the complainant] is a reliable and truthful witness. What I think has got absolutely nothing to do with your decision. Whether she is or is not truthful and reliable are questions for you to determine, but you should determine them taking care not to make any false assumptions about children’s evidence generally or about [the complainant’s] evidence in particular.

Harper JA (with whom Ashley and Weinberg JJA agreed) said that in light of defence counsel’s closing address, the judge was entitled to consider that ‘the jury needed to be presented with a more nuanced picture’, and to tell the jury that counsel’s statements were not evidence and the jury was entitled to disregard these statements if they disagreed with them.[41] His Honour said:

She was, in addition, entitled to tell the jury that, as the Court of Appeal (England) emphasised in R v Barker[42] the collective experience of the courts is that ‘the age of a witness is not determinative of his or her ability to give truthful and accurate evidence’.[43] In R v Barker, the Court of Appeal continued:
Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children, carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child. ... In a trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence.

I do not put forward the passage quoted above from Barker as a template.[44]

[41]Ibid [10].

[42]R v Barker [2010] EWCA Crim 4 (Court of Appeal, Criminal Division) (Lord Judge CJ, Hallett LJ and Macur J).

[43]Ibid [40].

[44][2011] VSCA 416, [10]-[11].

However, the Court held that the trial judge had gone beyond this in her jury direction. As Harper JA observed:

Her Honour was either giving evidence, or she was charging the jury on the law. But a judge cannot give evidence. He or she may of course comment on such evidence as is placed before the jury, but only after ensuring that the jury are aware that they must disregard those comments if they do not find them helpful.
The judge herself categorised what she had said to the jury as directions of law. If so, they were binding on the jury. The very real danger, therefore, is that the jury understood (for example) that they were bound to accept that a study as long ago as 1993 found that children, even very young children, are able to remember and retrieve from their memory large amounts of information; or that there is no evidence that indicates that the honesty of children is less than that of adults. As Latham LJ said in D:
The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning … But any comment must be uncontroversial. It is no part of the judge’s task to put before the jury [a relevant expert’s] learning without [that expert] having been called as a witness.[45]

Of course, nothing in this judgment should be taken as providing guidance about the proper construction of s 37B of the Crimes Act 1958, which provides that, in interpreting and applying those sections of that Act which deal with sexual offences, courts are to have regard to the facts to which that section refers: that there is a high incidence of sexual violence in society; that sexual offences are significantly under reported; that a significant number of these offences are committed against vulnerable persons (such as children); that the offenders are commonly known to their victims; and that sexual offences often occur without physical signs of injury.[46]

[45][2008] EWCA Crim 2557.

[46][2011] VSCA 416, [13]-[15] (emphasis added).

Harper JA pointed out that, unlike the common law, the Evidence Act 2008[47] permitted opinion evidence to be led about child development and child behaviour (subject to certain conditions). However, no such evidence had been called and:

[i]t was not within the limits of the judicial function for the judge to attempt to fill the gap. The comments of her Honour were not properly within the scope of directions of law, and they were controversial. They took the judge into the arena. This is prohibited territory.[48]

[47]See s 108C.

[48][2011] VSCA 416, [18].

The remarks made by the judge in this case were quite different from those in CMG. Her Honour did not enter the fray by, in effect, giving expert evidence about the outcomes of psychological research on children. Nor did she characterise her statements as directions of law.

The explicit requirement in s 61(1)(b)(i) to direct the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining is intended to recognise the barriers which complainants in sexual offence cases may face in reporting the offence. The judge’s remarks were relevant to the issue of delayed complaint because of the youth of the complainants and the evidence they gave as to why they had not immediately told someone about the offending. It was, of course, essential for her Honour to make it entirely clear that these were simply matters which the jury may wish to consider in determining the effect of the delayed complaint on the complainants’ credibility.

Her Honour did so when she told the jury that:

It is important to understand that is the only relevance of delay in making a complaint, that is, whether it affects your assessment of the credibility of any of these four complainants. It is for you to determine whether delay in complaint is inconsistent with the way you would expect a child in the circumstances in which these four found themselves to act.
If you would have expected a complainant in the circumstances of any of these four to complain about such an offence more promptly, then you may find that the delay in complaining is inconsistent with the truthfulness of the account given by the complainant and that is exactly the argument that has been made by Mr Dewberry.[49]

[49]Emphasis added.

