R v FORD - [2006] SASC 311

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FORD
[2006] SASC 311
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Layton)
13 October 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appellant convicted by jury of indecent assault and unlawful sexual intercourse - appeal against conviction - complainant first made complaint about nine years after the alleged events - appellant submitted that trial Judge's directions in summing up to the jury were inadequate - whether trial Judge's Longman direction as to forensic disadvantage occasioned by the delayed complaint was adequate - whether trial Judge was required in the circumstances to give a direction that the jury should acquit if they were unable to choose between the evidence of the complainant and the appellant - trial Judge's direction as to forensic disadvantage from delay was adequate - no direction as to being unable to choose between the evidence was required - appeal dismissed.
Longman v The Queen (1989) 168 CLR 79; Doggett v The Queen (2001) 208 CLR 343; Crampton v The Queen (2000) 206 CLR 161; R v Calides (1983) 34 SASR 355; R v Whittingham (1988) 49 SASR 67; R v Fennell [1999] SASC 179, considered.

R v FORD
[2006] SASC 311
Court of Criminal Appeal: Sulan, Vanstone and Layton JJ

SULAN J: I agree with the reasons of Vanstone J. I would refuse leave to appeal on Ground 1 and dismiss the appeal on Ground 2.
VANSTONE J:
Introduction
The appellant was convicted in the District Court by verdicts of a jury of indecent assault and unlawful sexual intercourse, each committed upon his relative’s son, whom I shall call “V”.
The appeal focused on two aspects of the summing up of the learned trial judge. First it was asserted that the terms of a “Longman direction” given to the jury failed to relate the warning to the facts and was inadequate. On this ground leave to appeal was refused by the single judge and was sought anew from this Court. Secondly it was asserted that this being a case of “oath against oath”, the judge erred in “failing to give the jury a ‘Calides direction’”. On this point leave had been granted.
Background
Although the particulars of the two charges spanned a period of five years, V’s evidence was that the incident from which both charges arose occurred when he was either eight or nine, being in the period August 1995 to July 1997. In those years it was the appellant’s practice to travel from interstate to spend the Christmas break with his relative, V’s mother. The incident was described by V as having occurred during an occasion when the family was having a barbeque on the veranda of their home. The complainant described the appellant coming into his bedroom and closing the door. The appellant proceeded to join V in playing with his Lego. Then he handled his genitals: count 1. He then rolled V over, so that he was face down on the floor, pulled his clothing down and entered his anus. The circumstances suggested that penetration was achieved with the appellant’s penis.
The appellant gave evidence before the jury. While he did not deny staying with the family during various Christmas periods over a number of years, he denied any indecent acts with V. There was no independent evidence to support V’s account.
The Longman direction
By the time V gave evidence he was 18 years of age. In cross-examination it emerged that it was about nine years after the event that V complained to police about the appellant’s actions. Plainly that was a substantial delay. A delay of that extent would be expected to attract a direction as discussed in Longman v The Queen (1989) 168 CLR 79, warning of the forensic disadvantage consequent upon such a time lapse. That would be so irrespective of whether there was corroboration of a complainant’s evidence: Doggett v The Queen (2001) 208 CLR 343 per the majority, Gaudron and Callinan JJ at [45]-[46] and Kirby J at [138].
In this case the judge gave such a warning to the jury in comprehensive terms. In order to appreciate its ambit, I set it out:
(a)We know that [V] first spoke to the police in August 2004, so there is a period of possibly up to nine years between the time of the alleged offences and [V]’s complaint to the police.
(b)I direct you, ladies and gentlemen, that the fact that [V] did not complain about the alleged offences earlier does not necessarily mean that the allegations which he has made are false. [The prosecutor] asked him why he did not complain straight after the alleged offences occurred. [V] said “I just kept it to myself, I don’t know why. I’ve always kept it to myself, always kept things to myself”. While [V]’s delay in complaining does not, as I have said, necessarily mean that the allegations are false, you should consider whether the delay makes you less trusting of his evidence.
(c)Of course, [the appellant] would assert that one obvious reason for the delay in [V]’s speaking to the police about the allegations is that the allegations are false. You should, therefore, consider whether or not you think that the long delay reflects adversely on the credibility of [V] and, in considering his credibility on that issue of delay, you are also entitled to take into account [V]’s age at the relevant time, his personality and the difficulties which he then had and about which we have heard; that is a reference to his learning difficulties and dyslexia. You are entitled to take into account, when considering his credibility on the issue of delay, his relationship with his uncle at that time, [the appellant]’s relationship with [V]’s parents and with [V]’s brothers and sisters, and the possible confusion which [V] may have been caused, given, perhaps, his age, his personality and those relationships to which I have just referred.
