R v Glennon (No 2)
[2001] VSCA 17
•16 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 332 of 1999
No. 333 of 1999
No. 334 of 1999
| THE QUEEN |
| v. |
| MICHAEL CHARLES GLENNON |
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JUDGES: | WINNEKE, P., ORMISTON and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28, 29, 30 and 31 August 2000 | |
DATE OF JUDGMENT: | 16 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 17 | |
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Criminal law – Sexual offences against children – Pre-trial publicity – Whether trial to be stayed – Adverse publicity during trial – Whether jury to be discharged – Severance – Propensity evidence – Whether rightly admitted – Directions concerning such evidence – Collusion – Innocent infection – Longman warning – When required – Whether sufficient – Proximate complaint – Absence of proximate complaint – Alleged failure of prosecution to call relevant witnesses – Jones v. Dunkel direction – Two presentments – Re-trial directed on second presentment – Sentence of eight-and-a-half years’ imprisonment affirmed on first presentment – Non-parole period of six-and-a-half years fixed – Crimes Act 1958, ss.61, 398A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms. M. Sexton | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. G.J. Traczyk | Jamieson & Co. |
WINNEKE, P.
ORMISTON, J.A.:
The applicant, Michael Charles Glennon, is now aged 56 years. He was ordained as a Roman Catholic priest for the Archdiocese of Melbourne in May 1971. In January 1974 he was appointed assistant priest at St. Monica’s Church in Moonee Ponds. He remained at that Church in that capacity until January 1977 when he was appointed assistant priest at St. Gabriel’s Church in Reservoir where he remained until 15 April 1978 when he was given leave from his appointment. Thereafter he ceased to be a practising Catholic priest but, pursuant to authority granted by the Archbishop, he continued to celebrate Mass privately, and to preside at weddings and other family celebrations. On 30 March 1984 the Archbishop accepted the applicant’s resignation from the priesthood and withdrew his authorization to exercise the priesthood in any manner. On 17 May 1999 the applicant was laicised.
During his tenure at St. Gabriel’s Church in Reservoir, the applicant was instrumental in setting up an organization known as “the Peaceful Hand Youth Foundation”, of which he became Governing Director. The Foundation had premises at Lancefield in the State of Victoria known as “Karaglen”. It encouraged the youth of Victoria, particularly those involved with the Church, to join in activities at “Karaglen” and at other places within the State. The applicant was particularly interested in training young children in the art of karate. He also had an interest in scouting activities, drama and sport.
In 1978, the applicant was convicted of indecently assaulting a girl under the age of 16. He became notorious, at least in this State, in 1985 when he gave evidence against two young men (one of whom was his nephew), who were accused of assaulting him. In that case, the accused (who were convicted) alleged that the applicant had raped one of them. These allegations attracted the attention of the Melbourne media and wide publicity was attracted to the proceedings. As a consequence, the police investigated the applicant’s activities and, in November 1985, he was charged with a number of offences of sexually interfering with young children. Following this, again in November 1985, a radio broadcaster named Hinch mounted a public attack on the applicant, the effect of which was to suggest that he was using his position as a priest to solicit members of the community into his youth camps for the purposes of his own sexual gratification. The publications revealed, and laid emphasis upon, the applicant’s prior convictions. Hinch was later charged with contempt of court, as a consequence of which further widespread publicity was attracted to the activities of the applicant.[1] Hinch was convicted of the contempt charge, and in the course of his judgment, the trial judge, Murphy, J., said:
“In my opinion the broadcasts, and each of them, would have influenced most listeners to conclude that [the applicant] was a despicable man, a dissembling priest, who corrupted young people after using his pseudo-clerical position to gain their trust.”
Hinch was gaoled for a brief period in 1987 and released on 26 October of that year. In December 1987, the applicant was presented for trial on the charges which had previously been preferred against him and which had been adjourned pending the finalization of the proceedings against Hinch. In August 1988, an application was made for a permanent stay of the proceedings on the basis that the applicant would be unable to receive a fair trial because of the pre-trial publicity. This application was rejected and, ultimately in 1991, the applicant was convicted in the County Court of 5 of the charges alleged against him and acquitted of another 12 charges. The applicant then appealed to the Court of Criminal Appeal against the convictions in part on the basis that the trial had miscarried on the grounds that the applicant could not be fairly tried because of the prejudicial publicity, and that the convictions recorded were, as a result, unsafe. A majority of that Court (Southwell, J. dissenting) held that the verdicts were unsafe and unsatisfactory due to unfairness engendered by the pre-trial publicity as to the applicant’s prior convictions. This decision was subsequently overturned by the High Court[2] and the matter was remitted to the Court of Criminal Appeal to deal with the outstanding grounds of appeal. In the event, the appeal was dismissed and the applicant was required to serve the sentence imposed of 9 years 1 month with a minimum of 7 years.[3] On further appeal to the High Court, a conviction in respect of one count was quashed, but this did not materially alter the length of sentence to be served.[4]
[1]See Hinch v. Attorney-General (Vic.) (1987) 164 C.L.R. 15.
[2]R. v. Glennon (1992) 173 C.L.R. 592.
[3]R. v. Glennon [1993] 1 V.R. 97.
[4]Glennon v. R. (1994) 174 C.L.R. 1.
All of the matters to which we have referred served to ensure that the applicant was well known for his sexual exploits by 1992. Shortly before he was released from prison on 11 November 1997, he was again charged with a large number of sexual offences against different complainants, of most of which he was subsequently convicted. It is those convictions which are the subject of these current applications. On 31 March 1999 the applicant was presented for trial in the County Court on a presentment alleging 65 counts of sexual offences against 15 different complainants. On 13 April 1999 the applicant applied for a permanent stay of all counts on the basis that he could not receive a fair trial or, alternatively, that the presentments should be severed to allege counts only as against the several complainants. It was contended that the evidence of the complainants was not mutually admissible as "propensity evidence" within the meaning of s.398A of the Crimes Act 1958 (Vic). On 16 April 1999, the trial judge refused the application for a permanent stay but accepted the Crown’s proposal to sever the 65 count presentment to cater for 3 separate trials. Accordingly on 3 May 1999 Presentment No. L00788167A was “filed over” alleging 29 counts of various sexual assaults committed between May 1974 and May 1978 against 6 separate complainants. Her Honour ruled that the evidence of the complainants was mutually admissible and should be admitted pursuant to s.398A of the Crimes Act. The applicant was arraigned on this presentment on 5 May 1999. He pleaded not guilty and, on 31 May 1999 he was convicted on all counts, save counts 6, 7, 8, 10 and 29. (We will call these proceedings “the first trial”.) Counts 6, 10 and 29 were “alternative counts” and no verdicts were taken on them. The jury returned verdicts of Not Guilty on counts 7 and 8. During the course of the trial, namely on 14 May 1999, an article was published in the “Australian” newspaper entitled:
“Radio Switches Hinch off – again.”
