R v EO
[2004] VSCA 41
•2 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 165 of 2002
| THE QUEEN |
| v. |
| EDELSON OLIVAR |
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JUDGES: | WINNEKE, P., BUCHANAN, J.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 March 2004 | |
DATE OF JUDGMENT: | 2 April 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 41 | |
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Criminal law – Sexual offences against child – Whether trial judge’s interventions such as to cause trial to miscarry – Delay in complaint – Whether judge’s directions adequate.
Criminal law – Sentence – Non-parole period not excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. T. Gyorffy | K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr. T. Kassimatis | Portelli & Co. |
WINNEKE, P.:
Notwithstanding the well presented arguments of counsel for the applicant, I have come to the conclusion that the application for leave to appeal against conviction and sentence should be dismissed. I do so for the reasons given by Coldrey, A.J.A., to which I would add some comments of my own. The relevant facts have been set out in the reasons of Coldrey, A.J.A.
There were two issues which arose on this application. The resolution of them requires, perhaps, an understanding that the trial from which the application emanates was in fact a re-trial, following the failure of the jury to agree at an earlier trial. Each trial had involved the same prosecutor and the same defence counsel, who were experienced trial counsel and who, by the end of the second trial were no doubt well acquainted with the issues to be determined and “alive” to the appropriate directions to be given.
This trial, like many of its ilk, involved two major witnesses whose evidence was diametrically opposed; the complainant and the accused. The complainant gave evidence that the accused, her step-father, had been sexually assaulting her, in various houses in which the family had lived, in a systematic fashion over a period commencing when she was nine years old and terminating when she was about 15 years of age in or about 1998. There were ten counts on the presentment, four of “indecent act” and six of “incest”. However, the complainant’s evidence, if accepted, demonstrated an “on-going sexual liaison” throughout the period; thus providing evidence of what are commonly called “uncharged sexual acts”. The trial judge was, thus, required to give directions to the jury as to the use which they could make of that evidence, and the uses to which it could not be put. No objection has been taken to those directions.
The primary ground taken on this appeal was that this was a case in which a “Longman direction or warning”[1] should have been given by the judge to the jury to save a miscarriage of justice. Counsel for the appellant, in his carefully crafted submissions, contended that the directions of his Honour did not go far enough, in the context of this trial, to preserve its fairness. It was submitted that the delay between the commencement of the alleged offending in 1992 and the first complaint made of it in about 2000 put the accused at a distinct forensic disadvantage in a sense which would not be fully appreciated by the jury; namely the loss by the applicant of those means of testing the complainant’s allegations which would have been open to him had there been no delay in the prosecution; including the possibility of exploring in detail the alleged circumstances attendant upon and surrounding the offending and, perhaps, the capacity to adduce evidence to throw doubt upon the complainant’s evidence or to confirm the applicant’s denial[2]. It was further submitted on behalf of the applicant that, in the course of the trial, discussion had occurred between the judge and trial counsel which suggested that the judge was minded to give a warning of the type referred to in Longman. It is true that early in the trial the judge said that he was inclined to give such a warning but that he had not “made up his mind”. There was further discussion whilst the applicant was giving evidence in the course of which trial counsel for the applicant submitted that a “Longman direction” in the standard form should be given; and the prosecutor contended that a direction “tailored to suit the facts of the case” would suffice.
[1]Longman v. R. (1989) 168 C.L.R. 79.
[2]cf. Longman, supra, at 90-1.
The nature of the direction which was given is referred to in the judgment of Coldrey, A.J.A. That direction alerted the jury to the fact that the alleged criminal offending was said to have started in 1992/3, but ceased in or about 1998/9. His Honour told the jury that they should bear in mind that, if complaint had been made earlier – particularly in respect of the “older” alleged offences - it would have been possible for the defence (and the prosecution) to have conducted investigations into “surrounding circumstances” including where and in what circumstances the complainant was living; the fact that recollections would have been clearer; specific dates could have been perhaps recalled and alibis established. Because of the delay, his Honour told the jury, those things could not be done. He also told the jury that they had to take account of the fact that they were listening to an 18 year old young woman who was reciting facts which had occurred, at the earliest, when she was nine years of age; a fact which was not only relevant to her observations but her understanding of, and reaction to, events at the time, thus impacting upon the reliability of her recollection. He told the jury that those considerations were to be taken into account by them and that he was directing them “as a matter of law” that, because there was no supporting evidence of the complainant’s allegations, they should “scrutinize carefully” the evidence and take “full account” of the matters to which he had drawn their attention. His Honour concluded these directions as follows:
“However, after carefully scrutinizing the evidence of the complainant and taking account of the evidence of the circumstances surrounding her account of events with great care, and any other factors that you consider to be relevant, including of course the evidence called by the defence, it remains open to you to be satisfied beyond reasonable doubt of the truth and accuracy of the evidence of [the complainant] or portions of that evidence.”