(d)There is another very important aspect about the delay. Before turning to that, I remind you that there is no independent evidence to support [V]’s allegations. The prosecution case, of course, rests solely upon [V]’s evidence. [V]’s delay in complaining has had a serious impact of [the appellant]’s position. Owing to the delay, all of the witnesses, and [the appellant] himself, are faced with answering questions about events which are said to have taken place now 10, possibly up to 11, years ago.
(e)Of course, ladies and gentlemen, some events remain clearly in our memories over a very long period, and perhaps forever. Traumatic events which occur are often well remembered, even though the circumstances surrounding them may not be remembered or may not be well remembered. Experience has shown that human memory, and particularly the memory of events occurring in childhood, is frequently mistaken and liable to distortion, and the likelihood of mistake increases as time passes.
(f)If [V] had complained at the time of this alleged offending, then all of the surrounding events would have been alive in people’s memories and available not only for [V] but also for [the appellant] and also for other family members and other people who may have been concerned or connected with the relevant occasion; in particular, of course, the barbecue.
(g)The clear memory of these things would have been made available to [the appellant] to assist him in understanding and possibly in refuting what he has asserted are false charged against him. So, you can see that [the appellant] is placed at a serious disadvantage in defending these charges, owing to the delay in [V]’s complaining about them. For those reasons, I give you the following warning and I ask that you take careful note of it.
(h)I direct you that you should not convict [the appellant] on the evidence of [V] alone without first scrutinising [V]’s evidence with great care and considering all the circumstances relevant to his credibility, as well as to the delay to which I have referred. Only if, after having examined [V]’s evidence with the greatest of care, you are convinced of his truthfulness and reliability may you convict [the appellant].
It will be noted that in his initial direction the judge did not use the word “dangerous” when giving the warning proper at (h). When the summing up concluded counsel for the appellant asked that the warning be supplemented by the addition of that word. The judge was prepared to comply with that request and in doing so reiterated almost the entirety of the reasons for the warning and warning itself. Defence counsel then indicated that he was satisfied with the direction.
In this Court counsel for the appellant focussed on what he said were two deficits in the direction. He submitted that the early parts of it were general observations as to the difficulties caused to any witness in relating events which occurred distant in time. He said to that extent it might have highlighted the difficulties occasioned to the prosecution case by the delay as much as to the appellant. Thereby the benefit to the appellant of such a warning might have been neutralised.
It is true that the early part of the direction I have set out focussed on the question of delay generally. As to the direction in paragraph (b), that is required by section 34I(6a) of the Evidence Act 1929. There can be no criticism of that part of the direction. But in my view nor can there be any justifiable attack on the balance of the direction. It was necessary for the judge to give a context to the warning which would follow. It was helpful in my view to highlight and discuss with the jury the varied effects on the case that delay could have. Furthermore, in pointing out in paragraphs (c) that the delay could be referable to falsity and (d) that the prosecution’s case relied solely on V’s evidence and in (e) that experience had shown that distant memories of childhood events were liable to be distorted or mistaken, the judge was directing the jury specifically in terms of the topics alluded to in Longman at 90-91, by the majority comprising Brennan, Dawson and Toohey JJ and by Deane J at 95-96 and McHugh J at 108‑109.
In paragraphs (f), (g) and (h) the judge explained the central requirement of the Longman warning, being the forensic disadvantage caused by delay, in terms of the facts of the case. He specifically referred to the lost potential of calling as witnesses other persons who may have been present at the barbeque on the relevant occasion and whose evidence might have thrown light on and possibly refuted V’s account. In my mind paragraphs (f) and (g) met the requirement of Crampton v The Queen (2000) 206 CLR 161 at [45] that the judge must give an “unmistakable and firm voice” to the significant disadvantage accruing to the defendant of loss of the forensic weapons that reasonable contemporaneity provides.
What I have said also, I think, disposes of the appellant’s second complaint that the judge failed to relate the direction to the facts, specifying the precise forensic disadvantage sustained by the appellant in this case. Counsel suggested that the judge should have alluded to a possible loss of an alibi, and to the difficulty, if not impossibility, of ascertaining who was at the particular barbeque and where various persons were during the event. However, in my view, there is a fine line between what Longman and Crampton require in terms of explaining the forensic disadvantage which delay can cause, as against putting suggestions to the jury which have no evidentiary base and which could amount to speculation. In this case there was no evidence of, for example, witnesses who had died or witnesses who could not be identified or located and whose evidence might have had a direct bearing on whether or not the incident occurred as alleged. I do not mean to imply that in every case an accused person should be obliged to point to such evidence. The very fact of the impaired memory which delay can cause would often preclude that. But at the same time, to say more than the judge did in this instance would, in the absence of evidence, tend to invite speculation about evidence which was not before the jury.
Counsel also suggested in this connection that the judge should have instanced the lack of any medical examination proximate to the reported anal penetration as being forensic disadvantage caused by delay. However, as was pointed out in argument, that was not a factor confined to the long delay with which Longman was concerned. The jury would have had little trouble concluding that even after a very short period, any sign of penetration would likely have disappeared.