In the body of this article, it was reported:
“In 1987 [Hinch] went to jail for a fortnight over his comments on the prior convictions of Michael Glennon, a former priest who had been charged with molesting children.”
Following the publication of the article, an application was made to the trial judge for the discharge of the jury. Her Honour refused the application.
Following the applicant’s convictions in the first trial, he was remanded for sentence pending the outcome of the further proceedings.
On 2 June 1999 the Crown filed over a further presentment (No. L00788167B) alleging 10 counts of sexual misconduct by the applicant against 5 complainants between 1 January 1982 and 31 December 1984. On 1 September 1999 the applicant’s counsel again applied for severance of the presentment as between each complainant, again contending that the evidence of complainants was not mutually admissible. The trial judge refused the application and the applicant was arraigned and pleaded not guilty to the 10 counts on 2 September 1999. The jury was discharged without verdict on 15 September 1999 following inadmissible evidence being given by one of the prosecution witnesses. The applicant was arraigned before a fresh jury panel on 20 September 1999 and the trial proceeded. On 8 October 1999 the applicant was convicted on all counts, save count 2, on which he was acquitted. (We will call these proceedings "the second trial").
On 8 October 1999 the Crown filed over two further presentments alleging sexual offences against the applicant in respect of 4 further complainants. On 5 November 1999 the applicant was arraigned on those presentments. On 9 November 1999, her Honour directed the jury to return a verdict of Not Guilty on count 1 on the first presentment, and the jury was discharged without verdict on the remaining counts; and the trial was adjourned until 15 November 1999. On that day an application was made, on the applicant’s behalf, for a permanent stay of the trial, alternatively a stay of 6 months, on the basis that an article published in the “Sunday Age” on 14 November 1999 had prejudiced the fair trial of the proceedings. The Crown opposed the application for a permanent stay but agreed that the trial should be adjourned until the following year. On 26 November 1999 the trial judge directed that the trial be adjourned and ordered that it should not commence before a further period of 6 months had elapsed. That trial is still to be heard. Accordingly, this Court has suppressed publication of these proceedings until the adjourned proceedings against the applicant have been determined.
On 26 November 1999, her Honour heard pleas in mitigation of penalty in respect of the convictions which had been recorded on 31 May 1999 and 8 October 1999. In respect of the convictions recorded on the 24 counts at the first trial, her Honour ordered sentences of imprisonment ranging between 2 and 6 years and, following orders for concurrency, imposed a total effective sentence of 8½ years. On the 9 convictions recorded on counts in the second trial, the trial judge imposed sentences of imprisonment ranging from 1½ years to 5 years. Following orders for concurrency, she imposed a total effective sentence of 6 years, which she directed to be served cumulatively upon the sentence of 8½ years imposed on the first presentment. Thus, the applicant was ordered to serve a total sentence of 14½ years. Her Honour directed that he serve a minimum term of 12½ years before being eligible for parole.
The applicant has applied to this Court for leave to appeal against the convictions recorded in each trial and also for leave to appeal against the sentences imposed. Before we turn to consider the grounds of appeal against conviction, it is desirable to briefly rehearse the evidence given at the two trials.
The First Trial
As we have previously noted, the applicant pleaded not guilty, at the first trial, to a presentment which contained 29 counts alleging offences against 6 complainants. Counts 1-11, inclusive, alleged the commission of offences against a complainant whom we shall call “PMD”. These offences were alleged to have been committed between January 1974 and January 1977 when PMD was aged between 10 and 13 years. Counts 1-4, 6, 7 and 9 alleged indecent assaults on a child under 16 years, counts 5 and 11 alleged attempted buggery of a child under 14 years, count 8 alleged an offence of buggery of a child under 14 years and count 10 alleged a count of gross indecency against a child under the age of 16. As previously noted, no verdicts were taken on counts 6 and 10, as they were alternatives to counts 5 and 9. The applicant was acquitted of counts 7 and 8. PMD, who was aged 36 at the time of trial, was living with his parents and 5 sisters in Moonee Ponds at the time when the alleged offences occurred. His parents were regular church goers, and attended St. Monica’s Roman Catholic Church in Moonee Ponds where the applicant was the parish priest. PMD was, at the relevant time, a pupil at St. Monica’s school, and was also receiving instructions from the applicant as an altar boy at the church. PMD, his sisters and parents, held the applicant in high esteem, particularly because of his involvement in youth affairs as scout leader, karate instructor and football coach. PMD’s parents regularly invited the applicant to their home. The offences which were alleged to have been committed by the applicant against PMD were said to have occurred on five separate occasions. Those alleged in counts 1-4 were said to have occurred when the applicant invited PMD to attend a scout camp at “Rowallan” near Romsey, when PMD was 10 or 11 years of age. Counts 5 and 6 alleged offences said to have occurred in the presbytery of St. Monica’s Church following a wedding at which PMD had participated as an altar boy. The offence in count 11 was alleged to have occurred in the same room. The offences alleged in counts 7 to 8 were said to have occurred at a camp “somewhere to the north or west of Melbourne” to which PMD had been taken by the applicant; and the offences alleged in counts 9 and 10 at a “Karate camp” at "Karaglen" when PMD was 12 or 13 years old. PMD deposed that he had been taken there by the applicant and that he was there assaulted by the applicant in the applicant’s car. PMD said that, shortly after these events, the applicant had endeavoured to assault him in his car in the garage at St. Monica’s presbytery. PMD had forcefully resisted the applicant’s advances and thereafter he said, the applicant ceased to take any sexual interest in him.
Counts 12-19 alleged offences committed by the applicant against a complainant (whom we shall call “FW”) who was born in February 1960, and was aged 39 years at the time of trial. The offences alleged were said to have been committed in 1975 and 1976 when FW was aged 14 or 15 years. FW also attended St. Monica’s primary school and St. Monica’s church. He, too, admired the applicant and was a member of the applicant’s “Karate club”. The applicant was invited by FW’s parents to their home. The offences alleged in counts 12 to 16 (indecent assaults) were said to have been committed when FW was 14 years of age and had been “out with the applicant with some other boys”. The applicant was alleged to have assaulted FW in his car in the garage of the church presbytery. Count 17 alleged an offence of indecent assault which was said to have occurred in the applicant’s private quarters in the presbytery shortly after the offences alleged in counts 12 to 16. On this occasion the applicant was said to have shown FW some pornographic magazines, following which he had engaged in an act of “simulated intercourse” with FW. Count 18 alleged an indecent assault said to have occurred when FW was 15, when the applicant had invited FW for a drive. When they returned, it was alleged that the applicant had parked his car outside FW’s home and engaged in an act of “simulated intercourse” with him on the front seat of the car. When FW was “nearly 16” he went with the applicant and 2 “older boys” in the applicant’s car. They stayed overnight at a motel “somewhere”. FW shared a room with the applicant and the two “older boys” shared a different room. During the course of the night, FW alleged that the applicant had penetrated his anus. This was the offence of buggery alleged in count 19. The applicant was convicted of each of the counts involving FW.
