R v FVK
[2002] VSCA 225
•20 December 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 309 of 2000
| THE QUEEN |
| v. |
| FVK |
---
JUDGES: | PHILLIPS, C.J., ORMISTON and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 and 27 August 2002 | |
DATE OF JUDGMENT: | 20 December 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 225 | |
---
CRIMINAL LAW – Evidence – Adequacy of directions – Sexual offences against child – Delay in complaint – Corroboration – Whether adequate Longman warning – Longman v. The Queen (1989) 168 C.L.R. 79.
CRIMINAL LAW – Sentence – Whether judge failed to give sufficient weight to factors of rehabilitation and other matters – Total effective sentence of seven years six months with non-parole period of five years, not disturbed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G. Meredith | Rainer Martini & Assoc. (Vic. Legal Aid) |
PHILLIPS, C.J.:
The applicant, who is now aged 49, was convicted in the County Court at Melbourne on 15 September 2000 on three counts of common assault (counts 1, 2 and 14 on the Presentment); six counts of committing an indecent act with a child under 16 (counts 3, 5, 8, 10, 12 and 13 on the Presentment) and six counts of incest (counts 4, 6, 7, 9, 11 and 15 on the Presentment). These offences which, variously, carried maximum penalties of five years’ imprisonment, ten years’ imprisonment and 25 years’ imprisonment, were said to have been committed at Boronia between the first day of January 1995 and the 30th day of June 1998.
The applicant had no prior convictions and, after hearing a plea for leniency, the learned judge sentenced the applicant to one months’ imprisonment on each of counts 1 and 2, six months’ imprisonment on count 3, eighteen months’ imprisonment on count 4, six months’ imprisonment on count 5, two years’ imprisonment on each of counts 6 and 7, twelve months’ imprisonment on count 8, three and a half years’ imprisonment on count 9, twelve months’ imprisonment on count 10, five years’ imprisonment on count 11, twelve months’ imprisonment on each of counts 12 and 13, two months’ imprisonment on count 14, and two years’ imprisonment on count 15. His Honour ordered that two and a half years of the sentence on count 9 was to be served cumulatively with the sentence on count 11.
The total effective sentence was seven and a half years’ imprisonment. His Honour fixed a non-parole period of five years and made a declaration of 17 days pre-sentence detention. Another declaration, which categorised the applicant as a serious sexual offender from his conviction in respect of count 5, was also made.
Subsequently, the applicant lodged notices of application for leave to appeal against conviction and sentence. As to the former, leave was granted by the learned Registrar on 19 August 2002 to amend the grounds therein by substituting the following grounds.
“1. The trial judge erred in failing to sever the counts that related to non sexual offences, namely assaults being counts 1, 2 and 14 from the remaining counts which were for sexual offences.
2. The trial judge erred in admitting into evidence, evidence of:
(a) uncharged acts of assault and of sexual activity.
(b) portions of the complainants VATE tape.
(c)portions of conversation between the applicant and the witness “K.K.”.
3. The trial judge failed to adequately direct the jury on the use the jury could make of evidence of
(a)Uncharged acts of assault and of sexual activity.
(b)Portions of the complainants VATE interview.
(c)Portions of conversation between the applicant and the witness “K.K.”.
4. The trial judge erred in his directions to the jury concerning
(a)The manner in which they ought scrutinise, treat, and or consider the evidence of the complainant.
(b)The dangers of basing a conviction upon the evidence of the complainant.
5. The trial judge in directing the jury, failed to warn the jury sufficiently as to
(a)the manner in which they ought scrutinise, treat, and or consider the evidence of the complainant.
(b)the dangers of basing a conviction upon the evidence of the complainant.
6. The trial judge failed to adequately direct the jury on the use of prior inconsistent statements of witnesses.
7. The trial judge failed to adequately direct the jury on the delay of the complainant in making a complaint about the conduct of the applicant.
8. The trial judge erred in directing the jury as to
(a)the nature of evidence which could be said to be corroborative of the evidence of the complainant.
(b)the matter in which they jury ought to deal with the evidence which was said to be capable of being corroborative of the complainant.
9. In all the circumstances the conviction of the applicant was unsafe and unsatisfactory.”
On this application, grounds 1, 3, 6 and 9 together with grounds 2(a) and 2(b) were effectively abandoned. Grounds 4 and 5 were argued together and it was allowed that ground 2(c) was dependant upon ground 8 being upheld.
As to the notice touching sentence, 14 grounds were pleaded, but only one, ground 8, was argued. It reads:
“Ground 8 – The learned sentencing judge erred in the exercise of his discretion in that he did not give sufficient weight to:
(a) The applicant’s personal circumstances.
(B) The applicant’s previous good character.
(c) The applicant’s psychological and physical condition.
(d) The issue of rehabilitation.
(e) The applicant’s cultural background.
(f) The applicant’s lack of prior convictions.”
It is now necessary to set out in summary form the facts of this matter and the evidence adduced at the applicant’s trial where he remained mute and led no other evidence in support of his defence.
In this exercise I have had recourse to the summary of evidence supplied to the Court. The content of this has not been the subject of any dispute.
The complainant, born on 23 November 1985, is the natural daughter of the applicant. A trial witness, “K.K.”, is the stepmother of the complainant and the wife of the applicant. The complainant had only come from Romania to Australia to live with her father when she was in Grade 3. On 14 January 1999 the complainant participated in a video-taped police interview in which she detailed allegations of sexual offences and assaults allegedly committed upon her by her father in the period 1 January 1995 to 30 June 1998. At the trial of the applicant, an edited version of that interview was played to the jury and tendered as Exhibit A. The offences were all alleged to have occurred in a house in an Eastern suburb of Melbourne.
The complainant was aged 13 at the time of her VATE interview, and about to commence Year 8 in secondary school.
The complainant stated “the whole thing started when I was around 10 towards the end of Grade 4, and I think he started - like … coming into our bathroom when I'm taking a bath, and saying that he'll wash me and while he's washing me, he feels me as well.” She added “he feels my … breasts and he … fingers me - the outside.” She thought her breasts had started to develop when she was in Grade 5 or 6.
The complainant agreed that there was a lock on the bathroom door. She may have used it a couple of times. In the committal she had conceded she did not know why she had not used the lock.
The complainant stated that sometimes the applicant had drunk alcohol before the offending, but on other occasions he had drunk nothing. She did not consider he had been drunk during the offending.
In oral testimony before the jury the complainant confirmed that when she referred in interview to her “private part”, she meant her “vagina”.
Counts 4, 7 and 15
The complainant described three incidents when the applicant had, on the pretext of checking her virginity, digitally penetrated her vagina, (counts 4, 7 and 15).
She stated “he's checked if I'm a virgin three times”. The first occasion “was at the start or towards the middle of Grade 6” when she was 11 years old. She said “We were watching TV and he started feeling my breasts (Count 3) and he said playfully that, `I hope you don't go off with boys and that and I have to check to make sure.’ They were in the living room and he put her on the table, which was a normal “tea table” with “stoney stuff” on the top. She said “[he] made me …spread my legs and then he put his little finger in a little way… [i]n my vagina.” She said to him “That hurts". In interview she stated “after a while he stopped and said, `Okay. You haven't been with anybody.’" She had been wearing trousers, and under his instructions, she had removed those and her “undies” (count 4).
The complainant stated that no-one else was home at this time. Her mother was at work and her brother “went out somewhere”.
Addressing the digital penetrations generally, the complainant stated that she knew the applicant had used his little finger to penetrate her, because he had showed her and told her that "It won't hurt that much, cos it was his little finger”, and she had also seen him use it.
The complainant stated “The second time was the same. He only put his finger in my vagina a little way”. She said that this occurred towards the end of Grade 6, in 1997, when she was “probably about turning 12 or just turned 12.” This incident also happened in the living-room on the table. She said “Well, we were watching TV as well and I can't really remember anything else.” Her mother was at work. She generally left for work at 6 p.m. if working overtime, or otherwise at 8.30 p.m, and would return home between “20 to 5.00 and quarter to six in the morning” (count 7).
The complainant also stated “The third time my mum was going to work and my brother was out and it happened in the bathroom and I was just getting out of the bath and he said that he needs to check it again to make sure that I haven't gone off with any boys and first he made me - I - I wasn't wearing any clothes 'cos I had just got out of the bath, and he made me put one of my legs on top of the bath and with his little finger he started going into my vagina and I kept on saying, "That hurts," and he said, "Just a little more." And then I - I got my leg off the bath 'cos it was really uncomfortable and I was sort of standing up and he kept on saying, "Relax, don't tense your muscles," and after a little while he said, "There's your hymen," and then he took that out - took his finger out.” Expressing some uncertainty, she said that afterwards, she dressed and went to her room to watch TV or do something else. This was in around July or August 1998 (count 15)
Counts 5 and 6 - Indecent Act and Cunnilingus in lounge-room
The complainant described two associated offences, involving the applicant rubbing his penis on the outside of her vagina, and performing oral sex upon her. These incidents occurred at the start of her Grade 6 year, 1997.