Counsel for the applicant, on this appeal, contended that these directions were insufficient to meet the circumstances of the case, and should have been attended by a strong direction of law that, in the circumstances, it would be “dangerous to convict” the applicant on such unsupported evidence unless the jury after scrutinizing the evidence with great care, and considering the circumstances relevant to its evaluation and paying heed to the warning being given, were satisfied of its truth and accuracy. Counsel submitted that the direction which the judge gave to the jury was no more than an exhortation to them to do the duty which they were bound to do; and exposed the applicant to the risk, in the circumstances, of a miscarriage. He referred to recent statements made by members of this Court in R. v. W.E.B.[3].
[3][2003] VSCA 205 (18 November 2003); per Charles, J.A. at paras [29] ff.; per Winneke, A.C.J. at paras [46] ff.; and Eames, J.A. at paras [52] ff.
As I have said, counsel for the applicant put his arguments in respect of this matter very attractively. But, after consideration, I do not think they should be accepted. It must be observed that the nature of any warning which is to be given to a jury in any particular case is very much a matter for the trial judge who is familiar with the atmosphere of the trial, and who has the primary responsibility for ensuring that the trial is fair[4]. It is clear from what I have already said that the judge was conscious of the need to give specific directions to the jury to counter the possibility of prejudice due to the lapse of time. He had discussed this matter more than once with counsel. The directions which he ultimately gave were, in my view, appropriate to the circumstances of this trial, insofar as those circumstances can be gleaned from the transcript. The delay between the termination of the alleged offending and the report to police was little more than one year. Although the offending had occurred as early as 1992, most of it was concerned with events alleged to have occurred between 1996 and 1999. The delay between these events and notification to the police (and, thus, to the applicant) was not so great as to create significant prejudice to the applicant; and, thus, to warrant a direction that it would be “dangerous to convict” him on the unsupported evidence of the complainant. Accordingly, it was – in my opinion – sufficient for his Honour to have alerted the jury to the matters which he did; particularly the difficulties which confronted the applicant in respect of the earlier charges and then to have exhorted them, on account of those matters, to bear them in mind whilst carefully scrutinizing the evidence of the complainant. Provided they did that, it seems to me that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. It is of course obvious that no two cases are alike; and it is not possible to argue that, because a “Longman warning” was given in one case, therefore it must be given in another. The facts of the particular case will govern the nature and type of directions which the trial judge believes are appropriate. The facts which confronted the judge in this case were very different from the facts in Longman v. R. (supra) and R. v. W.E.B. (supra). For the reasons which I have given, it is my view
that the directions which the judge gave were adequately tailored to suit the facts of this trial. It would seem that the experienced counsel who appeared were of the same view because neither prosecutor nor defence counsel took any exception to his Honour’s directions in respect of this matter. Having regard to their involvement in the case, and the prior discussions concerning the directions which the judge should give on this very topic, their failure to take exception would indicate that they were each content with the content of his Honour’s directions; and that they did not perceive any miscarriage of justice flowing to the accused as a consequence of them.
[4]cf. Longman v. R., supra, per McHugh, J. at 108-9.
The other ground argued by counsel for the applicant was that the trial had miscarried on account of the judge’s failure to accord natural justice to the applicant, in the form of unwarranted interventions during the course of evidence of the complainant and the applicant. In my view, there is nothing in the complaint about the judge’s intervention during the course of the complainant’s evidence; and – as I understood him – counsel for the applicant did not strongly pursue it on this application. In respect of the judge’s comments during the evidence of the applicant, I agree with the conclusion reached by Coldrey, A.J.A. that no miscarriage in the trial was occasioned by it.
In my view, the application for leave to appeal against conviction should be dismissed. Although, in support of the application for leave to appeal against the sentences imposed, counsel argued that the non-parole period was excessive, I cannot agree that it is. In my opinion, that application, too, should be dismissed.
BUCHANAN, J.A.:
For the reasons stated by the President and Coldrey, A.J.A., I would refuse the applications for leave to appeal against conviction and sentence.
COLDREY, A.J.A.:
On 20 May 2002, the applicant for leave to appeal against conviction and sentence, Edelson Olivar, was convicted by a jury on four counts of wilfully committing an indecent act with a child under the age of 16 contrary to s.47 of the Crimes Act 1958 ("the Act") and six counts of incest contrary to s.44(1) of the Act. The activities, the subject of the counts on the presentment, represented specific incidents in an ongoing sexual relationship between 25 May 1992 and 31 December 1998, when the applicant was aged between 34 and 41 years and the complainant, Flory May Olivar, who was the stepdaughter of the applicant, was aged between 9 and 15 years of age.