Counts 20 and 21 alleged offences of indecent assault in the years of 1975 and 1977 respectively involving a complainant, whom we shall call “CDS”. At the time of the commission of these alleged offences, CDS was aged respectively 12 and 14. At the time of trial, he was 36. CDS was also, at the time of the alleged offences, an altar boy at St. Monica’s Church. CDS and his parents were admirers of the applicant who was frequently invited to CDS’s house. In 1975, the applicant invited CDS to attend a “football camp” at “Beaumont Farm” at Gisborne, where CDS said he was invited to sleep in a room occupied by the applicant. Count 20 alleged that, on this occasion, the applicant had engaged in an act of “simulated intercourse” with CDS. CDS said that he was “in shock” as a result of this conduct and that on the following day he had been taken on a “rabbit shooting expedition” by the applicant with three other boys – namely the complainant PMD, one Soundry and one Tota. On that night, according to CDS, he was told to sleep in the “TV room”, and Tota was invited to sleep with the applicant. In 1977, when CDS was 14, he was taken by the applicant to see a “Bruce Lee” film at a drive-in theatre with three other boys – namely the complainant FW, Tota and one Eyles. CDS said he was sitting next to the applicant in the front seat of the applicant’s car. FW was in the front seat to his left. Tota and Eyles were in the back seat. The applicant, according to CDS, placed a blanket over himself and CDS and, during the course of the film, the applicant took CDS’s hand and made him masturbate the applicant under the blanket. This was count 21. FW and Eyles also gave evidence concerning these events, but Tota was not called.
Counts 22 to 26 alleged five indecent assaults committed by the applicant against a complainant, whom we shall call “EA”, on two separate occasions in 1977. EA, who was born in April 1964, was about 13 or 14 when the alleged assaults occurred. He was 35 when he gave evidence. In 1977, he lived with his parents in Reservoir, and the family attended St. Gabriel’s Roman Catholic Church where, in January 1977, the applicant had been appointed assistant priest. EA was an altar boy at the church and was a member of the “Karate club” which the applicant had established. During the 1977 year, EA was taken by the applicant to a “Karate camp” at "Karaglen" in Lancefield. The applicant took EA in his station wagon with two other young children, who were brothers and who were also complainants making allegations against the applicant at his trial. We will call them “JS” and “CS”. At the camp, EA said that he and the other young children present had erected tents in which they expected to sleep. At this time no buildings had yet been constructed at "Karaglen". EA said that, following dinner, the children were seated around the camp fire, and that the applicant had spoken to them about “sexual matters”. Later in the evening the applicant had singled him out and asked him to sleep with him in the station wagon. In the course of the night, so EA alleged, the applicant had masturbated him, had encouraged EA to masturbate the applicant, and that the applicant had then engaged in an act of “simulated intercourse” with EA. These acts were the subject of counts 22, 23 and 24 (indecent assaults) of which the applicant was convicted. Some 2 months later, so EA alleged, the applicant invited him to attend another “Karate camp” at "Karaglen". EA asked whether he could bring his friend “John”. He said that there were “about 8 boys” at the camp and that 4 tents were pitched, one of which was to accommodate EA and his friend. EA testified that the applicant had said he would sleep in their tent and placed himself between EA and John. During the course of the night EA awoke to find the applicant masturbating him. He then pulled EA’s sleeping bag down, climbed on top of EA and slid his penis between EA’s buttocks, again simulating an act of intercourse. These events were the subject of counts 25 and 26 of which the applicant was convicted.
As we have noted in the preceding paragraph, the remaining two complainants to give evidence against the applicant upon this trial were the brothers JS and CS. JS was born in November 1967 and was 31 years of age at the time of trial. CS was born in May 1969 and was 30 years of age at the time of trial. They were both pupils of St. Gabriel’s school in Reservoir and attended St. Gabriel’s Church where the applicant was assistant priest. The events which they described were alleged to have occurred on two discrete occasions between January 1977 and May 1978. They were the subject of counts 27-29 on the presentment. Both JS and CS said that they and their parents were admirers of the applicant who was often invited to attend their home. Each was a member of the applicant’s “Karate club”. JS said that at a time, which he thought was “in 1978”, he went with the applicant to a “Karate camp” at "Karaglen" in Lancefield. There were “lots of children” at the camp. His parents also attended but he could not recall with whom he travelled, save that he recollected that the applicant’s vehicle had been involved in an accident. He said that his parents slept in their van at the property, but that he was invited by the applicant to sleep in his (the applicant’s) tent. During the course of the night, JS said that the applicant had pulled down his sleeping bag, turned him over onto his front and placed his (the applicant’s) penis between his buttocks. This was the count of indecent assault alleged in count 27, of which the applicant was convicted.
Some little time after the events described in the preceding paragraph, the applicant was – according to both JS and CS – invited to visit the family house at Flowerdale. JS said that the applicant had invited CS to sleep with him in his station wagon. He said that CS was excited and keen to do so, but that he (JS) had “warned” his brother against it. CS gave evidence that the applicant had invited him to sleep with him in his station wagon and that he wanted to do so. He said that he was permitted to do so by his mother. CS said that, during the course of the night, the applicant had pulled his sleeping bag and his pyjama pants down, had pushed his legs up in the air and had attempted to penetrate CS’s anus with his penis. CS said that it was extremely painful and that “he could not believe what was happening”. He could not say whether the applicant had penetrated him but that eventually he had lowered CS’s legs and put his penis between them and under CS’s testicles. On the following morning CS said that the applicant told him “not to tell anyone” and that it was “our secret”. However, after the applicant had left in the morning, CS had spoken to his mother but had not given her “details” of what had occurred. CS’s mother (DS) gave evidence in which she said that the applicant had visited the house at Flowerdale and that CS had slept in the applicant’s vehicle. On the following morning, after her husband had left for work, she had noticed that CS was looking “uneasy”. She said that CS had told her that the applicant had been “messing around with him”, and that JS had said “he tried with me too, mum”. The events which CS described were the subject of counts 28 and 29 on the presentment; namely attempted buggery and indecent assault. The latter count was alleged as an alternative to the offence of attempted buggery. The applicant was convicted of the attempted buggery and no verdict was taken in respect of the offence alleged in count 29.