She said: “We were watching TV and I was sitting in his lap and he took out his penis and he sort of pulled half of my pants and undies down and started rubbing it against my private part, and also it was either that night or a few nights later, he - I was sitting in his lap and he sort of moved me 'cos we've got this big armchair - rocking armchair and he sort of moved me to one of the sides and he took off my pants and undies and spread my legs and started sucking my private part.” She stated “While he was sucking my private part, he was asking me, "Does it feel good?" and that and I didn't respond 'cos it didn't feel good and I didn't want to say that 'cos then he might have hit me or something.” In the course of this sucking his tongue went inside her “private part”. Her mother would have been at work, but she could not recall where her brother was. When sitting upon him, her back was towards his chest.
The complainant described one incident when the applicant asked her to massage him in his bedroom, and then made her rub his penis.
She stated “Once he called me to massage him in his [bed]room and after that he told me to feel his dick and touch it.” She said “I - I did as he said.” She added “Well, after I finished massaging him - that usually goes for 5 or 10 minutes, then he dragged me down and he - he was only wearing his undies and he took out his dick and grabbed my arm and put it against his dick, and he said to me to rub it with my hand.” She said he had “dragged me down playfully like as in he was going to tickle me or something.” He had dragged her onto the bed. She had massaged his back and shoulders. She held his penis in her mouth for “1 or 2 minutes” and then he said to her, "…off you go," and "Thank you for the massage." (count 8). He would often tickle her around the arms and torso.
She said “This would have been towards - around the middle of Grade 6” and she placed it then, she said, “Because I was still in primary and nothing much really happened in Grade 4 or 5 except him feeling my breasts and fingering the outside of my private part.”
Counts 9 and 10 - Cunnilingus and Indecent Act.
The complainant described one incident when the applicant performed oral sex upon her in her bedroom. This occurred “a few months” after the incidents the subject of Counts 5 & 6.
She stated: “he told me to take my pants and undies off or removed them himself. I can't remember. And he laid down on his back on my bed and he told me to stand above his head with my legs spread and he - he started sucking my private part again.” She stood with one leg on either side of him, above his head. She stated “He - he sort of like got up so he could reach my private part and started to suck on my private part…and like his tongue sort of went in.” In the course of this incident he also felt her breasts.
Counts 11, 12 and 13 – Incest & Indecent act with child under 16 (two counts)
The complainant also described an incident when the applicant showed her items of pornography and then proceeded to engage with her in oral sex and associated acts.
She stated “He's shown me pictures of naked women and guys having sex and then he showed me this lady sucking this other guy's dick. And I went to have a bath and he came in as well and started undressing and he got in, and he said, "Why don't you suck my dick like you saw in the picture?" She stated “I had to put his dick in my mouth (Count 11) but I didn't suck it….[h]e kept on urging me to suck it but I didn't and then he started playfully feeling my breasts (Count 12) and fingering me - just the outside.” She said “He fingered me just the outside…. Of my - of my thing.… My lower part…My private part.” (Count 13) This occurred “around the start of Year 7”, making it 1998.
After some time the applicant got out of the bath. The applicant dried himself and told the complainant to wash the bath. She then got out and dried herself. It was night and her mother was at work. Her mother only worked during the week.
The complainant agreed that her brother Guido had pornography in his room and that she had gone in there on three occasions to look at it. Her mother had once found her doing this. In the magazines she had observed a woman sucking a man’s penis.
Counts 1, 2 and 14 – Common assault
Count 1
The complainant also described acts of violence by the applicant upon her. She stated: “…when I get into trouble and I deserve like a slap or something, he overdoes it. Like he slaps me a lot and sometimes I fall to the ground and he keeps on kicking me… he ' s kicked me in the ribs and legs and he has given me a black eye before… And he's hit me with the keys on the head and sometimes other objects when - that he's got in his hand.” She thought this occurred when she was in Grade 4 or 5. The applicant had only given her a black eye once. She could not recall “moving her head in any way.”
Count 2
On a separate occasion, she stated: “We got into an argument in the kitchen and he started slapping me and kicking me and my mum stepped between us and he sort of pushed her away sort of and then my brother stepped in, and they started yelling and then they separated. Her father had slapped her and kicked her. This occurred “in Year 7 sometime” – 1998. The argument was not about her homework, or her being naughty.
Count 14
The time he had “kicked and kicked” her was, she stated, “…when I was in the yard under our big lemon tree and he came out and he was angry or some - for some reason and he started slapping me and I sort of tripped and then he kept on kicking me… He got me in the ribs and on my thighs mostly.” She was left with “blackish/purplish” bruises on her thighs. This happened at the end of “last year” [either 1997 or 1998]. In cross-examination she placed this at the middle or end of Grade 6 – 1997. He had slapped her in the face. Some of the kicks were hard, others were not. She did not complain to her mother.
Uncharged Acts
The complainant said that throughout the previous 5 years the applicant had hit her a lot and kicked her and belted her. He had sometimes clenched his fist when he struck her about the back area. He had also made her bend over a chair and whipped her. She did not complain to her teachers about the kicking. In re-examination the complainant clarified that the applicant was not violent to her all the time. Sometimes he was kind.
The complainant described unparticularized indecent assaults by the applicant when she was in Grade 4 or 5, aged 10 turning 11. She stated that, “he would do it [touch her breasts] at any time like when I’m watching TV. He’d come up behind me and feel my breasts or when I’m making some lemon juice or when I’m just walking past.” He would “grab” at her breasts, mostly over, but sometimes under her clothing.
Matters raised in cross-examination
It was generally put on behalf of the applicant that the acts complained of had not occurred. In each case the complainant persisted with her account.
The complainant agreed that she had come to look up to “K.K.”, her stepmother. It was her father’s role in the family to chastise her, but when she was naughty the stepmother would also discipline her, but not as harshly as the applicant. She agreed that she had gotten into trouble “for lying about things”. It was not unusual for her to lie. This was when she was in primary school. She could not recall the kind of things she had lied about then. She had not lied in court or in her police interview.
At the time of the trial the complainant was living with her stepmother. On 10 January 1999 “K.K.” had left the applicant, and prior to the VATE interview the complainant had stayed one night with her stepmother.
On occasions “K.K.” would walk around in the house in front of the applicant and the complainant wearing only underpants. The complainant was always more “embarrassed” and would wear clothing. Sometimes, around the house, she may have worn no top.
The complainant agreed there was a time when the applicant, in her stepmother’s presence and with her “okay”, had shaved her [the complainant’s] bikini line. To do that he had touched her on the “private parts”.
The complainant identified two photographs of herself, taken when she was either in Year 7 or Grade 6 – Exhibit 1.
In Grade 5 the complainant had an experience with a male stranger who had tried to grab her in the street.
In January 1998 the complainant had gone with her stepmother and father to a nudist beach in Mt. Eliza.
Other Evidence
“K.K.” gave her evidence through an interpreter. She stated that she had met the applicant in the last week of June 1986. They commenced a relationship a year later, and they married in 1996. In the 1980’s they moved from Perth to Melbourne, and in January 1999 they came to live at the Melbourne suburb address.
When the complainant was 8 years old she came to Australia to live with her father and the witness, and “K.K.’s” son.
“K.K.” moved out from the above address on 11 January 1999. Some months before this date the applicant started questioning his wife about intimate matters and referred to checks as to the complainant’s virginity. I shall return later to the detail of these conversations.
“K.K.” agreed that she had been present when the applicant shaved the complainant’s bikini line. This happened in the last year the family was together, when the complainant was 12 or 13 years of age. The complainant had developed pubic hair and was made uncomfortable by the shaving cream the witness had purchased for her. The witness had let the applicant shave her own bikini line and underarms, and she agreed when the applicant suggested they could do that for the complainant. The child agreed when her stepmother suggested this procedure, and came to her parents wearing a very small bikini. The applicant used a blade razor, but found the job awkward because of the bikini. Ultimately the applicant asked the complainant to remove her bikini, which she did, and he completed the task.
The witness stated “For about two or three years before [January 1999] (my husband) was in a very bad mood, as happened many times, and the little girl got a big slap on the face and then she had a fall.” This was what happened with the incident in the kitchen. After slapping the complainant the applicant then started kicking her as she was on the floor by the sink. She stated that it was a “terrible” assault, and that “It was a very dangerous situation.” She thought there was only one kick, and the assault stopped because she jumped in between them. That kick did connect with the complainant’s body. He kicked her in the head. (My son) was also in the kitchen, and he also intervened.
At some different point the witness also saw the complainant with a black eye. After seeing that “K.K.” spoke to her husband, and he said he was really sorry and he had not meant to do it.
On many occasions the applicant told his wife not to interfere. He said “The daughter is mine.”
The witness was aware that the applicant had purchased pornographic magazines. He told her that first he bought them for her son, but afterwards he kept buying them for himself. She was aware of the magazines in her room, but did not care about them.
When the complainant’s menstrual period commenced “K.K.” discussed with her the use of tampons. She showed her what a tampon looked like, and she thought the applicant was hanging around the room at that time.