In CMG, this Court considered that the judge would not have erred if she had charged the jury in the terms used in R v Barker.[50] In that case, the English Court of Appeal prefaced its comments about the matters the jury should take into account in assessing the evidence of child witnesses by referring to ‘the collective experience of the courts’.[51]
[50][2010] EWCA Crim 4.
[51]Cf R v D [2008] EWCA Crim 2557, where the trial judge was held to have gone too far in referring to the trauma of rape, at least in the absence of a balancing direction and R v Breeze [2009] EWCA Crim 255, where the judge’s repetition of a rhetorical question about whether the complainant would have put herself through a trial if she was lying was also held to have led to an unbalanced charge.

Similarly, in MM,[52] the Court of Appeal (England) held that it was not beyond the bounds of permissible comment for the judge to tell the jury that:

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.[53]

[52][2007] EWCA Crim 1558.

[53]Ibid, as cited in the Crown Court Bench Book, 354.

In England, the Crown Court Bench Book notes that:

Judges have, as a result of their experience, in recent years adopted the course of cautioning juries against applying stereotypical images [about] how an alleged victim or an alleged perpetrator of a sexual offence ought to have behaved at the time, or ought to appear while giving evidence, and to judge the evidence on its intrinsic merits. This is not to invite juries to suspend their own judgement but to approach the evidence without prejudice.

The Crown Court Bench Book gives a number of examples of remarks which might appropriately be made by a judge in cases involving evidence of child witnesses or of adults who allege that they were sexually abused as children. They include the following.

Children do not have the same life experience as adults. They do not have the same standards of logic and consistency, and their understanding may be severely limited for a number of reasons, such as their age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life viewed by an adult. Children may not fully understand what it is that they are describing, and they may not have the words to describe it. They may, however, have come to realise that what they are describing is, by adult standards, bad or, in their perception, naughty. They may be embarrassed about it, and about using words they think are naughty, and therefore find it difficult to speak. Bear in mind that they are being asked questions by an adult they see as being in a position of authority ― the policeman in the interview, or an advocate in court, or indeed me. That can make it difficult for them. Remember how you normally talk to children of this age. How difficult must it be if the form in which a question put is complicated or challenging or conceptual (such as ‘How did you feel?’ or ‘Why didn’t you?’), and you should bear those difficulties in mind when you consider the answers given.
All decisions about the evidence are for you to make. I only advise caution against judging children by the same standards as you would an adult.[54]

[54]Crown Court Bench Book, 367.

The matters to which her Honour referred largely reflect the matters set out in the English Crown Court Bench Book, although the statement set out above is followed by the words ‘all decisions about the evidence are for you to make’.

It may also be noted that most of the matters to which her Honour referred as relevant in assessing the effect of delay on the complainants’ credibility were also alluded to in the passage from Redlich JA’s reasons in R v ERJ[55], which is set out in Osborn JA’s judgment. In that passage, Redlich JA said that a trial judge should refer to some of the explanations for delay which may arise in the circumstances of the case, in compliance with the statutory obligations imposed by s 61(1)(b)(i).
[55](2010) 200 A Crim R 270, 280 [51].

The trial judge’s duty is to ensure a fair trial. That is not limited to ensuring that the accused receives a fair trial, but also to ensuring that complainants are treated fairly.

In our opinion, there was nothing in the actual content of her Honour’s statements which would have led the jury to conclude that they were binding on them. It would have been better if her Honour had not preceded her remarks by reference to what ‘experience’ showed, since this expression could have suggested that she was relying on her own judicial experience. Every judge must ensure that if they are putting forward their personal opinion or view of the evidence or making a comment, that the jury understand that they are not bound to follow that personal view or comment, but are free to disregard the matter.