The Crown case relied upon the evidence of the complainant. It was her evidence that between May 1992 and May 1993, when she was aged 9 years old and living in a two bedroom flat in Westbury Street, East St. Kilda the applicant took her to his bed, undressed her, and touched her breasts and vagina. He also placed her hand on his erect penis. He then penetrated her vagina with his penis and she started to cry because of the pain this action caused. She ran to her bedroom and the applicant approached her and said that he was sorry, that she was not to tell her mother, and that it would not happen again. At the time the complainant's mother was absent from the premises apparently playing bingo. This conduct was encapsulated in Counts 1 to 3 (Indecent Act) and Count 4 (Incest) on the presentment.
Subsequently, between May 1994 and May 1996, at a time when the family had moved into a three bedroom flat on the 12th floor of a Ministry of Housing tower in Simmons Street, South Yarra, sexual intercourse occurred on a regular basis. The applicant would normally lie on top of the complainant and withdraw from her vagina prior to ejaculation. One such episode occurred in the complainant's bedroom the applicant having placed a chair in front of the door to ensure that her stepbrother and sister (Justin and Jasmin) could not enter. However, on this occasion he failed to withdraw in time. Apparently concerned that the complainant might become pregnant, the applicant ordered her to jump up and down for some minutes apparently in the belief that the jumping might prevent conception. He became angry, shouted at her, and ordered her out of her bedroom telling her to look after the younger children. This constituted Count 5 on the presentment.
Count 6 referred to the penile penetration of the complainant after she and the applicant had decorated a hall at the Simmons Street Housing Commission flats for her 13th birthday celebration.
On that occasion the applicant took the complainant into a small room off the hall which had a door that could be locked. He made her get up on a table in the room, pulled her jeans down to her ankles and he then put his penis in her vagina. According to the complainant he ceased this activity, possibly having heard someone coming, and said to her: "Happy birthday."
When the family moved to an address at Glencannon Crescent in Clayton South, the complainant again had her own room. She told the jury that the applicant had sex with her on many occasions during this time. She deposed to an incident where the applicant had let himself into her bedroom, taken all his clothes off and made her do the same. He then had sex with her. Initially he was on top but later he placed the complainant on top of him. He asked her if anyone had done that to her before, if she liked it and if it felt good. She did not respond. These actions are encompassed in Counts 7 and 8 of the presentment within the time frame of 1 September 1996 to 31 December 1998.
The activities giving rise to Counts 9 and 10 on the presentment were said to have occurred at the Clayton South premises also between 1 September 1996 and 31 December 1998. The first of these involved an act of sexual penetration when the applicant came into the complainant's bedroom and, after making her take off her clothes, and feeling her breasts and vagina, ultimately began to lick the inside and outside of the complainant's vagina. Again he asked if anyone had ever done anything like this to her before and if it felt good. She told the Court that she did not respond. The second, and final, incident charged involved the applicant taking the complainant to his bedroom and making her lie down on the bed. He then endeavoured to force her mouth onto his penis. She resisted strenuously.
The evidence of the applicant was that she ultimately left the Clayton South home. Although the date is unclear, it seems to have been in late 1999 or early 2000. The complainant told the jury that her departure followed a heated argument with the applicant. On this occasion her mother was absent from the premises. However, when she came home the complainant informed her of the applicant's sexual activities. Her mother confronted the applicant with the allegations and he denied them. The mother was not called at the trial. The complainant also asserted that she had told a boyfriend named Con about the activities of the applicant some time in 1999. At some stage she was in receipt of counselling as a result of sexual abuse by another male person who ultimately pleaded guilty to a number of offences. It appears that arising out of this the police were contacted in early May 2000. On 16 May, the complainant made a statement in which she indicated that she did not want police to take action at the time or make a full statement about what happened. In that statement she said that she felt she needed more counselling and more time to think things through. Subsequently, on 8 June, the complainant made a detailed statement to the police.
There were a number of issues raised in cross-examination of the complainant. It was put, for example, that, up until the family moved to Clayton South, she had lived with an auntie in Prahran only coming home at the weekends or school holidays. This was denied by the complainant although the auntie, Ms Pacita Angelin, who was called to give evidence on behalf of the defence, tended to confirm the defence assertion. Such a state of affairs would, of course, have limited the opportunity for the alleged sexual abuse, but not have eliminated it. Further attacks were made on the credibility of the complainant through the production of undated letters in affectionate terms, one being to her mother and the applicant and the other solely to the applicant. Photographs apparently taken on the complainant's 16th birthday in May 1999, and on Christmas Day 1999, were produced both showing the complainant smiling in the presence of the applicant and a Christmas card to her mother and the applicant, couched in terms of love and, in effect, wishing them a wonderful 2000. Taxed with such matters, the complainant essentially said that it was a love/hate relationship that she had with the applicant. She also said:
"You were living two lives there, it is the father you only know, and at the same time, he is doing these things to you. You were put in a very hard position. You were scared. Do you say anything when you're a kid?"