When “K.K.” left the applicant’s home, she did not take the complainant with her, but the complainant joined her the next day. She took the complainant to the police station on 14 January 1999 for her VATE interview.
“K.K.” essentially confirmed the complainant’s evidence as to her work hours. She sometimes worked Sundays and had a day off mid-week. She agreed that the applicant physically disciplined the complainant, but stated she would also verbally discipline her. She agreed that the complainant loved her.
There was a disagreement between the applicant and his wife in the discipline of the complainant. “K.K.” “was against the physical violence, personally hitting her head.” The applicant did not let the complainant go anywhere.
She agreed that she might walk around in front of her son wearing underpants and a bra, and also that the complainant when a little girl might walk around wearing just underpants. When it was put that she [the witness] would walk around topless, she stated that she did not walk around the house half naked. If she appeared in the house “half naked” it would only be walking between the bedroom and toilet.
“K.K.” agreed that the applicant had once asked her to allow him to photograph her “before [she] got older”. After a few glasses of wine she had lifted her dress and revealed her backside and g-string underwear. She had not been aware that the applicant had the video recording.
It was put to “K.K.” that she and the complainant had “got their heads together” in respect of Count 2. She refuted this, saying “I love (the applicant)”.
Detective Senior Constable Ross John Warren Hill was the informant in this matter. On 12 February 1999 he conducted a search of the applicant’s home. He seized a quantity of pornographic magazines. These included magazines with images of women performing oral sex on males. These were located in the main bedroom of the house. The applicant was subsequently formally interviewed, and two audio tapes of that interview were tendered as Exhibit B. In interview the applicant denied any sexual offending. He admitted shaving the complainant’s bikini line, and showing her pictures of naked women. He admitted asking the complainant two or three times about being a virgin, but denied ever “checking”. He admitted having hit her with a belt and kicked her.
The informant also confirmed that on 27 January 1999 the complainant was examined by forensic medical officer Dr Morris Odell. That officer made a report in which he stated that he examined the complainant’s genitalia, and was unable to confirm or deny “allegations of sexual penetration occurring as far back as six months from the appearance of the time of the examination.” The applicant was co-operative with the police investigation. Prior to this matter the applicant had not been charged with any acts of violence against his daughter. The police search had also found pornography in (the son’s) bedroom.
I now turn to counsel’s submissions on these applications.
Submissions on Grounds 2(c) and 8: Corroboration.
A: The Applicant’s Submissions as to grounds 2(c) and 8 - Corroboration
Mr Meredith for the applicant began his contentions by stating that the “gravamen of the application related to the directions of the learned judge as to the way the jury should assess the evidence of the complainant”. Counsel then addressed grounds 2(c) and 8, submitting that the learned judge erroneously directed the jury that some evidence in the trial was capable of being corroborative of the complainant in law when it was not. He specified, in this connection, evidence of conversations between the applicant and the witness “K.K.”; evidence of observations of the complainant’s eye by the same witness and statements made by the applicant during his record-of-interview with the police.
It is convenient at this point to refer to the directions given to the jury by the learned judge about evidence the Crown contended constituted “independent support for two of the assault incidents”. His Honour, in this connection referred to “the black eye” (presumably the wife’s evidence that she had seen the complainant with one) and a concession of the applicant in his record-of-interview that he caused discolouration to her eye.
His Honour also gave the jury directions in relation to what the Crown contended was “independent evidence” which supported its case in relation to the “three sexual counts, that is, the digital penetration”. (The learned judge was referring, of course, to counts 4, 7 and 15.) After detailing the evidence of “K.K.” as to conversations between her and the applicant, (to which I shall return, but which may be summarised as including expressions of unnatural interest in his daughter’s virginity and a proposal to digitally penetrate her in order to test her virginity), his Honour directed the jury that it was a matter for them whether this evidence supported the complainant on the three counts. He later added:
“It is a warning given in a judge’s charge that must be given in cases of whatever nature, where a complainant’s evidence in a criminal trial is not supported by corroborative evidence, as is the case in nine of these counts and as may well be the situation in three of them, depending upon your judgment about that. And corroboration is evidence from a source independent of the complainant which implicates the accused person in the crime charged by tending to show that the crime was committed and that the accused was the person who committed it.”
The learned judge directed the jury that if they found there was independent support for the complainant’s evidence, they could act upon it. He added that if they found there was no independent support, “You must be fully aware of the dangers of convicting on the evidence of the complainant alone, unless having scrutinised that evidence with great care you are satisfied of its truth and accuracy”.
After hearing submissions from both counsel, the learned judge made a ruling on the matter of corroborative evidence. After excluding some matters from this category his Honour held that “K.K.’s” evidence of statements made to her by the applicant was capable of supporting the evidence of the complainant in relation to counts 4, 7 and 15. As to the assault counts, his Honour observed “There is obvious corroboration in relation to two of the assaults charges, but that is in the scheme of things less significant”.
It should be kept in mind that the three assault counts encompassed 1 January 1995 to 31 December 1996 (count 1), 1 January 1996 to 31 December 1998 (count 2) and 1 January 1997 to 31 December 1998 (count 14).
In her evidence at trial the complainant stated that from shortly before her eighth birthday, i.e. 23 November 1993, until early in 1999, she lived at the above address with her father and “K.K.”, together with “K.K’s” son. Cross-examined, the complainant stated that an incident wherein the applicant kicked her in the legs and ribs under a lemon tree happened towards the middle or end of her sojourn in Grade 6 at school. In other evidence she said that she had been in Grade 6 in 1997. (This incident was said by the Crown to constitute count 14.) In her VATE tape the complainant ascribed it to either 1997 or 1998.
Further cross-examined at the trial, the complainant described the applicant kicking her in the kitchen on her legs and ribs. She ascribed this incident to “in Year 7 some time”, i.e. 1998. She said that her “Mum” and “brother” had intervened in this incident. (This incident was said by the Crown to constitute count 2.)
In her VATE tape she described the applicant giving her a black eye and that had only happened once. Although her evidence on the tape was not entirely clear on the point, she seemed to be ascribing this incident to her sojourns in Grades 4 or 5, i.e. 1995 and 1996. (This incident was said by the Crown to constitute count 1.)
As earlier indicated, “K.K.” gave evidence that she had seen the complainant with a black eye. She said she was not sure whether she made this observation before or after another incident in which the applicant slapped and kicked the complainant in the kitchen. She thought this happened, possibly, in 1995. She said she had jumped between them and (the son) had also intervened. She thought a kick had landed in the head. Cross-examined, she thought the incident happened “about ‘95 or ‘96”.
In his interview with the police, (question 348 et seq) the applicant was asked:
“Have you given (the complainant) a black eye?”
He replied: “It could happen. I am not very correct in if she had the black eye or not when she was complaining to the teacher the next day.”
He was asked: “Would – would she have been in Grade 4 or Grade 5 at that time?”
Answer: “Yes.”
He was asked: “Okay. And did – well, you would have seen a black eye on (the complainant). Did you see a black eye?”
Answer: “Yes, can be…I wasn’t watching that – that much.”
He was asked: “Yeah, but you’ve just said yes, you did see a black eye, so you would see a black, you would see a black eye on – on your daughter, wouldn’t you?”
Answer: “Yes, but it wasn’t that black. You know, it was.”
He was asked, “Was it…?”
Answer: “Coloured.”
He was asked: “Coloured?”
Answer: “Yes.”
He was asked: “And was it sort of bruised, was it?”
Answer: “Yes.”
He was asked: “Okay, how did you do that to her?”
Answer: “I give her a smack unfort…”
He was asked: “A smack on the face?”
Answer: “Yes, and unfortunately I hit her a bit higher than…”
Mr Meredith went on to contend that although the applicant admitted in his record-of-interview that he gave the complainant a “coloured” eye he also said that it resulted from his hitting the complainant higher than he had intended to. In as much as he gave no other detail, he gave no description of events which might have fixed this incident as occurring in the manner depicted by the complainant. Accordingly, the admission could only be said to be supportive of the complainant if her version of the incident was accepted. Therefore, the admission was “neutral” and incapable of constituting corroborative evidence. Indeed, counsel went so far as to assert the evidence from the record-of-interview was “probably inadmissible”.
I now turn to the directions of the learned judge touching these matters. In the following extracts from the charge (which appeared at transcript pages 212-214, and 224) I have underlined some passages which were highlighted by counsel for the applicant in his submissions concerning the Longman[1] warning, which I will later address. It is convenient to highlight them now so that they need not later be repeated in these reasons. His Honour directed the jury as to corroboration in the following terms:
[1]Longman v The Queen (1989) 168 C.L.R. 79: This is addressed in grounds 4 and 5.
“I have given you some general directions which are applicable to most criminal trials, and I now want to turn to the question of how you should consider the evidence in this particular case as distinct from what you jurors are going to make of the evidence. The way you should approach it as distinct from what you actually make of it.