Rather than making general comments about the factors which may result in a delay in complaint, it would have been better for her Honour to relate these remarks to the evidence on this issue given by the complainants. This included BRM’s statements at several points in his evidence that he had not told anyone because he was ‘scared’ and that when he was assaulted he ‘did not know what to think’, SJP’s evidence that immediately after the offending he was ‘scared shitless’ and that he had told neither KA nor the applicant’s wife because ‘it’s not like something you want to hear from…that your dad had done to one of your mates and… I was scared as well’ and TAD’s evidence that he was ‘in shock’ after the offending.

Moreover, whilst it is true that her Honour’s remarks were expressed as a series of propositions,[56] some of these propositions were qualified by use of the words ‘may’ or ‘often’. For instance, her Honour said that:

·There may be…an uncertainty or unwillingness to believe what is happening;
·The very innocence of a young child may make it difficult to comprehend conduct…

[56]See the reasons of Osborn JA at [129] below.

Now, also I want to say this to you, experience shows that people who have been sexually abused often feel embarrassed, ashamed or powerless. They fear that if they make a complaint they will not be believed or that they will be blamed. Those feelings are often compounded where the victim is young and where the perpetrator is a respected adult within their circle. There may be, especially with young victims or in respect of events which happen when victims are asleep, an uncertainty or an unwillingness to believe what is happening, or a limited understanding of what is right and wrong and what can be done.
The very innocence of a young child may make it difficult to comprehend conduct, or to frame it in terms of a sexual violation in the way an adult might. They are all matters to take into account when considering the relevance of the delay and bearing in mind that delay in complaint or disclosure is relevant only to your assessment of the credibility of the complainants, and really the question you have to come back to, is the delay inconsistent with the account of the events that they have given in court.[63]

[63]Emphasis added.

Ground 4 is directed to the last two paragraphs of this part of the trial judge’s charge. It can be seen that before the impugned portion of the charge, the trial judge had identified and articulated the defence argument that if the offending had really happened, then the jury would expect the complainants to have said something about it shortly afterwards and not delayed for many years after the events in making complaints. Her Honour went through the way in which the complainants ultimately disclosed the allegations of offending and the explanations they gave for not making earlier complaints. She gave a direction pursuant to s 61(1)(b)(ii) that the jury could take into account the delay in complaint in assessing the credibility of the complainants. She then gave the direction required by s 61(1)(b)(i).

However, in determining the evidence shows inconsistency, that is the delay in making complaint or disclosing, it is important that you understand that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it. And these may lead you to find that there is no inconsistency in this case in respect one of more of these complainants.

The trial judge went on to remind the jury of the ages of the complainants; the evidence as to whether they did or did not like the accused man; the evidence that the accused had been drinking at the time of the alleged offences; and the detailed evidence of the complainants’ behaviour immediately after the alleged offences. The charge then culminated in the passage which is the basis of this ground of appeal and appears in bold above.

The fundamental problem with the culmination of her Honour’s direction is that it was not expressed as a comment and that, in the context of the charge as a whole, there is a real and substantial risk that it would not have been understood as a comment but as a direction.

This is not a case like CMG v The Queen,[64] in that:
[64][2011] VSCA 416.

(a) that case was concerned with a direction about the reliability of child witnesses;

(b) this is not a case in which the trial judge purported to state the effect of scientific literature about such witnesses; and

(c) this is not a case in which the judge herself characterised the statements in issue as a direction of law.

Nevertheless, CMG does state the basic principle which is engaged in this case and counsel for the applicant was correct to refer to it. In CMG, Harper JA (with whom Ashley and Weinberg JJA agreed) stated:

A real difficulty, however, remains. Her Honour was either giving evidence, or she was charging the jury on the law. But a judge cannot give evidence. He or she may of course comment on such evidence as is placed before the

jury, but only after ensuring that the jury are aware that they must disregard those comments if they do not find them helpful.[65]

[65]Ibid [13].

In Azzopardi v The Queen,[66] Gaudron, Gummow, Kirby and Hayne JJ articulated the fundamental limitations upon what a judge may or may not say to a jury about the facts, which derive from the division of functions between judge and jury. In short, a judge may comment on the evidence but not give directions on the evidence. Their Honours explained the distinction in the context of discussing the statement of Lord Parker CJ in R v Bathhurst,[67] concerning comment by a judge about the failure of an accused to give evidence.