Earlier the witness had given evidence that the applicant had assisted her with her homework, and stopped her getting into trouble with her mother so that she would not talk. The complainant also said that, in conversations with the applicant at Simmons Street, he would apologise, say that it would not happen again and that she did not have to tell anyone. However, the same thing occurred over and over again. Such matters as the delay in informing a third party about the applicant's conduct and the absence of any reference to sexual activity in a diary note the complainant had written about her 13th birthday (albeit the note had been written in the following July) were canvassed. In short, the credibility of the complainant was thoroughly tested during a comprehensive cross-examination.
The applicant gave evidence in which he denied any misconduct with the complainant.
The jury, having assessed the honesty and reliability of the protagonists, found the applicant guilty on all counts.
There was a plea hearing on 23 May 2002, following which, on 24 June 2002, the applicant was sentenced to periods of imprisonment as follows: Counts 1, 2 and 3 (Indecent Act) 12 months on each; Count 4 (Incest) 2 years and 6 months; Counts 5, 6, 7, 8 and 9 (Incest) 2 years on each count; and Count 10 (Indecent Act) 12 months. Although perhaps not happily worded, the sentencing judge effectively ordered periods of cumulation on Count 1 as follows: Count 2, 3 months; Count 3, 3 months; Count 4, 18 months; Count 5, 12 months; Count 6, 12 months; Count 7, 6 months; Count 8, 6 months; Count 9, 12 months; and Count 10, 6 months. This resulted in a total effective sentence of 7 years and 6 months and the judge fixed a non-parole period of 5 years and 6 months. A period of 35 days was declared as being pre-sentence detention. I interpolate that the maximum sentences for the offences of committing an indecent act and incest were 10 years and 20 years respectively.
It appears that notices of application for leave to appeal against, respectively, conviction and sentence were signed and filed in July 2002. On 25 February 2004, leave was granted by the Registrar of the Court of Appeal to substitute the following grounds of appeal against conviction:
"1.The trial miscarried by reason of the learned judge's interventions and, in particular:
(a) the nature and timing of them;
(b)his refusal or failure to afford counsel an opportunity to be properly heard during the first of them;
(c)the judge's demeanour when effecting them and the impression it created;
(d)their effect on the perceived credit of the (then) accused.
2.The trial miscarried by reason of the learned judge's having not adequately directed the jury about:
(a)corroboration and the uncorroborated evidence of the complainant; and
(b)delay
and, in particular, by his having failed to warn the jury that it was dangerous to convict the (then) accused.
3.The trial miscarried as the consequence of the aggregate effect of the errors alleged in grounds 1 and 2.
4.The verdict of the jury on all counts was unreasonable or cannot be supported having regard to the evidence; or, upon the whole of that evidence, it was not open to the jury, properly directed, to be satisfied beyond reasonable doubt that the applicant was guilty."
I note that ground 4 was not pursued on this application.
Insofar as the application for leave to appeal against sentence was concerned there were originally two grounds:
"1.That the learned judge erred as to the extent of the cumulation ordered and, as a result, imposed a total effective sentence that offends totality.
2. The learned judge erred in failing to:
(a)impose a sentence that allowed greater disparity between the total effective sentence and the non-parole period;
(b)give discrete consideration, at all or sufficiently, to the fixing of the non-parole period; and
(c)give reasons for fixing the non-parole period."
Ground 1 was not argued before this Court.
I turn to deal first with the grounds relating to conviction, all of which were tenaciously argued by Mr Kassimatis.
Given the breadth of the propositions enunciated in ground 1, it is appropriate to set out, and place in context, each of the judge's interventions. The first exchange followed upon the complainant confirming her committal evidence that, as a result of the applicant's unwelcome sexual attentions at her 13th birthday on 26 May 1996, she had written in her diary that she was sick of him touching her. She was then shown a notebook by defence counsel which purported to be a diary and was asked to read out the relevant entries in it. There was, in fact, no specific reference to any sexual abuse in her notes about the birthday party (albeit the entry was not made until 25 July 1996).
Obviously the witness was anxious to explain what might be characterised as a significant omission which undermined her earlier answers about having recorded the incident. This became apparent as the cross-examination continued:
"Counsel:You were writing in your book about your birthday party and certain things that occurred at this birthday party?
Witness:Yes. It is one of my little notes have [sic] disappeared over the time. There is actually a few pages missing in that book, if you don't know. There is.