The circumstances of this case are peculiar such that it is appropriate for me to give this particular warning. And I explain why I give them. But just again on the threshold, in relation to the three counts, if you find that there is support, well, then this warning is not applicable, if you find there is independent evidence. But if you are not prepared to say, because of the controversy about that evidence, if you are not prepared to say that that supports it, well the, all of these sexual counts are not supported by independent supportive evidence. You understand that. (212)
And it is important that you understand that because if you find that those three counts are supported, well then this warning is not appropriate. But if you do not, well, then you must take the warning into account. But the warning is applicable to those other nine counts of alleged sexual misconduct because there is no supporting evidence.(213)
And in giving you this warning I am not merely repeating the arguments of counsel, I am giving you directions in law which you are obliged to follow and implement in your consideration of the evidence in this case.
And in so warning you let me make it clear that it is not given simply because this is a sexual case. That really has nothing to do with it. A complainant in a case involving an allegation of a sexual offence is, in this regard, in no different position to someone who is complaining about any other criminal matter, whether it be an allegation of robbery or wounding or dishonesty or other types of criminal behaviour where guilt has to be established beyond reasonable doubt.
It is a warning given in a judge’s charge that must be given in cases of whatever nature, where a complainant’s evidence in a criminal trial is not supported by corroborative evidence, as is the case in nine of these counts and as may well be the situation in three of them. Depending upon your judgment about that.
And corroboration is evidence from a source independent of the complainant which implicates the accused person in the crime charged by tending to show that the crime was committed and that the accused was the person who committed it.
Now, I repeat, in the case of nine there is no such corroborative evidence. In three there is evidence capable of amounting to corroboration. Whether you find it is corroboration is a matter for you.
Accordingly, you must approach the evidence of (the complainant) on the basis that her evidence in that respect is uncorroborated. Of course you are entitled to act upon that evidence and return a verdict of guilty on it if you see fit to do so. However, you should only return a verdict of guilty based on that evidence alone, if after having anxiously scrutinised the evidence, scrutinised it with great care, having considered all the circumstances that are relevant to its evaluation you are satisfied beyond reasonable doubt of its truth and accuracy.” (214)
After reminding the jury that the complainant’s allegations when first made in January 1999 were as to events occurring in the period from the end of 1995 to August 1998, his Honour said:
“12 incidents of sexual misconduct are alleged to have occurred between those dates. So what I, as the judge must do, is to attempt to emphatically remind you of the context in which you go about your fact finding role…” (214)
His Honour later added:
“I point out to you again, it has been pointed out at the Bar table that there is no evidence, external evidence, to that of the complainant which supports her, and you understand that, if it is the three and the nine charges, and whether you find there is external evidence it is a matter for you. There is evidence capable of supporting her, and whether you accept that, it is a matter for you. (224)
It is not necessary, I emphasise as a matter of law to have such supporting evidence, but you may consider the potential for error to be greater in the absence of such supporting evidence.”
It is necessary to examine in detail “K.K.’s” evidence as to her conversations with the applicant.
By way of introduction, “K.K.”gave evidence of her marriage to the applicant in 1996 and her departure from the family home on 11 January 1999.
She said that about six months before the latter date the applicant asked her how she felt the first time she had been intimate with her husband and what the husband had done. (The learned judge later directed the jury to “put that on one side”.) The witness then said that the applicant said to her “…that he never had a virgin before. He said I could try with (the complainant) but no, anyhow I have no interest in her”. She continued, “Yes, he also said that we have to check on her if she is still a virgin or not and if we find out that she is not he would send her away”. Asked how many times the applicant indicated he could try with (the complainant) she replied, “I think once or twice”. Asked how many times he said he should check to see if she was a virgin or not she replied, “A number of times he said that about her and must check on her if she is virgin or not”. Asked how he would check on her she replied, “How to check on her, he said with the finger because that is how you can do it”.
In cross-examination it was put to “K.K.” that the conversation about her first being intimate with her first husband had occurred not long after she was living with the applicant. She replied “No, the time of day I mention he, he kept asking me that question. That was not the first years.” It was put to her that the applicant had never said that he had never had a virgin before and he could try (the complainant) but was not interested, but she replied “That’s not true”. Asked if she was telling the court that as part of that conversation he also said he would go about physically checking the girl’s virginity she replied “Yes, and I told him not to do it”. She reiterated that he had said he would check and assented that she had told the police “He said he never had found a virgin girl. He said ‘I could try (the complainant) if I wanted to but I’m not interested’…He has told me that in the future he must check to see if (the complainant) is a virgin or not. He told me that if he finds out she is not a virgin she would be sent away”. It was put to her that she had not mentioned fingers to the police and she replied that she had no interpreter at the time.
While “K.K.” variously ascribed the conversation about her own first sexual experience to about six months before January 1999 and “not the first years” (presumably of her relationship with the applicant which other evidence indicated had commenced in the 1980’s), she did not ascribe times, other than one occasion, when discussion of the complainant’s virginity had occurred.
As to the abovementioned pieces of evidence, Mr Meredith submitted that the conversations between the applicant and his wife were not in law supportive or corroborative of the complainant because the remarks attributed to the applicant clearly related to potential future conduct and did not refer to conduct which had been engaged in at the times when counts 4, 7 and 15 were alleged to have occurred. Counts 4 and 7, he said, were alleged to have occurred approximately two years prior to his utterances and while count 15 was closer in time to them it still predated them. There was, counsel argued, an insufficient nexus between the utterances and the counts.
Mr Meredith submitted that it would have been difficult, if not impossible, for the jury to categorise the statements attributed to the applicant. They might have been an expression of intent or they might have been a seeking of approval from “K.K.”. In any event, said counsel, after this evidence was left to the jury as potentially corroborative they were left without guidance. They were not told how they should use it. (No complaint in these terms was made at the applicant’s trial.)
B:The Respondent’s Arguments as to grounds 2(c) and 8: Corroboration
Mr McArdle, for the Crown, submitted that the learned judge correctly identified portions of evidence which were capable of constituting corroborative evidence. He argued that the applicant’s statements to the police were “grudging” and left an unclear rather than a “black or white” situation, in other words, a real issue. Further, once the defence of lawful discipline arose there was most certainly another issue created because the point where the blow described by the complainant landed became significant. As to the conversations with the applicant’s wife, Mr McArdle submitted they were not put forward as admissions, but were properly relevant as “preceding” and “succeeding” conversations which the jury could regard as designed to obtain his wife’s approval or at least tacit acquiescence. It may have been in the applicant’s mind, he contended, that the child would at some time complain. Or, he may have been “testing the water”. All these views were open to the jury. As he admitted to the police, the applicant certainly had the relevant interest. Counsel emphasised that the conversations possessed marked “specificity” to the acts alleged by the complainant. The applicant spoke of particular unnatural conduct in a father. Each count involved just such conduct.
Mr McArdle, for the Crown, addressing grounds 2(c) and 8, submitted that the impugned evidence was capable in law of providing corroboration of the complainant. He contended that his Honour’s ruling (165 - 167) did not admit of error. As to “the black eye”, he argued that the applicant’s statements to the police concerning it were, at most, “grudging” admissions producing a situation at trial that was far from “black and white”. Additionally, once the defence of lawful discipline arose, an issue was raised because the point where the blow landed became of significance. Mr McArdle argued that the impugned conversations between the applicant and “K.K.” should not be seen as admissions, but rather considered (as no doubt the jury considered them) as “preceding” and “succeeding” conversations explicable by the applicant having in mind that the child might, at some time complain. Or, he may have been seeking his wife’s approval or tacit connivance – “testing the water”. It was most important, said counsel, to note the “specificity” of these conversations, as the jury were entitled to note them. They related to the very conduct which the complainant alleged against the applicant. They also revealed a most unusual and debased attitude in a father for which no cultural explanation had been offered.
Counsel referred to the classic definition which appears in the joint judgment of five members of the High Court in Doney v. The Queen[2].
[2](1990) 171 C.L.R. 207 at 211
“The essence of corroborative evidence is that it ‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders (that) other evidence more probable’”[3]
Submissions on grounds 4 and 5: The Longman warning
A:The Applicant’s arguments as to ground 4 and 5: Longman Warning
[3](1990) 171 C.L.R. 207 at 211
I now turn to counsel’s arguments upon grounds 4 and 5 which, it will be recalled, contain various complaints of inadequate jury directions as to the jurors’ consideration of the evidence of the complainant. Mr Meredith argued these two grounds together.
Although Mr McArdle was inclined to take the line at times that no Longman direction was necessary, it may be accepted that it was common ground at the trial (and indeed in proceedings before this Court) that a fair trial for the applicant involved the learned judge giving adequate directions to the jury as to how they should consider the evidence of the complainant. Counsel referred, both at trial and here, to these directions as “a Longman direction”.
In contradistinction to what occurred at the trial, quite a number of specific complaints were made on this application about the above direction. These were that the warning:
*Did not extend to a consideration of the whole of the evidence of the complainant.
*Failed to adequately emphasise the danger of convicting the applicant on the evidence of the complainant.
*Was not expressed to apply to counts 4, 7 and 15, should the jury be satisfied that there was corroborative evidence touching those counts.