Although in her directions to the jury in the course of the first trial, the judge had instructed the jury that there was no “direct” or “external” evidence capable of supporting the evidence of any of the complainants, it would seem, upon analysis of the evidence given, that such construction was favourable to the applicant. Indeed her Honour had permitted all counts on the presentment to be tried together on the basis that the evidence of one complainant was admissible upon the trial of the counts involving the other complainants. Furthermore, in respect of the evidence given by individual complainants, there was other evidence given which, in our view, was capable of being used by the jury to support such evidence. In respect of the evidence of PMD, one Gallant gave evidence that, at Rowallan, the applicant had selected PMD to sleep with him in his room. One Baker had given evidence that he had been an altar boy with PMD at St. Monica’s and that, on one occasion, the applicant had invited him and PMD to his room in the presbytery and shown them a pornographic magazine showing young boys committing homosexual acts with each other. With regard to the evidence of FW that he had been assaulted by the applicant at a motel to which he and other boys had been taken by the applicant, one Carboni gave evidence that he was one of the boys who had gone to the motel with the applicant and FW and that while he and other boys had shared one room, the applicant had shared a separate room with FW. In respect of the evidence of CDS that he had been assaulted by the applicant at the “drive-in”, both FW and Eyles gave evidence that they had been in the car that night and that the applicant had thrown a blanket over himself and CDS. With regard to EA’s evidence that he had been assaulted by the applicant in the back of the latter’s station wagon at the camp at "Karaglen", EA’s brothers – Attilio and Oscar – gave evidence that they had been at the camp and that EA had slept with the applicant in his station wagon. Then there was the evidence of JS and his mother DS that the complainant CS had slept in the applicant’s station wagon at their property in Flowerdale.
As we have previously stated, the applicant gave no evidence at either of his trials. He had made no statements to the police. His defence – one of complete denials of sexual misbehaviour with any of the complainants – was made through his counsel. In each trial it was contended that the evidence of the complainants was contaminated as a consequence of collaboration or, in the case of individual complainants, was concocted because of a desire to receive compensation through a Commission established by the Roman Catholic Church. Although there does not appear to have been any explicit suggestion made at the first trial that the evidence of complainants was the consequence of innocent infection through the wide-spread publicity which had, since 1986, been attracted to the applicant, it was submitted on these applications that the trials had become unfair because the applicant was unable to contend that the complainants’ evidence had become infected by the notoriety attaching to the applicant through fear of alerting the jury to his previous convictions.[5]
The Second Trial
[5]cf. R. v. Best [1998] 4 V.R. 603 at 619 per Callaway, J.A.
As we have previously noted in [6], the second trial of the applicant involved a presentment which alleged 10 counts of sexual misconduct against 5 separate complainants, whom we shall call RDV, SDV, CR, MM and JC. The applicant was convicted on all counts except count 2. Each of the offences was alleged to have occurred in the bedroom of the applicant at "Karaglen" in Lancefield.
Counts 1 and 2 on the presentment alleged offences of gross indecency in the presence of RDV on two separate occasions between 1 January 1982 and 31 December 1982. RDV was born in February 1969 and was about 13 years old when the offences were alleged to have occurred. He was 30 years old at the time of trial, was married and living in Queensland. At the time when the offences were alleged to have occurred, he was living with his mother (LDV) and his brother (the complainant SDV). LDV was a member of an organization known as “Personal Attention and Care Team” (PACT), the members of which took responsibility for taking care of children at risk. In that capacity she assumed responsibility for the complainant CR and his sister Samantha. Thus, CR was known to RDV and SDV. RDV, SDV and CR joined a “Karate club” which was being run in Coburg by the Peaceful Hand Youth Foundation. The instructor was the applicant. During the year of 1982, RDV attended a camp at "Karaglen". At this time there were a number of buildings on the property. The main building included a recreation hall and, off the recreation hall, the applicant had a bedroom with en-suite facilities. On the first occasion RDV attended the camp all children other than RDV slept in the recreation hall. The applicant invited RDV to sleep in his bedroom. Whilst they were preparing for bed, the applicant spoke to RDV about football. The applicant had stripped to his underwear. According to RDV, the applicant told him that, during end-of-season trips it was common for members of football teams to engage in “masturbation competitions”. Whilst he was discussing these matters, he lowered his underwear and commenced to masturbate himself in front of RDV. He invited RDV to masturbate himself and RDV complied. Count 1 on the presentment alleged that an act of gross indecency occurred in the presence of the complainant when the applicant masturbated himself before RDV. The applicant was convicted of this offence. RDV said that he had attended another camp later in the year of 1982 when, again, he was invited to sleep in the applicant’s room. RDV said that on this occasion, the wind was howling outside and that the applicant told him a “ghost story”. He then commenced to talk about the pleasures of having sex with a woman and, as he did so, had his hand down the front of his underpants fondling his penis. This was the offence of gross indecency alleged in count 2, of which the applicant was acquitted. RDV said that he had never spoken of these events to anyone until some months after his mother had rung him in late 1995 or early 1996 to tell him that SDV had been “raped” by the applicant. He had then told his wife. Later in 1996 he learned through his mother that he could make a claim for compensation through the Roman Catholic Church. He made a statement to the police in December 1996 and, in early 1997, he received compensation of $44,000. RDV said that when his mother had first told him that SDV had been raped by the applicant, she had asked him whether he had been sexually molested and he had said “No”. RDV said that he believed that SDV had been with him at the first camp he attended at "Karaglen" but he could not recall whether SDV had slept in the applicant’s room.
SDV was born in July 1970 and was 29 at the time of trial. He, too, knew the applicant as the instructor of the “Karate club” in Coburg. He said that he had attended only one camp at "Karaglen" when he was about 12 years of age. He said that there were some 20 students who attended and the applicant had asked whether any of them wished to sleep in his room. He said that he, RDV and another boy were chosen. He said the three of them had slept in the applicant’s room that night. The applicant had told them “ghost stories”. So far as he was aware, nothing had happened during the night, but in the morning the other boys had left the room and the applicant got out of his bed and lay on the floor next to SDV, who was in his sleeping bag. The applicant put his hand inside the sleeping bag and fondled SDV’s penis. This was the offence of indecent assault alleged in count 3. SDV then rolled over to prevent the applicant from continuing. He said the applicant then pulled down the sleeping bag, and then SDV’s pyjama pants, and inserted his penis into SDV’s anus. SDV asked him to stop but he did not until he had ejaculated. He told SDV not to “tell anyone” what had happened. SDV left the room and washed himself in the toilet in the recreation hall. These events were the subject of count 4 which was an allegation of rape. SDV told no one of these events until some time in 1995 when he had become drunk and told a friend NG who, in turn, told his mother in October 1995. SDV said that, during 1996, he had also made a claim for compensation from the Roman Catholic Church and had received “about $42,000”.