Counsel:Thank you very much. That, I would suggest to you, is the sum total of your written record of what happened on your birthday. What do you say about that?
Witness:I say that I have kept quite a few little notebooks like that.
Counsel:Thank you.
Witness:That was dated in June [sic], so I could have written in another book about other things.
Counsel:I said thank you.
Witness:I actually don't know, because a lot of my things do go missing. I never had any privacy. He went through all my crap, so – and, like I said before, that his – where did you get that from?
Counsel:(Indistinct).
His Honour [mentioning counsel's name]:
Counsel:It is a non-responsive answer.
His Honour: What do you wish to say, please?
Witness:I wish to say that diary had been missing and obviously he has had – that is where they got it from.
Counsel:Your Honour …
His Honour: You have asked about this document.
Counsel:Your Honour …
His Honour: And what is in this and what is not in the rest, and suggested that this is the only record that there is …
Counsel:Well, with respect …
His Honour: I will allow the witness to give her answer. Yes would you continue?
Witness:There are a lot of things of mine that have gone missing, and he can't say that that is the only thing that I have written down on that date because where did he get that from? Obviously he has kept it. A lot of my things did go missing. There are pages that have been ripped out from that book. If you look, this is meant to be how many pages in the book, there isn't. There are things ripped out.
His Honour: Yes, thank you.
Counsel:Thank you, your Honour. Now, is there is any reason that you can tell us, please, why you haven't made a reference in that diary entry to this sexual assault you say that occurred?
Witness:Because that was not the only diary that I kept."
There is then further cross-examination about the omission from the diary entry of any allegation of sexual molestation and the response that the incident may be recorded in other diaries is repeated.
At the time of this cross-examination two matters are obvious. First, the diary had come into the possession of the defence, and secondly, pages were missing from it. Although the witness' answers went beyond the narrow ambit of counsel's questioning, and to that extent were unresponsive, they did contain an explanation for the diary omission. Moreover, the explanation proffered, could have been elicited in re-examination. His Honour obviously took the view that the witness ought to be permitted, at that stage, to provide an answer to an attack being made upon her credibility. The exchange obviously occurred relatively spontaneously and occupied a short time span.
In the application for a discharge of the jury, made by counsel three days later, it was made clear by him that this incident alone would not have given rise to such an application. This concession was properly made. To characterise the intervention of the judge as both partisan and as constituting a breach of procedural fairness is to draw a long bow indeed. In my view there is no substance in this complaint.
I turn to the second intervention by the judge which occurred during the cross-examination of the applicant and, it was submitted, was such as to cause the trial to miscarry.
In essence it was put that the judge took over the cross-examination thereby stepping into the forensic arena. Moreover, the judge's demeanour, treatment of the applicant, and apparent annoyance with him, created a real risk that the jury would discern that the judge had formed an adverse view of the applicant's credit. This in turn may have influenced the view that the jury itself took of the applicant.
The questioning at this point was concerned with whether the applicant's signature appeared on a registration form submitted as a prelude to the complainant attending at Presentation Convent, Windsor. The evidence indicated that this had occurred in May 1995 and its relevance was to make it more probable that, at that time, the complainant was residing with the family (including the applicant) at Simmons Street, South Yarra, which was the address on the registration form. The relevant passage is as follows:
"Counsel:Does your signature remain the same over the years?
Witness:Oh, I, I know my signature – yes, not really, like that, but this one is …
His Honour: Is that your signature, Mr Olivar, or not? Most people know what that – would you just listen to me, please?
Witness:No, it's not my signature.
His Honour: Would you listen to me, please?
Witness:Yes, sir.
His Honour: Most people know what their signature is?
Witness:This is – signature is not my …
His Honour: Would you please stop talking against me, do you understand?
Witness:Sorry about that.
His Honour: Most people know what their signature looks like. Now, would you look to the signature next to 'father' and tell us whether or not you believe that that is your signature?
Witness:No, this is not my signature, sorry."
At this point the Crown Prosecutor resumed his questioning.
There is no video record of this exchange but it is tolerably clear from the transcript that, following the point at which the judge intervened to ask whether or not the applicant was stating definitively that it was not his signature, both parties are talking over one another. After that verbal entanglement the judge effectively repeated his initial question.
At the time that the applicant's counsel eventually sought the discharge of the jury he submitted that the judge had become angry with the applicant and that he, counsel, would even go so far as to say that the judge shouted at him. The result, so it was said, was to indicate to the jury that the judge had formed the opinion that the applicant was prevaricating. Other colourful phrases were employed by counsel to make the same point. Putting aside the assertion of judicial bias or perceived bias, the bottom line of counsel's argument was that the judge had effectively destroyed the applicant's credit before the jury with fatal consequences in a trial relying upon witness credibility.