*Was not expressed to operate regarding the evidence led in support of counts 1, 2 and 14 and of the uncharged acts of violence that were admitted in evidence.
*Was not expressed to operate regarding the evidence of uncharged acts of sexual interference.
I shall shortly turn to these matters. But before I do so, I observe that both at trial and in argument upon this application, repeated use was made of the term “Longman warning“. Indeed, in his written outline supplied to the Court, counsel described ground 4 as “Error in jury directions concerning Longman warning”. He also described ground 5 as “Failure to adequately warn jury, concerning Longman warning”. In R. v. Arundel[4] Tadgell, J.A. noted that the expression “Longman warning” had “passed almost into the vernacular of the criminal law”. His Honour later added:
[4][1999] 2 V.R.228 at 235
“The term a ‘Longman warning’ has often been used by this Court as a convenient expression without the need to define exactly its signification.”[5]
The genesis of this expression comes, of course, from Longman v. The Queen[6] a case where there had been many years delay between the alleged commission of sexual offences by a man upon his step-daughter of whose evidence there was no independent corroborative evidence. In allowing an appeal against convictions sustained the majority of the High Court observed in a now famous passage of the joint judgment:
“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty 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 and 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.”[7]
Elsewhere in Arundel, Callaway, J.A. (with whom Charles, J.A. agreed), observed:
“Longman’s case is an illustration of a broader principle, namely that a judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of a miscarriage of justice.”[8]
[5]Arundel, at 236
[6](1989) 168 C.L.R. 79
[7]Longman, at 91
[8]Arundel, at 246
The abovementioned cases were cited by counsel for the applicant together with R. v. Salter[9] where Winneke, P. stated:
“…whether a warning carrying the authority of the judge’s office is called for, and in what form, will depend upon what the interests of justice require in the particular case. In general terms, it can be said that such a warning should be given whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.” (8)
[9]VSCA (2002) 128, at [10]
I shall now set out the warning given in the instant case. I will commence with a passage to which I earlier referred[10], so as to give context to these directions in relation to the directions as to corroboration. His Honour said:
[10]See par [79]
“The evidence is that the complainant, …, first complained of these alleged incidents in January of 1999. And these were about instances of sexual abuse which commenced some time, as she alleges, towards the end of 1995, when she said she was in Grade 4 at school, and the allegations extended to August of 1998. (214)
Twelve incidents of sexual misconduct are alleged to have occurred between those dates. So, what I, as the judge must do, is to attempt to emphatically remind you of the context in which you go about your fact finding role. Because you the jury have to make your own evaluation of the evidence in the light of your common human experience. You are expected to bring your good common sense and experience to bear in the assessment of that evidence. (214)
However, the law requires of me that you must have particular regard to some circumstances peculiar to this case. And this direction is the distillation of decisions which are very much an integral part of our law.
I refer firstly to the delay between the time at which some of the offences are alleged to have occurred and when they were first reported. You will be aware that that delay in this case extends some two to three years in relation to Counts 3 and 4, some two to three years in relation to counts 5 to 10. And Counts 10, 11, 13 and 15 range between six to 12 months. A general complaint was made in the statement to the police, which was recorded on video, and which is an exhibit, and that tape was made on 14 January of 1999.
You must, in considering the evidence, have regard to the age of (the complainant) at the time when these incidents are alleged to have occurred. The evidence is that she was born on the 23rd day of November in 1985, so her age over the relevant period progressed from age 11 to just short of her 13th birthday. (215)
Human experience is that recollection of events happening during childhood can be wrong and liable to distortion. It is a matter for you. You may think that (the complainant) as a girl aged 11 to 13 was indeed a child. I repeat, a matter for you. The age of (the complainant) at the time of the relevant incident you are considering, taken together with any delay in the reporting of any such incident you are considering, make it essential that you consider the effect of a combination of those circumstances on the memory of the complainant. (215)
It is common experience that memory fades or becomes faulty with the passage of time. It is also common human experience that some things stick in an individual’s mind and never fade. What you have to advert to is that common human experience. (216)
It is also common human experience that over the years a person can convince him or herself that some event did occur. Some people do have faulty memories and some are poor historians. Some have vivid imaginations and some people can engage in fantasy. And you must take those factors into account. (216)
I am not talking here of cases where someone deliberately invents an incident, where there is a deliberate falsehood. I am talking of the common human experience, that honest witnesses can be subject to faulty recollection or inaccuracy, or liable to convince themselves that some incident occurred in a particular way in the past. And one cannot ignore the effect of imagination, emotion, prejudice or some form of suggestion on our past events are perceived to have occurred.(216)
And after the passage of significant time, in this case you have a girl now aged 15 years, who has recounted the events upon which the Crown relies. You must have regard to the matters of which I have directed you when bringing your good common sense and experience to the assessment of this evidence. (216-217)
It is also human experience that a witness can honestly and accurately recall incidents in the past with clarity and can swear to them in a manner which suffices to have a jury believe what the witness is saying. In other words, after the jury has given that evidence the most anxious scrutiny, considered the circumstances relevant to its assessment, and paying heed to this warning that I have given you, the jury is satisfied beyond reasonable doubt as to its truth and accuracy. (217)
And I also direct you that after the passage of time a person about whom allegations are made, may and perhaps does tend to lose the means of defending themselves.
It can surely be said that had the allegations been made shortly after the alleged event it would or may have been possible to explore in detail the alleged circumstances surrounding the alleged occurrence and perhaps the defendant would be in a position to adduce evidence, throwing doubt on the complainant’s version, or indeed producing evidence confirming the accused’s denial. Not that there is any onus of proof upon him. You must remember that.
After a long delay that opportunity to defend oneself is gone without any impropriety the accused’s memory may be faulty, because he is subject to the same human failings of which I have spoken, or it may be non existent about the matters which might provide an answer to a particular charge. And the law requires you to take this factor into account in your deliberation.” (217)
Later, his Honour added:
“But if you felt the delay in making a complaint was so long, so inexplicable, subject to a satisfactory explanation, you could take such a finding into account in determining whether the particular allegation you are considering was false. It is for you to say whether in all the circumstances the absence of a timely complaint does constitute behaviour consistent or inconsistent with the allegation made. (222)
The circumstances such as I have adverted to, that is the delay in complaining, which factor has been the subject of argument of counsel, the nature of the allegations, that is, allegations of criminal conduct which are not supported by corroborative evidence, the age of the complainant at the relevant times and the problems of potentially faulty recollections, to which I have referred, all point to the potential for error inherent in evidence of this nature. (222)
This warning is to direct your mind to that potential for error and that is what you must have regard to. I am not saying there is error, that is not part of my task. Questions of the assessment of the evidence are for you. Those circumstances to which I have just referred highlight the problems from the defence point of view in explaining the matters about and surrounding the alleged offences, although I remind you again there is no onus of proof on the defendant. And the existence of all of those matters, in this case, such as to require me to do just what I have done, the trial judge, to give judiciary authority to the warning that I give you about the assessment of evidence of that type in a case such as this. (222-223)
These matters mean that to fulfil your duty of fact finding you must be fully aware of the dangers of convicting on the evidence of the complainant alone, unless having scrutinised that evidence with great care you are satisfied of its truth and accuracy. If you are, you are bound to convict. And as I say, while fact finding is properly a jury function it is the jury obligation to have regard to any comments that I have made in this particular section of my charge. It would be wrong for you the jury in a case such as this to ignore what I have just said by way of warning about the dangers and the potential for error. That is in a case where events are alleged to have occurred some time ago and they are not supported by corroborative evidence. (223)
However, having noted the comments and warnings, it is open to you as a jury to convict, after careful scrutiny of all the evidence, bearing in mind the difficulty for the defence and bearing in mind the onus of proof and the absolute necessity of being satisfied beyond reasonable doubt of the guilty of the accused man of the charge that you are considering.” (223)
The above passages followed immediately after the directions given as to corroboration, which I have earlier set out[11], and in which extracts I highlighted passages on which counsel placed emphasis. Mr Meredith submitted that the manner of the above warning’s introduction to the jury was such as to convey to them its operation was limited to the complainant’s evidence in support of those counts for sexual offences where the jury found that there was no corroborative evidence. He also asserted that inadequate emphasis was given of the danger of a conviction based on the evidence of the complainant.
[11]See pars [76]-[78]
Mr Meredith argued that to have allowed the jury to consider the evidence of the complainant in support of counts 4, 7 and 15 (if the jury found corroboration) without regard to the warning deprived the applicant of the protection that was required to afford him a fair trial. The reasons militating for the need for scrutiny of the complainant’s evidence, said counsel, were not removed by the existence of corroborative evidence. By effectively removing the complainant’s evidence relating to those counts from the need for scrutiny may have allowed the jury to use a finding of guilt on those counts to bolster the credit of the complainant in relation to the remaining counts. Counsel mentioned Doggett v. R.[12], referring to portion of the judgment of Kirby, J. at paragraph 136:
“In a number of cases in state courts, the existence of some corroborative evidence has been held not to relieve a trial judge of the duty to give a Longman warning where the considerations identified in Longman are or might still be relevant. In my opinion, this is the correct approach. To the extent that a jury might, in their reasoning, rely on an acceptance of a complainant without taking into account the special forensic dangers mentioned in Longman, those dangers will remain. In cases of long delay that fact will impose the duty to give a Longman warning so that the jury will take it into account in reaching their verdict.”