LDV, the mother of RDV and SDV, said that she had joined the organization PACT in 1981 and had taken responsibility for the complainant CR and his sister Samantha. She said that in 1982 she had taken RDV, SDV, CR and Samantha to a karate camp at "Karaglen". She had left the children in the applicant’s care and returned home. She said that, following this camp, SDV had ceased karate and never returned to "Karaglen". She further said that, in October 1995, she had been told by NG that SDV had been sexually abused by the applicant and that, some weeks later, she had rung RDV in Queensland to tell him. She said that, in or about March 1996 she had read an advertisement by a solicitor in the newspaper seeking victims of sexual abuse and had sought and received information about rights to receive compensation. Thereafter she had instructed a solicitor named Forster, of the firm Hollows, to apply for compensation from the Roman Catholic Church. She believed that this was in or about October 1996 after she had learned from RDV’s wife that RDV was also alleging that the applicant had assaulted him. Although she denied having told the police informant Tyler that CR was a “victim”, Tyler gave evidence that, after he had spoken to CR on 23 September 1997, during which CR had denied to him that he had been a “victim” of the applicant, LDV had rung him to advise that CR had made disclosures to his father, and that Tyler should return and interview CR again.
CR was born on 20 May 1970 and was 29 at the time of trial. He said that he had been a member of the applicant’s “Karate club” from the time he was 9 or 10 years of age. He had been to many camps at "Karaglen". He said that, at one such camp which he had attended when he was 12 or 13 years old, he had spoken to the applicant in his bedroom. The applicant had put his hands down the front of CR’s shorts and masturbated him. This was the offence of indecent assault alleged in count 5. Immediately after this event, CR said that the applicant had leaned forward and taken CR’s penis in his mouth. Then he had grabbed CR by the back of his head and pushed it forward towards his lap and placed his (the applicant’s) penis into CR’s mouth. This was the offence of oral rape alleged in count 6. CR said that he had vomited and that the applicant put his arm around him saying “God forgives you because you tried”. He said that he had continued with karate thereafter because he liked it. He did not tell anyone about these events because he was “too afraid”. In cross-examination, he said he recalled one occasion when LDV had taken him, his sister, RDV and SDV to a camp at "Karaglen". On that occasion, he recalled that the four of them had slept in the recreation hall. He also conceded that when he had been first approached by the informant, Tyler, on 23 September 1997 he had made a statement saying that he had “never been assaulted in any way” by the applicant. He said that, after the police had left, his father had seen him in a distressed state and that, when the police had returned, he had made another statement. He admitted that he had a long criminal history pre-dating 1982 and was facing charges at the time he made his statement implicating the applicant. He could not say when the assaults upon him occurred – it “could have been 1982, 1983 or 1984”. After he had made his first statement to the police, he had written some notes in which he said that the applicant “had tried to put his penis in my mouth”.
The complainant MM was the only female complainant in the two trials. She was approximately 32 years of age at the time of trial and gave evidence of events which occurred in 1982, when she was approximately 14 years of age. MM was the sister of PMD who had, as we have previously noted, given evidence at the first trial of assaults committed by the applicant upon him between 1974 and 1977. The events about which MM gave evidence were the subject of count 7 on the presentment which alleged an indecent assault by the applicant upon her at "Karaglen" “on or about the 9th day of October 1982”. MM said that she had first met the applicant when she was 6 or 7 years of age whilst he was the priest at St. Monica’s Church. Her family, she said, respected the applicant, and she (MM) adored him. After the applicant had left St. Monica’s, her family maintained contact with him, and in 1982 she had joined the “Images Theatre Company” which was established by the Peaceful Hand Youth Foundation. MM said that on 8 October 1982 she had attended a week-end camp at "Karaglen" with other members of the group. She was able to nominate the date by reference to a diary which she maintained. She said that the applicant had driven her and a friend to the camp and that, on the way, the applicant had told her that he was “falling in love” with her and that “when priests were allowed to marry, he would marry her". She said that, on the Saturday night, an argument had developed between members of the group. Although she was not involved she had become upset. The applicant had called a number of children, individually, into his room. When she was called in, he closed the door and told her that there were some girls in the group who wished to sleep with him but he had declined. MM said that she was seated on a bed in the room. She then lay on it. The applicant, she said, lay next to her and kissed her on the lips inserting his tongue into her mouth. She pulled away and said “No”. MM said that the applicant had then taken her hand and placed it on his groin. He said, according to her, that there was “no erection” and that therefore there was “nothing sexual” about his conduct. The indecent assault alleged by the Crown was the taking of MM’s hand and placing it upon the groin of the applicant. MM said that she had been more offended by the kiss because it was “so intrusive”. In cross-examination, she said that she had recorded the applicant’s conduct towards her; not in her diary but on a separate sheet of paper which she had given to the police. When produced that sheet had the allegations crossed out. She conceded, however, that she had made an entry in her diary on 16 September 1982 which read:
“Sometimes I wonder if it’s all that terrible. God, it was only a kiss; then again it was forced by a priest. What to do? I’ve thought about writing to Derryn Hinch who seems to know a hell of a lot about what I went through.”
MM’s mother gave evidence that MM had told her, when MM was about 20 years of age, that the applicant had kissed her, but agreed that – as with the diary note – no mention had been made about placing her hand on his groin.
JC was the last of the complainants to give evidence against the applicant at the second trial. He was 29 years old at the date of trial, and approximately 12 years of age when the events which he described occurred. Those events were the subject of counts 8, 9 and 10 on the presentment. Each was alleged to have occurred at "Karaglen" between 1 January 1983 and 5 February 1984. Counts 8 and 10 alleged an offence of indecent assault; count 9 alleged an offence of anal rape. The applicant was convicted on each count.
JC said that he was, in 1983, a member of the karate club established and run by the applicant. In or about April or May of that year he had attended a “junior camp” for members of the club at "Karaglen". He said that, on the first night of the week-end camp, the applicant had asked him to give his sleeping bag to one of the other boys who had not brought one. He invited JC to sleep with him. Before going to bed JC had joined the applicant and other boys around a camp fire on the premises. Later JC had returned with the applicant to the latter’s room. Two aboriginal boys were also in the room sleeping on the floor. Whilst in the room, the applicant produced some pornographic magazines and showed them to JC According to JC, the other boys were asleep. The applicant and JC were in the bed together and the applicant had fondled JC’s penis until it became erect. This was the offence alleged in count 8. Thereafter, so JC said, the applicant had asked him to lie back on the bed with his knees bent. The applicant inserted his penis into JC’s anus. JC said it hurt and the applicant desisted. These events were the subject of count 9. The applicant told him not to be concerned because he was undergoing a test of endurance similar to initiation rites practised by the aborigines. JC went into the adjoining bathroom to wipe himself down and returned to the bed. Thereafter the applicant had rolled JC onto his back and placed his penis between JC’s legs, engaging in an act of simulated intercourse. These events were the subject of the indecent assault alleged in count 10. JC had made a statement to the police about these events in 1991 at a time when he was aware of publicity concerning the applicant. He later received some $7,500 in compensation.