It is perhaps trite to observe that the precise nature of a judge's behaviour in the heat of battle in the trial arena is very much in the eye of the forensic beholder. Thus the Crown Prosecutor remarked:
"that … in relation to any annoyance that your Honour may have expressed, it was in relation to the witness talking over you."
Later, the prosecutor added:
"The only time that annoyance was expressed is when you weren't allowed to put the question to him."
The judge himself commented:
"If I displayed any annoyance when the accused was giving evidence it was on the basis the accused was talking over me, which is something that I am not accustomed to experiencing in court."
I am quite unable to conclude that the judge's intervention had the disastrous potential which is asserted. Any questioning by the judge was of short duration, was arguably designed to clarify the topic then under discussion and any irritation demonstrated may sensibly be linked to the fact that the parties were talking over each other.
It is also arguable that any sting that this exchange may ostensibly have possessed could be regarded as having been nullified by the subsequent failure of handwriting experts to agree on the authorship of the signature on the school registration form. Consequently the judge instructed the jury:
"It would be wrong for you, as lay persons without professional skills or training, to attempt any such [handwriting] examination. So my direction to you – and this is a direction in law – is that you are to totally disregard the issue as to who was the author of the signature that appears on Exhibit B, the school application [sic] form. It is simply a matter that may no longer be before you and you are to disregard that issue …"
As a result, the exhibit was withdrawn from the jury. It was, of course, made clear to the jury in his Honour's charge that fact finding was a matter for the jury and that any judicial comments on the evidence carried no weight. Indeed, it is not suggested that the judge made any comments adverse to the applicant in the charge.
The interventions referred to in this case are, in my view, in a different realm from those in such cases as R. v. Mawson[5] where a husband was charged with common assault and two counts of false imprisonment of his wife and the trial judge asked 268 questions of the complainant (compared to a total of 238 questions asked by counsel combined) and, during the evidence of the accused, asked 165 questions compared with 150 questions of both counsel. Additionally, in his charge to the jury in that trial the judge, in putting the accused's defence, repeated the salient features of the Crown case by way of demolition of the defence and expressed his own views in such terms as to indicate his opinion that there was no real defence to the charges. Similarly, in R. v. Nation[6], a case involving charges of theft, there were numerous interruptions of defence counsel by the trial judge which the appellate court found were unnecessary and inappropriate. The judge also commented adversely in the course of his charge upon defence counsel's final address, and failed in his charge to make proper references to evidence adduced in cross-examination upon which the defence case depended. In R. v. Esposito[7], a murder trial, the trial judge cross-examined the accused extensively testing the truthfulness of the accused's answers. A comment made by Wood, C.J. at C.L. is instructive (p.56):
"The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties."
In each of the above cases a retrial was ordered.
[5][1967] VR 205
[6](1992) 78 A.Crim.R. 125
[7](1998) 105 A.Crim.R. 27
In the recent Victorian case of R. v. Mathe[8], which was a rape case, the trial judge (inter alia) made a number of highly critical comments of the defence counsel's final address in the course of his charge. Notwithstanding this, and other verbal clashes between the judge and defence counsel during the course of the trial, the Court was not satisfied that the judge's conduct amounted to a denial of procedural fairness or bias such as to amount to a miscarriage of justice.
[8][2003] VSCA 165
These authorities, which constitute a selection of decisions in this area of the law, exemplify a lack of judicial restraint which contrasts vividly with the present case and serves to reinforce the conclusion that ground 1 is not made out.
The next ground argued (ground 2) was essentially that the trial judge had failed to adequately direct the jury in the manner required in cases such as the instant one. It was submitted that the appropriate directions were set out in the oft quoted passage of Brennan, Dawson and Toohey, JJ. in Longman v. R.[9] (p.90-91):
"There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts, the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment of the complainant's failure to complain should include (as indeed s.36BD requires) that there may be 'good reasons why victims of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence'. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them; [case cited] that factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay [case cited] and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation in paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."
[9](1989) 168 C.L.R. 79 (See also Crampton v. R. (2000) 206 C.L.R. 161).
In the same case, McHugh, J. stated (p.108-109):
"[T]he present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over 20 years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, the likelihood of error increases with delay, and the complainant had testified concerning incidents occurring to her as a young child after she had woken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the offence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge."
In that case, of course, the complainant was aged 6 at the time of the first alleged sexual assault and aged 10 at the time of the second. She first complained to the police 20 years after the latter assault and, at the time the complainant gave evidence in the trial, some 26 years had elapsed from the first of the alleged assaults.
In the instant case the judge was alert to the need for a Longman direction and indicated his intention to give one. In doing so, he also had to have regard to the strictures of s.61 of the Act which applied to the present offences. It relevantly reads:
"…
(a)the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and
(b)if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge 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.