It is also to be noticed that Lord Parker referred in Bathurst to the ‘accepted form of comment’ rather than to any accepted form of judicial direction. This reflects the language used in relevant legislation (like the Accused Persons’ Evidence Act) which also spoke of ‘comment’ on a failure to give evidence. The distinction between a matter for comment and a matter for judicial direction reflects the fundamental division of functions in a criminal trial between the judge and the jury. It is for the jury to decide the facts of the case. It is for the judge to explain to the jury so much of the law as they need to know in deciding the real issue or issues in the case. In the course of directing the jury, the judge must give the jury such warnings as may be called for by the particular case, not only against following impermissible paths of reasoning, but also about the care that is needed in assessing some types of evidence such as evidence of identification.
It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge’s task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established. But the distinction between comment and direction is important. Telling a jury that they may attach particular significance to the fact that the accused did not give evidence is a comment by the judge. Because it is a comment, the jury may ignore it and they should be told they may ignore it. By contrast, warning a jury against drawing impermissible conclusions from that fact is a direction by the judge which the jury is required to follow.[68]

[66](2001) 205 CLR 50.

[67][1968] 2 QB 99, 107-8.

[68]Azzopardi v The Queen (2001) 205 CLR 50, 69-70, [49]-[50] (emphasis in original) (citations omitted).

In Mahmood v State of Western Australia,[69] Gleeson CJ, Gummow, Kirby and Kiefel JJ said:

The distinction between a direction and a comment by a trial judge is referred to in Azzopardi v The Queen.[70] It reflects the fundamental division of functions in a criminal trial between the judge and the jury. The distinction is important. Telling a jury that they may attach particular significance to a fact, or in this case suggesting that other evidence may be considered of greater weight, is comment. Because it is comment it may be ignored by the jury, a matter about which the jury should be told. A direction, on the other hand, may contain warnings about the care needed in assessing some evidence or the use to which it may be put. A direction is something which the law requires the trial judge to give to the jury and which they must heed.[71]

[69](2008) 232 CLR 397, 403, [16].

[70](2001) 205 CLR 50, 69-70, [49]-[52].

[71](2001) 205 CLR 50, 70, [50].

Before turning to the question of whether the trial judge’s statement constituted a direction or a comment, there are some aspects of it which should be noted.

First, it is expressed as a series of propositions. Most notably, it commences with bald statements of generalised fact. The statement of factual propositions, as distinct from the formulation of hypotheses which the jury may consider, carries with it an inherent risk. As Ashley JA said in R v Marcus Alan Taylor [No 2]:[72]

Whether or not it was unexceptional to explain the direction which was required by s 61(1)(b) generally by reference to ‘common human experience’, what her Honour then did, in substance, in paragraph 2 of her charge … was to take the very situation which was before the Court, and to proffer, as common human experience, an explanation for the complainant having long delayed in making complaint. The matter was put as a proposition, not as a suggestion to the jury that it was an hypothesis which it might wish to consider. To my mind, her Honour there substantially foreclosed any significance in the delay in making complaint by suggesting that common human experience in the particular circumstances explained such delay.[73]

[72](2008) 18 VR 613.

[73]Ibid 622, [42] (emphasis added).

Secondly, the statements in issue are introduced by the words ‘experience shows’. It is not indicated whether this is intended to reflect common human experience, the experience of the courts generally or the experience of the judge herself.

The first is a jury matter and may found a comment; the second commonly founds directions as to how juries should not reason but, for the reasons explained in Azzopardi, cannot readily found directions as to how they should reason in a particular case; the third cannot form the basis of either a proper direction or comment. In my view, there was a very real risk in the present case that the jury understood the judge to be giving a direction from her own experience.

Thirdly, the statements made by her Honour do not differentiate between the complainants. Insofar as the complainants included persons aged 12 and 13 (giving the accused the benefit of the doubt as to their exact age), statements about matters such as ‘the very innocence of a young child’ were inherently controversial.