JC’s uncle, sister and mother each gave evidence of behavioural changes in JC when he was 13 or 14 years old. The uncle and mother said that, at or about the time when they noticed the behavioural changes, JC had told them that he had been raped by the applicant.
Grounds of Appeal – First Trial
The grounds in support of the application for leave to appeal against the convictions recorded at the first trial were twelve (12) in number. Some of them were, however, inter-connected. Thus grounds 1 to 3 asserted that the trial judge was in error in concluding that the evidence of each complainant was relevant and admissible on the counts relating to the other complainants (ground 1); that the judge erred in failing to sever the counts relating to one complainant from the counts relating to other complainants (ground 2); and that the trial judge’s directions to the jury as to the use “which they could make of propensity evidence” were inadequate (ground 3). Further, grounds 5 and 6 asserted that the judge failed to properly direct the jury in accordance with Kilby v. R.[6] (ground 5) and failed to give proper directions as to evidence of recent complaint (ground 6). Ground 7 was inter-connected with ground 8; the former asserting that her Honour had erred in admitting hearsay evidence to explain the failure of the prosecution to call relevant witnesses, and the latter that she had failed to properly direct the jury in accordance with Jones v. Dunkel[7]. The remaining grounds were as follows:
(a)that the judge “failed to properly direct the jury in accordance with Longman v. R. (1989) 168 C.L.R. 79” (ground 4);
(b)that the judge “failed to adequately put the defence case in her summing-up” (ground 9);
(c)that the judge erred “in failing to order a permanent stay on the basis of adverse pre-trial publicity” (ground 10);
(d)that the judge erred “in failing to discharge the Jury as a result of adverse media publicity during the trial” (ground 11);
(e)that her Honour erred “in admitting evidence which only showed the applicant as having a propensity to commit sexual offences” (ground 12).
[6](1973) 129 C.L.R. 460.
[7](1959) 101 C.L.R. 298.
For the reasons given by Callaway, J.A. – whose judgment we have had the benefit of reading in draft form – we agree that grounds 1, 2, 3, 5, 6, 9 and 12 must fail. We, accordingly, confine our attention to the remaining grounds.
Ground 4; “failure to properly direct the jury in accordance with Longman v. R. (1989) 168 C.L.R. 79”
The applicant here complains that the learned trial judge failed properly to direct the jury in accordance with the decision of the High Court, and more specifically that of the majority[8] judgment, in Longman v. The Queen[9]. There is no dispute that an attempt was made to do so, although not in relation to all the matters which the applicant said required the giving of a warning. The complaint is primarily as to the form of the "warning", it being contended that it did not amount to more than a comment and that it was not given with the full authority of the judge's office. It was also said that the generality of those comments failed to make clear the matters about which the jury were either being warned or ought to have been warned. So it was said that it failed to emphasise sufficiently and warn against some nine aspects of potential weakness in the Crown case, namely:
[8]Consisting of Brennan, Dawson and Toohey, JJ.
[9](1989) 168 C.L.R. 79. See the analysis of this case and subsequent authorities below at paras [85] to [91]
(1)the absence of "corroboration";
(2)the considerable delay of the complainants in making complaint;
(3)the considerable delay affecting the applicant's ability to prepare and present his defence;
(4)the lack of detail in the allegations as to time and place;
(5)the danger of the passage of time "hardening fantasy ... into absolute conviction of reality";
(6)the risk of prejudice arising from the nature of the offences and the applicant's relationship with the complainants;
(7)the risk of collaboration and prompting among the complainants;
(8)the fact that all complainants were known to each other;
(9)the awareness of the complainants that compensation was available.
Counsel conceded that the judge did not have to deal with every one of these aspects of the evidence. This may serve to emphasise that the applicant's case is overstated, but, in any event, it is not clear that each was relied upon at the trial for the purpose of persuading the judge to give a Longman warning or, more particularly, to repeat such a warning relating to each aspect in terms which sufficiently reflected the authority of the judge's office.
There seems little doubt that when these various subjects were first dealt with by the learned judge she dealt with them as though they were essentially only a matter for comment, as will be seen, but then, after counsel had strenuously raised what he claimed to be the inadequacy of the direction to that stage, argument was put on both sides as to what further was needed. Surprisingly counsel for the prosecution, although expressing concern at the use of the word “comment”, seemed unwilling to concede that a warning expressed in terms of danger or unsafety or the like was required and seemed anxious to persuade the judge that her comments to that stage were sufficient. Overnight, however, her Honour read some of the authorities including Longman and seemed at that stage to concede to counsel the need to express the warning in terms of danger or the like. In the end she gave a brief warning referring to the "need to be fully aware of the dangers of convicting on the unsupported evidence of a complainant ...".
In the course of argument the parties were not agreed as to the extent of the duty seemingly imposed by Longman and the cases which have followed it. In part that went to the language used and in part to the range of issues which called for such a warning, as may be seen by the list of nine subjects described above. Before examining those differences, it is first desirable to set out something more of the way in which the judge directed the jury on those issues for, as always, it is the totality of the charge on the relevant subject which must be examined.
The first point at which the broad subject matter of warnings of this kind was approached was when the learned trial judge told the jury that in relation to each of the complaints "the only direct evidence you have is the evidence of the complainant himself", so that, as she put it, there was "no external evidence" which supported the complaints made that each of them was abused by the applicant. She continued:
"Now, that is often the case of course in offences of this nature, and there is, as a matter of law, no need for you to have external evidence before you are entitled to convict. But you have to be very careful in looking at the evidence in these circumstances, because in its absence the potential for error does become greater, and that is a matter for you to assess and use your own common sense. I mean, you have got to show some caution because there is a risk that a person may have a motive or hidden reasons for falsely accusing the accused person. There is a risk that the accuser is a very convincing witness and there is a potential for misleading evidence and you must be careful to scrutinize the evidence for its truth and its accuracy in cases like this. ... You have to see that there is this potential for error. So it does require you to undergo a careful exercise of scrutiny.
These are only comments I make to you. They do not bind you, but you would be quite wrong if you ignored the obvious potential for error when you are looking at these matters and looking at the evidence."