(2)Nothing in sub-section (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 sub-section (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which sub-section (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial."
It has been acknowledged that there is no immutable formulation of a Longman warning and that it must be fashioned (or appropriately tailored) to the facts and circumstances of each individual case. It needs to be understood that there is no standard strength Longman warning which may be diluted by judicial error or omission. In all cases it will be a matter of degree. However, such warning must be given with the clear authority of the trial judge with the objective of ensuring a fair trial and the avoidance of a miscarriage of justice.[10]
[10]See R. v. M.C.G. [2001] VSCA 17 at paras.[85]-[86] and R. v. W.E.B. [2003] VSCA 205 (Charles, J.A. paras.[29]-[35], Winneke, P. paras.[46]-[50] and Eames, J.A. paras.[53]-[56]).
Here the facts of the case involved alleged offences commencing between May 1992 and May 1993 when the complainant was 9 years old whilst the final five counts on the presentment involved offences occurring between May 1996 and December 1998 when the complainant was aged between 13 and 15 years.
The evidence indicted that in late 1999 or early 2000, the complainant had complained to her then boyfriend Con about the applicant's sexual abuse. There had also been the confrontation when she had told her mother about the applicant's behaviour following the argument with him. In any event in May 2000 the police were contacted and a formal statement was made in June 2000 – that is within 18 months of the last alleged offence.
It is clear from the foregoing that the facts which faced the judge were not only radically different from those in Longman's case but involved striking a balance between the remote and recent offences. The offences themselves were not sporadic but were set in the matrix of a continuing sexual liaison. The complaints to the mother, the boyfriend and to police were made comparatively recently to the final offences. Indeed, whether a Longman direction would have been required on the last five counts on the presentment is problematic.
In the course of his charge, the judge clearly instructed the jury that the prosecution case was dependent upon an acceptance of the complainant's account beyond reasonable doubt. Whilst instructing the jury in accordance with s.61(1)(b) of the Act he nonetheless pointed to the long delay between the earlier allegations of offending and the making of any complaint. In terms of a Longman warning the trial judge had this to say:
"I give you a further direction in law in relation to the evidence of the complainant, May Olivar. There are a number of factors that you are to take into account in relation to her evidence.
Firstly with respect to each count before you, apart from the admissions made on behalf of the accused, the prosecution relies entirely on the evidence of the complainant, to establish the elements of the prosecution case. There is no independent evidence to support the complainant's allegations and that is an important consideration for you to keep in mind.
As I have already reminded you, it is alleged that these offences commenced in the period May 1992 to May 1993. The last offence is alleged to have been committed in the period September 1996 to December 1998. Had these allegations, in particular the allegations as to earlier conduct, been made earlier or shortly after they were said to have occurred, it would have been possible for the prosecution and the defence to conduct investigations into the surrounding circumstances, the physical circumstances, evidence as to where, for example, May Olivar was living, whether it was with her aunt or with her parents, might have been more readily available. Recollections might have been clearer. More specific dates might have enabled the accused to call alibi evidence. None of those things could be done, because of the delay.
At the time of the alleged offences May Olivar was aged between 9 and 15 years. She is now almost 19. That is relevant to her observation, understanding and reaction to the events at the time. It is relevant now to the reliability of the complainant's recollection of the events.
In the light of these considerations that are to be taken into account by you, I direct you, as a matter of law, that since there is no independent evidence that supports the allegations made against the accused, you should carefully scrutinise the complainant's evidence taking full account of the matters that I have drawn to your attention.
However, after carefully scrutinising the evidence of the complainant and taking account of the evidence of the circumstances surrounding her account of events with great care, and any other factors that you consider to be relevant, including of course the evidence called by the defence, it remains open to you to be satisfied beyond reasonable doubt of the truth and accuracy of the evidence of May Olivar, or of portions of that evidence. If you so decide, then you can convict the accused on one or more or all of these counts, if you so decide."
It was conceded by Mr Kassimatis that the judge correctly emphasised the Crown reliance upon the unsupported evidence of the complainant and that he identified the long delay between the earlier allegations and the complaints. Further, the judge correctly drew the jury's attention to the difficulties to both prosecution and defence occasioned by the delay in lodging any complaint, namely the conduct of investigations into the surrounding circumstances such as the complainant's place of residence and as to specific dates which may have enabled the applicant to call alibi evidence. Moreover, the judge adverted to the complainant's age at the time of the alleged offences and its relevance to her observation, understanding, reaction and reliability of recollection. It was also conceded that the judge admonished the jury to carefully scrutinise the complainant's evidence. It was not, and could not, be suggested that the judge did not clothe those warnings in the raiment of judicial authority. Nonetheless it was argued that there was a failure to specifically direct the jury that, because of the delay and absence of support for the complainant's account, that account could not be adequately tested, and as a result the applicant had been disadvantaged. Additionally, it was asserted that there had been failures to warn the jury of the potential for error in the complainant's evidence and the dangers of relying upon the complainant's unsupported childhood account in the context of the long delay.