Fourthly, her Honour stated the factual propositions she enumerated were ‘all matters to take into account’. She did not say they were matters which the jury might regard as relevant. It was for the jury to decide what factual considerations were relevant to the issue of delay. It was not simply their role to give weight to the matters which the judge said were relevant.

Despite these individual matters, however, I accept that ultimately the question is whether the jury would understand the passage in issue as a whole to be a comment about factual considerations which they might or might not take into account as they saw fit in this particular case, or would, on the other hand, have understood the passage to be a direction of the sort fundamentally wrong for the reasons explained in Azzopardi.

In my view, there was a very real and unacceptable risk that the jury would not have understood the statements in issue to be a comment.

First, the statement was not introduced as a comment. It was simply announced as a series of propositions of fact to which the jury must have regard.

Secondly, the statement was not expressed as propositions for which the prosecution contended which, by necessary inference, the jury would understand they must assess for themselves.[74]
[74]Cf the charge in MM [2007] EWCA Crim 1558 (cited in Crown Court Benchbook page 354).

Thirdly, it was not accompanied by a statement of the kind which customarily accompanies a comment, exemplified by that made in the case of MM:

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 commonsense 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 truthfulness of the two girls.[75]

[75]Ibid.

Fourthly, although the trial judge had given a conventional direction concerning the different roles of judge and jury, she had given no general direction with respect to the making of comments.

It is very important that the jury are told that they are not bound by any comment of the trial judge on issues of fact. In R v Mong,[76] Callaway JA said:[77]
[76](2002) 5 VR 565.
[77]Ibid 573-574, [26]-[28].

There is no doubt that a trial judge is entitled to comment on the evidence so long as it has been made clear to the jury that such comments are like the arguments of counsel, to be accepted or rejected as the jury think fit. (A conventional direction along those lines was given at the start of the charge, together with a warning that the jury were not to look to the judge for a hint as to what facts they should find established or as to whether or not they should bring in a particular verdict.) In practice judges are usually reluctant to express their own views about the facts. Even in the present case his Honour’s intention was to assist the jury in their own task of evaluating the evidence.
As the Privy Council said in Broadhurst v R:[78]
The opinions of the presiding judge on issues of fact can often be of great assistance to the jury. But it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility for forming their own view.
Nevertheless, a jury is likely to pay great attention to them: and even in a case where a proper warning is given, an appellate court may still intervene if it considers them far stronger than the facts warrant. In the present case no warning was given; and their Lordships consider also that, even had there been a warning, the Chief Justice went too far in revealing his views, so far that there was a danger of the jury being overawed by them. Their Lordships appreciate that the Chief Justice was anxious only to help the jury to take a true view of the case as he saw it, but unfortunately, in their Lordships’ opinion, he saw it wrongly.

More recently, in RPS v R,[79] 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. [Footnote omitted; emphasis in original.][80]

[78][1964] AC 441, 464.

[79](2000) 199 CLR 620, [42].

[80]See also Azzopardi v The Queen (2001) 205 CLR 50, [50].

In Boykovski and Atanasovski,[81] Crockett and Teague JJ said:
[81](1991) 58 A Crim R 436.

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: see the remarks of the Court in Kerr (No 2) [1951] VLR 239 at 247. Unfortunately his Honour gave no such instruction to the jury.
This of itself would, we think, probably be sufficient to require that a new trial be ordered despite the fact that no specific request for a further direction was sought by counsel at the conclusion of the charge. The failure to warn the jury of its right - indeed, its obligation - to disregard the judge’s comments if they did not appeal to the jury was in all the circumstances such a

fundamental error as to lead us to conclude that a substantial miscarriage of justice has occurred.[82]

[82]Ibid 443. See also R v Mawson [1967] VR 205, 209 (Winneke CJ, Adam and Barber JJ); Mule v The Queen (2005) 221 ALR 85, 87, [6] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ); Smith v The Queen (WASCA) (2008) 67 ASCR 15, 52-54, [148]-[156] (Buss JA), 80-81, [267]-[270] (Miller JA).

A direction is commonly given by trial judges in this State, generally to the effect of that given in another case considered by this division of the Court of Appeal during the Geelong circuit at which the current appeal was heard.