As to this passage we should immediately observe that not only did the learned judge think that there was no confirmatory evidence supporting each of the complainants' allegations, (a view which, as we have stated, seemed unduly favourable to the applicant), but also that she thought that that circumstance in itself and without more was such as to require the giving of a warning or direction, at least as to careful scrutiny. It has of course been strenuously contended that that particular part of the warning was too weak, lacked the elements of the judge's authority and was directly qualified by the expression "only comments".
If it had been thought that the absence of confirmatory or corroborative evidence was sufficient to require a warning in itself, that notion would have been misconceived, for clearly by reason of the statutory amendments, in particular s.61 of the Crimes Act 1958 and what was said by the High Court in Longman and in Crofts v. The Queen[10], among many other authorities, it would be wrong to give any form of warning for that reason and which could only be taken to suggest that complainants of this kind, that is complainants in sexual cases whether male or female, were generally unreliable so that it would be "dangerous" to accept their evidence except upon stringent scrutiny. To be fair to her Honour though, it may not be that she intended that this part of the charge form any part of the Longman warning. The discussion on the previous day had suggested that she was well aware of the several cases dealing with warnings, such as Longman and Crofts, and that she had been concerned to identify the relevant factors which might require a warning and also some specific comment about those factors themselves. Moreover, in looking at that part of the charge which follows the above-quoted passage her Honour embarked upon a discussion of those matters which might also be taken into account in determining whether the applicant was guilty, in particular the kind of similar-fact evidence and the various aspects of complaint or lack of it. In general her Honour seemed aware in the course of argument of the limited number of factors or dangers which would require a Longman warning.
[10](1996) 186 C.L.R. 427.
However, in order to see how the learned judge approached the next stage of her warnings, it is necessary to briefly refer to those aspects of the charge which followed, many of which are otherwise the subject of specific grounds. So the learned judge next turned in her charge to what the applicant has described as the "propensity evidence", but which included discussion of the contentions that the evidence of the complainants could also be relied upon as showing a pattern of behaviour such as to make it more likely that the applicant was guilty of one or more of the specific offences. That part of the charge extended to some five pages and it included a discussion not merely of the matters to which we have just referred but a specific and clear direction that guilt on the one count cannot in itself be used as proving guilt on the others, but it also included some directions, or at least comments, about the applicant's allegations that the complainants had colluded in making their allegations about the applicant's activities at that time. On this she correctly directed the jury that they would "have to be satisfied that there was no collusion between them, beyond reasonable doubt" before their evidence could be used. As to this there was also passing reference to the fact that they had made claims for compensation. Again, she correctly said that the accused did not have to prove anything about the complainants' motives, that the events had to be established beyond reasonable doubt and that, if "it is possible that any one of the complainants did fabricate these allegations because of the motive suggested", then it would be their duty to acquit as to those counts. She also emphasised that, merely because they might find that there was no collusion or motive, it did not follow that the applicant was guilty and the jury still had to look specifically at the evidence relating to each count and be satisfied beyond reasonable doubt as to the applicant's guilt.
The learned judge then discussed the question of the similarity of the allegations made by the various complainants. Here she was emphatic that the fact that some allegations "may have similar aspects to them, cannot be used by you to reach a conclusion beyond reasonable doubt on a particular count simply because of that similar aspect". Her Honour then told the jury that the fact that compensation might have been awarded was irrelevant to proof beyond reasonable doubt on the specific counts.
It was at this point that the learned judge returned to what seemed to be the giving of a general warning, as she perceived it, in relation to the complainants’ evidence as a whole. She commenced by observing that, although the jury should evaluate the evidence as they would in any other case, this was a case which alleged "sexual misconduct". She said that the jury should have regard to some specific matters upon which she had already directed them, from which we may assume that she was adverting to the matters just discussed. She said, however, that there were other matters which applied particularly in relation to the assessment of the witnesses. In broad terms, she referred to demeanour, language and possible inconsistencies.
Her Honour then turned to that aspect of the case which might most obviously and directly call for a Longman warning, in so far as it raised an almost identical factor as was discussed in Longman, namely that the trial took place "after the passage of more than 20 years": Longman[11]. Her Honour specifically observed that the complainants in the present case were young boys at the relevant time and that the jury should consider the effect that the passing of time would have on their recollection. She quite properly said that it would be "denying common sense" to suggest otherwise than that that period of delay would have had a part in faulty recollections of things. Likewise she properly referred also to the fact that there was a long delay in prosecuting the offences which arose from the delay in reporting them in about 1996 or 1997 for the first time. That delay, she said, made applicable "a number of careful considerations". She emphasised that it was common human experience that memories can fade over time and that honest people sometimes convince themselves that incidents happen in a particular way. She told them that "one cannot ignore the effect that human imagination or prejudice and emotion or suggestion can have on memories of events after some years". On the contrary, however, she said that "some things stick in a person's mind and they never fade, and they can be accurately recalled, particular events, with clarity … ". This she said enabled a jury to believe what they were saying was true, "after having given that evidence full scrutiny". She correctly stated that, because there were no statements made at the time of the alleged events, the police would have lost the capacity adequately to investigate them, to search for relevant evidence including other witnesses and to question people further so as "to either disprove or establish these allegations". Moreover, again correctly, she said that not only would the police have lost that capacity "but the accused will have lost any chance to establish facts and circumstances which may have helped him to disprove the complainants' allegations". Had they been made shortly after the events, "it would have been possible to explore in some detail the alleged circumstances surrounding" them. To this she added some examples taken from the present trial, and the person named "John" described by other witnesses. There seemed to have been various events which it was clearly conceded had been blurred by several of the witnesses which arose "undoubtedly, members of the jury, from the fact that there is such a long delay". She finally made reference to the problems of adults' talking about childhood recollections and trying to recall incidents in their childhood.
[11]At 91.
Now, as to these matters, despite what might otherwise be seen to be these telling observations, she concluded this aspect of the charge in these terms:
"In that sense the evidence is also affected and you have to look at that as to whether or not you think there has been some significant impact on the evidence and the complainants' recollection of it. As I say, these are just matters that really point out to you, I suppose, a lot of the issues that you are going to scrutinise carefully when you are looking at all of this evidence in relation to each of their accounts, bearing in mind the Crown has the onus of proof throughout the whole of this trial to prove each [of] these allegations beyond a reasonable doubt."