Without descending to a line by line semantic analysis of that portion of his Honour's charge that I have just quoted, I am satisfied that each of these matters was adequately addressed by the judge.
Finally, it was submitted that the judge had failed to warn the jury, in terms, that it was dangerous or unsafe to convict the applicant.
If the type of direction required to be given in this trial falls under the general rubric of a Longman warning – and the arguments of counsel assume that it did so – it is not my view that an essential element of every such warning is that the jury be told it is dangerous or unsafe to convict the accused on the uncorroborated evidence of the complainant. Put another way, the circumstances of this case did not require a warning of the comprehensive type that was given in Longman's case. I have already recited the factual differences between the two cases and the balance the trial judge sought to strike in dealing with the temporal spectrum of charges. Ultimately he instructed the jury that they "should carefully scrutinise the complainant's evidence taking full account of the matters that I have drawn to your attention." This was not scrutiny in a vacuum; this was scrutiny bearing in mind the potential dangers and weaknesses which the judge had enunciated. In my view the directions his Honour gave were sufficient in this case to achieve a fair trial which is the rationale of warnings of this type.
I should add that it is not without significance that neither the experienced defence counsel, nor the Crown Prosecutor, took exception to the direction which it is now sought to challenge. It follows that ground 2 must fail as must ground 3 which relies upon the aggregate effect of the preceding grounds. Accordingly, the application for leave to appeal against conviction should be dismissed.
The applicant also sought leave to appeal against the sentence imposed upon him. The sole ground argued before this Court was, effectively, that the non-parole period fixed by the judge was excessive.
It was first submitted that the sentence of 7½ years with a minimum period of 5½ years represented an unusually high non-parole period. It may be shortly stated that on any examination of sentencing statistics this proposition cannot be maintained. It follows that what was characterised as a failure of the judge to expressly justify the disparity between the head and minimum sentences cannot be seen, ipso facto, as betokening sentencing error.
The principles apposite to the fixing of a non-parole period have been enunciated in such cases as Power v. R.[11] by Barwick, C.J., Menzies, Stephen and Mason, JJ. where the purpose of fixing a non-parole period was stated as being:
"to provide for the mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines that justice requires that he must serve having regard to all the circumstances of his offence."
As the authorities make clear, a non-parole period has a penal element and must also appropriately reflect the importance of such principles as specific and general deterrence. The prisoner's prospects of rehabilitation will also be a significant consideration. Moreover, whilst those factors in the material before a court which bear on the question of eligibility for parole require discrete consideration, there is no imperative for a sentencing judge to give specific reasons for the length of the parole period. If the disparity is truly unusual it may be advisable to do so, but the factors giving rise to the length of such period will normally be readily apparent from the circumstances of the individual case.[12]
[11](1974) 131 C.L.R. 623 at 629 (See also R. v. Morgan and Morgan (1987) A.Crim.R. 146 at 154 and Bugmy v. R. (1990) 169 C.L.R. 525 at 531).
[12]For a discussion on this aspect of sentencing, see the remarks of Winneke, P. in R. v. Mulvale quoted by Batt, J.A. in R.v. Sener (1998) 3 V.R. 749 at 752.
It is perhaps trite to add that there is no mechanistic approach to the fixing of non-parole periods by resort to a sliding scale of percentages dependent upon the length of the head sentence imposed. Each case will necessarily be different and governed by the individual circumstances of the offence and the offender.
In the present case the applicant was to be treated as a serious sexual offender by virtue of s.6B of the Sentencing Act 1991. This necessitated that the protection of the community be accorded primacy in the mix of sentencing principles. In his reasons for sentence the judge also had regard to the effect of the offences on the complainant who had lost the support of her mother and aunt, as well as the need for the deterrence of those minded to sexually abuse children. The judge also took into account the applicant's good work record and lack of prior convictions, and he ultimately considered it unlikely that the applicant would re-offend. However, the offences themselves were extremely serious ones involving a breach of parental trust over an extended period of time. The fact that the applicant maintained his innocence meant that he could not call in aid any expression of remorse. Furthermore, the material in the plea in the form of a Victim Impact Statement indicated that the applicant's actions had left the complainant emotionally devastated.
In summary the present offences required condign punishment. This was recognised by the judge who also, as I have indicated, took into account those factors favourable to the applicant. In all the circumstances I am quite unable to conclude that the non-parole period fixed by his Honour was beyond the sentencing range open to him.
It follows that I would also refuse the application for leave to appeal against sentence.
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