Elsewhere in Doggett Gaudron and Callinan, JJ. set out a number of reasons why they considered a Longman direction was necessary in that case. Circumstances touching some counts made the complainant’s recollection of some matters questionable; the complainant’s explanation for fixing the times of commission of some counts was unlikely; an apparently independent witness categorically disputed an aspect of the complainant’s evidence; the trial revealed discrepancy as to the dates of some offences; the case might well be one of denial to the person accused of forensic weapons which a timely complaint would allow him to assemble and the corroboration available did not necessarily establish criminal sexual molestation. I shall return to this case in stating my conclusions.
[12](2001) 182 A.L.R. 1; (2001) 75 ALJR 1290
Counsel also cited R. v. Jolly[13], a case where a girl of some ten years of age at the time of the alleged sexual offences did not make complaint thereof until some three and a half years later. Mr Meredith referred to portion of the headnote:
“(3) The delay in complaint, together with the other circumstances of the case, required the trial judge to charge the jury in terms calculated to afford them a full appreciation of the danger of proceeding to convict on the evidence of the complainant unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. The direction given by the trial judge was not adequate for this purpose.”
[13][1998] 4 V.R. 484
The judgment of Kenny, J.A. with which the other members of the Court agreed, reveals the “other circumstances” referred to in the headnote.
“The case against the applicant depended in some important respects upon the evidence of the complainant alone. It was part of the defence case that the evidence said by the prosecution to be corroborative of the complainant was not corroborative at all. The charges had arisen largely because the complainant had been talked into discussing the contents of her ‘secret’ note with the Student Welfare Co-ordinator at her school. There had been no complaint regarding the incident constituting count 1 until the complainant made her statement to the police.”[14]
[14]Jolly, at 501
Mr Meredith then turned his attention to part of the charge in the instant case.
“These matters mean that to fulfil your duty of fact finding you must be fully aware of the dangers of convicting on the evidence of the complainant alone, unless having scrutinised that evidence with great care you are satisfied of its truth and accuracy. If you are, you are bound to convict. And as I say, whilst fact finding is properly a jury function it is the jury obligation to have regard to any comments that I have made in this particular section of my charge. It would be wrong for you the jury in a case such as this to ignore what I have just said by way of warning about the dangers and the potential for error. That is in a case where events are alleged to have occurred some time ago and they are not supported by corroborative evidence.
However, having noted the comments and warnings, it is open to you as a jury to convict, after careful scrutiny of all the evidence, bearing in mind the difficulty for the defence and bearing in mind the onus of proof and the absolute necessity of being satisfied beyond reasonable doubt of the guilt of the accused man of the charge that you are considering.” (223) (Emphasis mine.)
Referring to portion of the judgment of Ormiston, J.A. in Jolly “…but unless there be unusual circumstances the necessary (Longman) direction ought ordinarily to express or connote that it would be ‘dangerous’ or ‘unsafe’ to convict on the evidence of the complainant alone…”[15] Mr Meredith submitted that the emergence of “dangers” in the passage contained in the previous paragraph was “too little and too late”.
[15]Jolly, at 496
Mr Meredith submitted that the jury were invited to use findings of guilt on the assault counts and a finding that the uncharged acts of violence occurred, to “explain her state of mind, why she was passive or submissive” (221) and to assess any delay in making complaint in the light of this evidence. He contended that it was open to the jury to use the evidence of the acts of violence as supporting the credibility of the complainant’s evidence that the offences were committed. The allegations of violence both charged and uncharged were significant items of evidence relied upon by the prosecution. To have allowed the jury to assess the evidence relating to the allegations of violence without telling the jury that the Longman warning extended to the whole of the complainant’s evidence exposed the applicant to the risk that the jury might use a finding based on the complainant’s evidence of uncharged and charged acts of violence to support and confirm her evidence in relation to the counts of sexual offences to which the Longman warning was said to be applicable. Counsel cited R. v. Robertson[16] a case of alleged offences where there was no corroboration of the complainant’s evidence that they occurred when she was between the ages of nine and 12. She was aged 21 at the time of the trial. Reference was made to portion of the judgment of Winneke, P. with whom the other members of the Court agreed. His Honour was critical of the trial judge merely directing the jury that they “should not accept a witness’s allegation of a crime occurring’ unless they had carefully scrutinised it and were convinced of its truth.” Such a statement, he said, “was scarcely apt to focus a jury’s attention on the evidence of the complainant or the reasons why the complainant’s evidence was, unsupported, dangerous to act upon.” He had earlier stated “It was imperative for the judge to bring home to the jury that the warning which he was giving them was directed solely at the evidence of the complainant and that it was a warning which the law required the jury to pay heed to for a particular reason.”[17]
[16][1998] 4 V.R. 30
[17]Robertson, at 37
Counsel pointed out that the jurors were directed that the uncharged acts of sexual misconduct were put forward to “establish the nature of the relationship between the accused and his daughter, a part of the context or the setting in which the offences charged are alleged to have occurred.” (225)
Counsel submitted that as it was open to the jury to use this evidence as supporting the credibility of the complainant and making the occurrence of the charged offences more probable, to have allowed the jury to have assessed this evidence without an appropriate warning being applied to it left an unacceptable risk that the jury may have reached a conviction on all counts by using a finding in regard to the uncharged acts to support or confirm her evidence in relation to the charged acts of sexual offences. Again, Robertson, supra, was relied upon.
(I here interpolate that it was part of the submissions on behalf of the applicant as to the alleged insufficiency of the warning that it has been held in the case of corroborative evidence of an accomplice that it is wrong to limit a warning to only those counts which the jury find are not the subject of corroboration. Zorad v. R.[18], R. v. Radford[19] and R. v. Pisano[20]. were referred to. It is sufficient to say here and now that I do not think there is any substance in this point. Accomplices, as a class, have long been treated as dubious witnesses, and for good reason. The law now views sexual complainants quite differently. See Longman supra and s.61(1)(a) Crimes Act 1958.)
[18](1990) 19 NSWLR 91
[19](1993) 66 A. Crim. R. 210
[20][1997] 2 V.R. 342
B: Respondent’s Arguments as to grounds 4 and 5: Longman warning
Turning to grounds 4 and 5 and citing Salter supra, Mr McArdle described a Longman warning as “no more or less than a warning concerning factors which a jury might not otherwise take into account in the assessment of evidence, to avoid a perceptible risk of a miscarriage arising in the circumstances of the case”. He contended that insofar as there was complaint that the warning did not extend to all the evidence of the complainant, it was made plain to the jury that while there was evidence capable of providing corroboration, if that evidence was not accepted the direction applied to all the counts. His Honour had directed:
“…If you find that those three counts are supported, well then this warning is not appropriate. But if you do not, well, then you must take the warning into account.”
Subject to his description of the warning, he argued that such a warning is not concerned with evidence that is corroborated.
In discussing the matters leading to a Longman warning (forensic disadvantage in the applicant; passage of time; lack of particularity and the age and nature of the evidence of the complainant) Mr McArdle pointed out that the delay in complaint was five years with respect to count 1 and four years with respect to count 2. Otherwise, the periods of delay were relatively short. As the only issue in relation to the assault counts was lawful correction, counsel contended, the forensic disadvantage aspect was minimal, if indeed it existed. As to the sexual counts, the applicant had simply told the police “I didn’t do it”. The case of R. v. “PJJ”[21] was cited. In that case, offences were alleged to have been committed in the years from 1993 to 1996. A trial took place in September 1997. Counsel relied on a passage in the judgment of Winneke, A.C.J. with whom the other members of the Court agreed.
“It would be wrong to believe, as current practice is tending to suggest, that, in every case in which multiple sexual offences are alleged, the trial judge is bound to give a warning of the type which the Court in Longman suggested should have been given in that case. The Court was not suggesting that, simply because credibility issues had arisen between the complainant and the accused, the former rule of practice was to be supplanted by some other form of warning, masquerading as a comment to be made by the judge pursuant to s.61(2). It should not be forgotten that the Court in Longman was dealing with events which were more than 20 years old and where the circumstances made it obvious that it was far easier to make the allegations than to refute them.”[22]
[21][1998] VSCA 96
[22]PJJ, at [16]
Reference was also made to another judgment of Winneke, P. in R. v. Hyatt[23] in which his Honour observed that a judicial warning “in respect of events which were, in this case, only four years old…”, “…might be said to have been generous to the applicant”, in circumstances where it appeared the applicant was well able to remember the circumstances in which the events were alleged to have happened and to put forward answers to them.
[23][1998] 4 V.R. 182, at 193
The case of Doggett, supra, Mr McArdle submitted, was of no assistance to the applicant.