It is my role as the judge to ensure that this trial is fair and conducted in accordance with the law. I will also explain to you the principles of law that you must apply to make your decision. You must accept and follow all of those directions. I want to emphasise to you, ladies and gentlemen, that it is not my responsibility to decide this case. The verdict that you return has nothing to do with me. So while you must follow any directions I give you about the law, you are not bound by any comments, should I make them, about the facts. If I were to make comments, and you were to disagree with those comments, you would disregard them. You would not give them any extra weight because I, as the judge, have made them. I emphasise [then] that it is your view of the facts which matter, not mine. You are judges of the facts, you alone.[83]

[83]Emphasis added.

As counsel for the Crown conceded upon the appeal, no such direction with respect to comments by the judge was given in the present case.

In my view, when this failure is coupled together with the failure to identify the statements in issue as comments or to specifically qualify their consequences as comments, there is a very real possibility that the jury would have understood them as directions.

The trial judge was entitled to identify possibilities which the jury might regard as relevant, but she was not entitled to state propositions of fact to which they must have regard as being correct and relevant to the case.

The jury were not instructed that the comments were made only for their assistance and that it was a matter for them whether they regarded them as

applicable to any of the particular cases with which they were concerned. The jury were not given the very important warning referred in Broadhurst.

In RGM v The Queen,[84] Fullerton J (with whom McClellan CJ at CL and Johnson J agreed) said:

A trial judge has a wide discretion to offer guidance to a jury as to how to approach the evidence of a child witness which should be tailored to meet the particular circumstances of the case and the issues that the jury are likely to encounter in their deliberations. Save only where a trial judge is satisfied that the evidence of a particular child may be unreliable in a particular respect, and that there is a need for the jury to exercise caution in assessing the evidence thereby invoking the exception in s 165A(2) of the Evidence Act, it is important that a trial judge refrain from suggesting an approach to the assessment of a child’s evidence in such a way that it has appearance of a direction of law.[85]

[84][2012] NSWCCA 89.

[85]Ibid [97] (emphasis added).

In NJB v The Queen,[86] the trial judge stated five factors which ‘courts now recognise … in relation to the evidence of children’.[87] The Northern Territory Court of Criminal Appeal held that the critical question was how the jury would have understood the remarks of the trial judge. The Court said:

If it is possible that the jury would have understood that they were required to assess the evidence of the children in accordance with what the trial Judge had said, the trial Judge would have impinged impermissibly upon the function of the jury as the sole arbiters of the facts.

The remarks in question were given at the outset of the summing up. They were expressed in firm and direct terms. Notwithstanding that his Honour told the jury that he was going to talk to the jury ’in a general sense about the weight which may be given to the evidence of children‘, and notwithstanding later directions that the weight to be given to the evidence of the children was a matter for the jury and the jury alone, the remarks presented the five numbered propositions as the incontrovertible view of the court. The presentation of this view was not hedged with any qualification. Nor was it hedged with a direct or indirect statement or implication that it was a matter for the jury whether the jury agreed or disagreed with the five propositions. There was no hint given that it was within the province of the jury to reject any or all of the propositions as the jury saw fit.[88]

[86][2010] NTCCA 5.

[87]Ibid [9].

[88]Ibid [11]–[12].

In the present case, the trial judge directed the jury as to matters that they were to take into account in assessing the complainant’s evidence. It is plainly not only possible but probable that the jury would have understood that they were required to assess the evidence of the complainants in accordance with what the trial judge said. There was no hint given that it was within the province of the jury to reject any or all of the propositions as the jury saw fit.

In turn, there was a very real possibility that the jury regarded what the judge said as a direction rather than a comment. Although no exception was taken to the charge, the judge’s statements were materially prejudicial to the applicant’s chances of acquittal. The fact of substantial delay in the making of any complaint by the complainants was of central significance to the defence. It was very important that the judge’s comments about such delay be identified as such and subjected to the necessary qualification. This did not occur.

Accordingly, I would grant leave to appeal, allow the appeal, set aside the conviction on each count and order a new trial.

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[2012] VSCA 186

16 August 2012