In summary, I consider that the direction was both comprehensive and apt to clearly bring home to the jury the disadvantages faced by the appellant in defending himself against charges levelled so long after the event. I do not consider this ground was reasonably arguable.
Directions on burden of proof
The second ground of appeal complained of the lack of a direction to the effect that if the jury were unable to choose between the evidence of V and the appellant, they should acquit. It was suggested by counsel for the appellant that such a direction was called for because of certain submissions put to the jury by the prosecutor in his final address.
In his address, the prosecutor suggested that the question for the jury was a “stark” one. He suggested that there was “no chance of a mistake or misunderstanding” on V’s account of what had occurred. He posed the question “Do you believe him, or is it one big lie from him?”. That theme recurred in other parts of his address.
In his summing up, the judge gave a summary of the prosecution address, running to about six lines. There, he reminded the jury of the prosecutor’s submission in terms similar to those which I have just mentioned.
Counsel for the appellant suggested that it was the prosecutor’s pitching of the case in such terms that suggested that the jury were called upon to make a choice between the two versions which required a direction from the judge emphasising that the choice was no simple one and that the accused could only be convicted if the jury accepted V’s evidence beyond reasonable doubt. Counsel referred to the judge’s direction on assessing witnesses which did not speak in terms of the onus or standard of proof.
The first point to be observed is that there was nothing intrinsically incorrect or misleading in what the prosecutor put to the jury. It was a valid submission. Nor did the trial judge in his directions say anything which tended to undermine his directions on the burden of proof. It follows that I do not accept that in reiterating the theme of the prosecutor’s address, the judge implied that the jury should disregard the formal directions given to it and conclude the trial on the basis of which version of the event it preferred. Nor do I consider that it would be desirable to import the standard or onus of proof into a general direction assisting the jury as to how to evaluate the evidence of witnesses.
In R v Calides (1983) 34 SASR 355, the vice which was identified by the Court occurred in the summing up. There the judge described the two competing bodies of evidence and told the jury that the two versions could not be explained by any misunderstanding. He told the jury: “It is for you to decide where the truth lies”. After a further exposition on the thrust of the two bodies of evidence he repeated that direction. Wells J, with whose reasons Legoe and Matheson JJ agreed, observed that such an approach could be interpreted by the jury as an invitation to say to which body of evidence they inclined. His Honour said that in circumstances where the impugned passages of the summing up were closely concerned with the essential factual issues it was possible that the jury could have been misled, despite the more formal and correct directions on the onus and standard of proof given elsewhere in the summing up.
Counsel also made reference to R v Whittingham (1988) 49 SASR 67 and R v Fennell [1999] SASC 179. In Whittingham the trial judge had again framed the question for the jury in terms of where the truth lay. But further directions on the burden of proof made it clear that if they were left in doubt about the issue, then a verdict of not guilty would follow.
In Fennell the impugned direction at [6] invited the jury to decide “where the truth lies in this matter, bearing in mind the onus of proof as I will describe it to you” and instructed: “It is your [job to decide] who you think is telling the truth or is not telling the truth”. Elsewhere in the summing up the directions on the burden of proof were clear. It was held that the judge had not left the jury in any doubt as to its task.
The striking feature of these cases is that in each the question was whether a direction given by the judge in summing up misrepresented the jury’s task by suggesting that a mere preference for one of the two competing versions would dispose of the issue.
In this case no direction given by the judge could have raised any such doubt as to the jury’s task. Nor do I consider that the simple reiteration of the prosecutor’s argument could have done so. The directions given by the judge included the following:
Furthermore, nothing but proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt or to show that [the appellant] is probably guilty; he should not be convicted unless his guilt has been proved beyond reasonable doubt.
He also directed that the elements of each charge had to be considered separately and required proof beyond reasonable doubt before the appellant could be convicted. He went on to frame the essential question for the jury in terms of whether the alleged sexual conduct had been proved beyond reasonable doubt. In giving the warning to the jury on delay earlier considered, he told the jury they might only convict the appellant if they were “convinced of [V]’s truthfulness and reliability”.
I would be slow to conclude that a submission by counsel for one side or the other which, though not incorrect, was made without reference to the burden of proof, would necessarily call for a direction by the judge reframing it in the context of the onus of proof. I consider that in this case we are in essence being asked to extend the Calides principle by a significant degree. Each case must turn upon its facts. Here, having regard to the clear, concise and correct directions of the judge, I cannot think there was any room in the minds of the jurors for mistake as to the nature of their task.
Conclusion
I would refuse leave to appeal on the first ground of appeal and I would dismiss the appeal.
LAYTON J: I would refuse leave to appeal on Ground 1 and dismiss the appeal on Ground 2. I agree with the reasons of Vanstone J.