As to the assault counts, it was submitted that as the only issue was what the applicant intended there was no need for a warning. In truth, there was no evidence that the complainant gave which required the applicant to make some refutation. Further, the inclusion of uncharged acts in Longman warnings has not been “canonical”. In the instant case no exception was taken to the charge on this point.
Mr McArdle allowed that his Honour’s direction did not include a statement that it was “dangerous” to convict. Rather, he argued, it was sufficiently drafted in terms that a guilty verdict should not be returned except only after appropriate scrutiny.[24]
[24]See T.214
As to exceptions actually taken at trial, Mr Meredith had submitted that the warning was the subject of an application to correct it by trial counsel for the applicant.[25] (Counsel had said to the judge that she had read something “in respect that the warning doesn’t cease to have an effect even if they do find that evidence capable of support”. She added she could provide no authority for this, “at this time”.) Mr McArdle submitted that the reality was that no exceptions or requests for redirection were made in relation to the directions as to delay in complaint and no “real” exception was taken as to the Longman warning. He cited R. v. Wright[26].
[25]T.233
[26][1999] 3 V.R. 555
Submissions as to Ground 7: Delay
Counsel for the applicant referred, in connection with this ground, to the following portion of the charge:
“It is part of the law that if what is called a recent complaint is made in a sexual case evidence of that complaint is admissible. The purpose of it being admitted is to demonstrate consistency with the evidence given about the incident or incidents. There used to be an old fashioned idea, and it may be still the position, that people who are sexually abused usually complain about it. But experience shows that there are circumstances where relationships exist, and it is argued that this is such a case. That where these relationships exist that there is a good reason why a complainant does not complain.” (220)
It was submitted that the linking of delay in complaining and any adverse affect it may have on the complainant’s credibility to “an old fashioned idea” resulted in an unbalanced direction. Counsel cited Crofts v. R.[27] and Kilby v. R.[28]
[27](1996) 186 C.L.R. 427
[28](1973) 129 CLR 460
In the matter of the directions relating to delay, Mr McArdle contended that a point having apparently been made by the applicant’s counsel touching “lack of complaint”[29] the learned judge was obliged to give directions in accord with s.61(2) of the Crimes Act 1958 and Kilby supra.[30] These directions, he submitted, did not admit of error.
[29]T.220
[30](1973) 129 CLR 460
I now turn to my conclusions.
Conclusions as to Grounds 2(c) and 8: Corroboration
As to grounds 2(c) and 8, in my opinion, it would have been open to the jury to conclude that the effect of “K.K.’s” evidence was that the applicant said he could try with (the complainant) once or twice and said, on a number of occasions, he must check if she is a virgin or not. There was other evidence from this witness which the jury were entitled to use as to when these conversations took place and as revealing the applicant’s state of mind on this matter. In cross-examination the witness was asked:
“As far as discussions about (the complainant) were concerned, there were concerns expressed to you by (the applicant), your husband, that if she went out to parties that there might be problems about her losing her virginity. Do you agree you had discussion along those lines with him?”
She replied: “She was not allowed to go anywhere. She was not allowed to go to the school excursions because according to (the applicant) 12 year old boys is going to be there, Year 6 she was supposed to go for a school excursion, and she was not allowed to have friends, she was not allowed to watch TV.”
It is to be remembered that Year 6 was 1997, which is part of the material encompassed by count 3, the whole of the period encompassed by count 7 and seven or eight months prior to the period encompassed by count 15.
To the police, the applicant said he had asked the complainant about being a virgin two or three times but he had “not checked properly”.
In my opinion, the learned judge correctly categorised all the pieces of evidence impugned by Mr Meredith as evidence capable in law of corroborating the evidence of the complainant of the offences involving digital penetration. As to the conversations between the applicant and his wife, I would accept the submissions of Mr McArdle. These conversations were indeed very specific to the relevant offences as described by the complainant. They also revealed, in the absence of some cultural explanation, a singularly unnatural attitude in a father.
I would not uphold the submissions made on behalf of the applicant in relation to “K.K.’s” observation of a black eye and the account given in his record-of-interview by the applicant. In this connection the complainant’s evidence that the applicant inflicted a black eye on her on only one occasion is of critical importance, c.f. answer 203 VATE tape: “Well, he’s only given me the black eye once”. In the light of this statement, which was not challenged, it was proper to relate “K.K.’s” evidence of her observations to the very incident described by the complainant. It was also proper to regard the applicant’s statements to the police as equivocal – as apparently the police regarded them – “…You would see a black eye on – on your daughter, wouldn’t you?” He did not by his statements remove the infliction of a black eye as an issue and it was open to the jury to take the view that he raised an issue as to his intent. I would uphold Mr McArdle’s submissions that the defence of lawful correction also raised an issue. Accordingly, it was relevant for any potentially corroborative evidence to be identified. Grounds 2(c) and 8 fail.
I now turn to my conclusions touching grounds 4 and 5.
Conclusions concerning Grounds 4 and 5: Longman Warning
Although Mr McArdle at times tended to take the line in his submissions that in this case there really was no need for a Longman warning, I proceed on the basis that it was common ground at the trial that a warning of some sort was necessary in the particular circumstances and that this was accepted by the learned judge. It is convenient to recall the matters which Mr Meredith submitted created this necessity. They were – forensic disadvantage to the applicant caused by delay in making complaint. Under this heading counsel included problems in the marshalling of evidence and the mounting of a defence – matters “permeating the whole trial on all counts”. The late amendment to counts 2 and 14 was said to compound the matter giving count 1 a timeframe of three years and count 14 a timeframe of two years. Nine of the other counts had timeframes of about 12 months. (This was characterised as “lack of particularity”.) Counsel also included, in the matter of delay, the age of the complainant at the time of the offences and its potential to affect the accuracy, and reliability of the complainant’s evidence. To that list I understood Mr McArdle to add the nature of the complainant’s evidence.
It is now necessary to look at the warning actually given by his Honour in order to see if it sufficiently addressed the above matters. Performing that exercise, it appears that his Honour dealt with forensic disadvantage to the applicant[31], linking it to delay and specifically mentioning marshalling of evidence and the mounting of a defence. These statements plainly related to the whole of the case against the applicant. A reminder as to this matter was also given.[32] The matter of delay in making complaint received repeated reference.[33] The age of the complainant at the time of the offences alleged was dealt with[34] and its potential to affect the reliability of her evidence was addressed also.[35]
[31]T.217
[32]T.223
[33]T.215-216, 222
[34]T.215
[35]T.215-217
The matter of lack of particularity in the counts was not mentioned by the learned judge. No complaint as to this was voiced by the applicant’s trial counsel and I can find no material indicating that it was an issue in the trial. On the contrary, it appears that the applicant’s trial counsel, in the course of her final address, raised (as his Honour told the jury) “…some doubt in your mind because the mother spoke in terms of different dates (to that of the complainant) in relation to the incident in the kitchen, and (the complainant) was a little equivocal about the alleged incident under the…lemon tree.” It was the raising of this matter which led to the late amendments to counts 2 and 14.
In my opinion, no disadvantage accrued to the applicant by reason of his Honour’s omission of “lack of particularity”. The defence proffered for all sexual counts was, as his Honour told the jury, “…that these things did not happen”.[36] In an exchange between the learned judge and defence counsel,[37] the applicant’s counsel allowed that this was so. Lack of particularity might well have been important in other circumstances, e.g. if the applicant wished to put an innocent complexion on particular admitted acts. But that is not this case.
[36]T.212
[37]T.230
The learned judge’s introduction to the warning given is of significance in the resolution of these grounds. He said:
“I have given you some general directions which are applicable to most criminal trials, and I now want to turn to the question of how you should consider the evidence in this particular case…the way you should approach it…” (212)
“And in giving you this warning I am not merely repeating the arguments of counsel, I am giving you directions in law which you are obliged to follow and implement in your consideration of the evidence in this case.” (213)
“So, what I, as the judge must do, is to attempt to emphatically remind you of the context in which you go about your fact finding role.” (214)
“However, the law requires me (to tell you?) that you must have particular regard to some circumstances peculiar to this case.” (215)
“The circumstances such as I have adverted to, that is the delay in complaining, which factor has been the subject of argument of counsel, the nature of the allegations, that is, allegations of criminal conduct which are not supported by corroborative evidence, the age of the complainant at the relevant times and the problems of potentially faulty recollections, to which I have referred, all point to the potential for error inherent in evidence of this nature.” (222)
It is true that in his charge the learned judge did not use the expression “dangerous to convict”. But, he referred to “dangers” of convicting on the evidence of the complainant alone and the “dangers and the potential for error” disclosed in his warning.
With respect, while his Honour’s warning cannot be characterised as a model, the question is, was it sufficient to ensure a fair trial for the applicant in the particular circumstances of the case. In my opinion it was.
I turn to Mr Meredith’s other complaints. In my opinion the judgments of Gaudron and Callinan, JJ., and McHugh, J. in Doggett stand for the proposition that there are some cases where the quality of corroborative evidence available on some counts is such as to relieve a trial judge of the duty to give a Longman direction concerning them.
“…as we have already indicated, the corroboration was capable of establishing some undefined sexual molestation, probably improper, but not necessarily criminal in the respects alleged in the counts, and therefore not of such a nature as to relieve the trial judge of a duty to direct the jury in terms of Longman…”.[38]
“An important distinction between this case and Longman is that there was no evidence corroborating the complainant’s evidence in Longman. In this case there was evidence that strongly corroborated the complainant’s evidence.”[39]
[38]Doggett, at [53], per Gaudron and Callinan, JJ.
[39]Doggett, at [65], per McHugh, J.
In my opinion, the quality of the potentially corroborative evidence available in the instant case was such that his Honour did not err in the directions he gave.
I would not uphold the submission that inadequate emphasis was given to the danger of convictions based solely on the evidence of the complainant. In my opinion, the following directions were sufficient for this purpose:
“Of course you are entitled to act upon that evidence (the evidence of the complainant) and return a verdict of guilty on it if you see fit to do so. However, you should only return a verdict of guilty based on that evidence alone if after having anxiously scrutinised the evidence, scrutinised it with great care, having considered all the circumstances that are relevant to its evaluation you are satisfied beyond reasonable doubt of its truth and accuracy.” (214)
“…To fulfil your duty of fact finding you must be fully aware of the dangers of convicting on the evidence of the complainant alone, unless having scrutinised that evidence with great care you are satisfied of its truth and accuracy.” (223)
Without repeating it, I refer, again, to the paragraph which is also at page 223 of the charge and which I set out in paragraph [99], supra. In that paragraph his Honour twice used the word “dangers” when directing the jury on this topic.,
I would not uphold the submissions that the directions given may have allowed the jury to use a finding of guilt on counts 4, 7 and 15 to bolster the credit of the complainant’s in relation to the other counts and that the jury were invited to use findings of guilt on the assault counts and a finding that the uncharged acts of violence occurred as supporting the credibility of the complainant’s evidence that the offences were committed. (It was said that the failure to attach the Longman warning to the uncharged acts aggravated this situation.)
In my opinion, there was no risk of a finding of guilt on any particular count infecting the consideration of others in the fashions alleged. His Honour directed the jury:
“It is just as night follows day, simply because you take a position on one count, whether it be guilty or not guilty, put it aside; consider the evidence relevant to the next count…But each count has to be given separate consideration and I repeat, it would be wrong to say that because you reach a verdict on one that that really has any influence on the facts relating to the next one. Consider it, put it on one side. Separate consideration. Each count must be considered separately and in the light of the evidence that is applicable to it.” (196)
(This part of the charge also makes it clear that each count had been “compartmentalised” for the jury by the Crown Prosecutor in his final address.)
It is also my opinion that the directions the learned judge gave touching the uncharged acts left no room for evidence touching them to be misused.[40]
[40]T.221, 225-226
In the matter of the submission that the evidence of the uncharged acts of violence and sexual misconduct should have been included in the Longman warning, Mr Meredith, as I understood him, accepted he could cite no authority. This is unsurprising for it would be remarkable for such acts to be admitted in evidence if they were remote in time from the offences charged. In the instant case, it must have been obvious to the jurors that, in as much as they fell within the timeframe of the alleged offences, the matters adumbrated in the warning applied with equal force to them. It is sufficient to say that, having read the relevant part of his Honour’s charge, I cannot see that a reasonable jury would fail to appreciate that they should consider the evidence of such acts in the light of the warning given. Because of the very limited issue raised in the assault counts, in my opinion it was unnecessary for his Honour to relate the Longman warning to them.
Conclusions as to ground 7: Delay
As to ground 7, there is, in my view, no substance in the contention relating to his Honour’s use of the expression “There used to be an old-fashioned idea.” In my opinion the jury would have understood it as an expression which contrasted an ill-informed, unauthoritative view with the clear legal position. I cannot see its use occasioned any forensic disadvantage to the applicant.
In my opinion, the applicant has not made good any of the grounds of his application for leave to appeal against conviction, and the application should be dismissed.
Application for leave to appeal against Sentence
It will be recalled that only ground 8 was argued. Of the matters to which it was alleged the learned judge gave insufficient weight, he specifically mentioned, in his reasons for sentence, the applicant’s personal circumstances; his previous good character; his psychological and physical condition; his cultural background and his lack of prior convictions. It is true that his Honour did not specifically advert to the issue of rehabilitation in his reasons, but it is not to be supposed that he overlooked that matter. On the plea, the evidence of the witnesses “B” and “C” was plainly pointed at that topic and was followed by an exchange between his Honour and the applicant’s counsel.
Counsel:“And rehabilitation aspects as well. Your Honour’s well aware of those.”
His Honour: “Yes.”
As I understood counsel, he argued that it was incumbent on the judge to make an “express finding” in relation to the matters set out in the previous paragraph. (Presumably “I find the applicant has no prior convictions and I take that circumstance into account”.) If no such finding was made, so the argument went, it followed that the factor had not been accorded adequate weight in the sentencing discretion.
Such an argument, in my view, has no basis in authority. On the contrary, the sentencing judge is not obliged to specifically mention every matter he has had
under consideration. In this application, no identifiable error has been otherwise argued. In those circumstances, one then is obliged to look at the face of the sentence for evidence that in some way the judicial discretion has miscarried in the manner alleged. Performing that exercise, I am unable to find such evidence. Specifically, the term of the non-parole period fixed is consistent, in my view, with a deal of weight having been given by his Honour to rehabilitation. I am far from satisfied that this sentence, substantial though it be, is in any way the product of a judicial failure to give proper weight to relevant matters. To my mind, after giving due weight to matters personal to the applicant, the continuance and serious nature of his offending; his lack of remorse and the emotional damage inflicted on the complainant made a sentence to the order imposed inevitable. I would dismiss this application.
Conclusion
In my opinion, the applications for leave to appeal against conviction and sentence should be dismissed.
ORMISTON, J.A.:
On these applications I am in agreement with the Chief Justice that they should each be dismissed. The circumstances giving rise to the applications and the various submissions appear in his judgment.
In my opinion none of the grounds argued before this Court ought to succeed. The grounds relating to the conviction all arise out of the giving of a Longman warning.[41] I am by no means persuaded that the relevant delay and other factors were such as to require the giving of such a warning, but I deal with the matter upon
other occasions, the necessary elements were stated and repeated on a number of occasions and it was made abundantly clear that it would be dangerous to convict in the circumstances “on that evidence alone”.[42] The jury were correctly directed that there was no possible corroboration in respect of nine of the counts relating to sexual offences but that in relation to three other sexual offences the jury might find that there as corroboration. I do not accept that there was not an appropriate warning in respect of those other three counts. Properly understood the later High Court cases such as Doggett v. The Queen[43] do not require the jury to be told that it is dangerous to convict even though there is adequate corroboration. What those cases decide is merely that, unless there be exceptional circumstances, the jury should be warned in relation to all relevant counts despite the existence of apparently strong corroborative evidence, so that it should be left to the jury whether that evidence is accepted and provides sufficient corroboration to overcome the “danger” expressed in the warning which is required to be generally given. The question of corroboration was not taken away from the jury in this case. The other matters raised were of no ultimate consequence and in particular a complaint about the the agreed assumption that it was necessary. The two grounds related generally to the adequacy of the warning (grounds 4 and 5) but, although the warning was inelegantly expressed[44] and is therefore by no means a model to be emulated on particularity of the charges was one which counsel at the trial did not see fit to raise by way of exception.
[41]Longman v. The Queen (1989) 168 C.L.R. 79.
[42]Longman at 91. The use of the word “alone” clearly refers back to the expression “the uncorroborated evidence of the complainant” which appears at the beginning of the paragraph at p.90.
[43](2001) 75 A.L.J.R. 1290.
[44]It unfortunately broke up the necessary directions by dealing first with corroboration and then, several pages later (in the transcript), giving a general Longman warning.
The two grounds which raise corroboration in a more specific way (grounds 2(c) and 8) have likewise not been made out, in my opinion. The items of evidence relied upon by the Crown and made the subject of directions by the judge were in my opinion capable of providing corroboration in relation to the relevant counts.
Both the admissions relating to the assaults and the conversations relating to the complainant’s virginity were capable of being used by the jury in the manner left open to them by the judge. Nothing in what the judge said would lead me to the conclusion that there was any miscarriage by reason of his directions on this subject. Likewise there was no error by the judge in admitting into evidence the conversations complained of in ground 2(c).
As to ground 7, it is sufficient to say that the comment made in the course of the judge’s charge relating to recent complaint, which is not otherwise challenged, is not such as to lead to the conclusion that there was a miscarriage of justice by reason of that comment.
I would therefore dismiss the application for leave to appeal against conviction. Likewise for the reasons stated by the Chief Justice I would dismiss the application for leave to appeal against sentence.
EAMES, J.A.:
For the reasons given by the learned Chief Justice, I agree that the applications for leave to appeal against conviction and sentence should be dismissed.
---
3
3
0