It will easily be seen that this comment on the totality of these matters was not expressed in the terms which the judgments of the High Court in Longman and Crampton[12] appear to require, at least inasmuch as the jury were not then told that it was "dangerous to convict" without scrutinising the evidence with great care (Longman at 91) or using words to like effect: see e.g. R. v. Mazzolini[13]. Moreover, this last quoted paragraph effectively only told the jury that they should scrutinise the relevant evidence carefully. That language, adopted and adapted over many years and forming the part of the relevant passage in Longman[14], would, nevertheless to our way of thinking, merely tell the jury what they are always obliged to do in a criminal trial. Important as it is, it really adds very little distinctive weight to the required direction, except to emphasise at the critical stage of the charge the need for the jury to be satisfied to the required standard[15]. Without some element of warning the observations we have just quoted therefore could not be seen to have been adequate for the purpose. What was argued by the Crown, however, was that it should be seen as part of a comprehensive charge in which the opening words must be given due weight. That, of course, had taken place some time earlier, indeed, on the transcript it was some nine pages earlier and there had been a variety of evidentiary matters discussed in the meantime. It is therefore difficult to be satisfied that the jury would have perceived the two passages as directly related one to the other, such that they would have viewed the whole of it as requiring them to treat the evidence on the basis that it would be dangerous or unsafe to convict without being satisfied to the relevant standard. Moreover, unfortunately, it will be recalled that the words used referred only to "the potential for error" and did not describe any element of danger, unsafety or the like, or so it was contended on behalf of the applicant.
[12][2000] HCA 60; 75 A.L.J.R.133.
[13][1999] 3 V.R. 113 at 140-141.
[14]At 91.
[15]See also below at paras [90]-[91].
That the charge to this stage was seen at least by counsel to be inadequate appears just three pages later where, after an adjournment, counsel for the applicant complained at the absence of any warning using language such as "the danger" and to this the learned judge had responded that she had employed the expression "potential for error" as well as the need "for very careful scrutiny" in order to satisfy the requirements of Longman’s case. There was in fact thereafter, on and off during the course of exceptions taken to the charge, some fairly forceful argument directed to this issue, counsel for the Crown appearing to suggest that what had so far been said was adequate for the purpose, whereas counsel for the applicant had insisted that Longman and subsequent cases which referred to it required a more stringent warning referring to danger or the like. From the transcript of the discussion it would seem, notwithstanding that counsel for the Crown had put submissions as to the lack of any need for redirection, that the learned judge, having reread the authorities, was of the view that something more needed to be said and so in due course, in fact almost at the very end of her charge, she returned to the issue and gave a further direction to the jury.
In consequence, immediately before the members of the jury were sent out to deliberate on their verdicts, the learned judge brought them back, saying that she wanted to reiterate some of the matters upon which she had already given directions. She introduced the re-direction by saying that there were a number of matters in the trial which pointed to "a potential for error" and that she had directed them in relation to those. She then said:
"A matter which has particular significance in a criminal trial is the length of time between the offences and the complaint to police and thus the possibility of investigation in this case, and that is that it is apparent on the evidence that was over some 20 years old before there was a complaint." [sic]
It was perhaps unfortunate that she introduced this observation by reference to the delay between offence and complaint, for, of course, she had already directed them correctly, in accordance with the statute, in that she had advised them that there might well be reasons why a victim of a sexual assault might hesitate or refrain from complaining. However, she proceeded to refer to the more relevant aspects of delay as emphasised by Longman and subsequent High Court decisions[16]. She told the jury, again, that the delay would have "an obvious effect on memories and recollection but it also [had] the effect of loss of potential evidence which may have allowed the complainants' allegations to be fully tested at the time of the allegations." She said that that opportunity had been lost in the present case and that it could not "adequately be tested in the trial because of the passage of time". She reiterated that witnesses who might have given potential evidence could not be "properly investigated by either the police or the accused". Thus the applicant in effect had "lost the ability to explore and test the allegations close to the time that they were alleged to have occurred". She then finished her discussion and redirection by expressing her warning in the following terms:
"So as fact-finders you need to be fully aware of the dangers of convicting on the unsupported evidence of a complainant unless after careful scrutiny of the evidence you are satisfied of its truth and of its accuracy.
So what I am saying to you is that these matters, along with the other specific matters that I directed you to in assessing the evidence, point to a potential for error, not that there is error, the assessment is entirely up to you, but they do require your very careful consideration. If after careful scrutiny you are satisfied of the truth and accuracy of the evidence then you are obliged to convict but if you are not so satisfied then you must acquit in relation to the charges."
[16]See Crofts; Jones v. The Queen (1997) 191 C.L.R. 439; Robinson v. The Queen (1999) 73 A.L.J.R. 1314 and Crampton, although the last case had not been decided at the time of trial.
This was the first reference to the danger of convicting on unsupported evidence but the question is, having regard to the totality of the direction, including the stage at which it was given, was it sufficient to satisfy the requirements of the courts as laid down in Longman, Crofts, Jones and Crampton, and in many decisions of this Court.
In every case the test must be related to the particular circumstances and the way in which the charge might fairly be understood by the jury. Counsel was certainly alive to the defects on the first occasion and indeed, even after the latter redirection, counsel still persisted in an argument that there was a defective warning because it lacked the "full authority of your judicial office". However, in the course of argument before this Court counsel conceded at least that this final direction was "getting a lot closer", but that the primary objection was that the warning was substantially confined to the risks, and the need to obviate them, arising from the delay in complaint resulting in loss of opportunity to collect and test evidence, in order to rebut allegations, as noted in the third of the requirements that counsel put forward and which were listed above[17].
[17]See para [29]
In assessing the totality of the learned judge's charge we would consider that, as to the earlier part of her directions which sought to give some form of warning in relation to the subject matter of what is conventionally called a "Longman direction", that "warning" had very little bite at all. At the time of dealing with delay nothing was said as to danger and at the earlier stage, assuming that the jury could readily associate the nature of the warning given on those two earlier occasions, there was no mention of danger but only "a potential for error", an expression best avoided. More seriously, although her language in the opening part of the directions might be seen to be mandatory, she finished it a few sentences later by saying that they were "only comments". On each occasion there was reference to the need to be careful to scrutinise the evidence carefully but, as we have already observed, this must form only a subsidiary part of a true Longman warning for it merely exhorts the jury to do its duty and to do it carefully. Although there is no magic in the word "danger", the high degree of risk, whether described as "danger" or "unsafety" or what you will, must be expressed with sufficient emphasis on the judge's part to make clear to the jury that what is being said is not merely a comment, but a direction as to how that aspect of the evidence, indeed the whole case, must be approached in the particular circumstances. Although her Honour between the first and last parts of her so-called warning made a number of points very fairly in favour of the applicant and which clearly enough indicated to the jury the need to take care as to their assessments of particular aspects of the evidence, the element of danger or lack of safety in a conviction was not at that stage sufficiently, carefully or emphatically conveyed.
On the other hand, when the learned judge returned to the issue, having reconsidered the various submissions, it would seem that she specifically adverted to dangers of conviction and in terms that she told the jury of the "need" for them to be fully aware of those dangers. She then described what she had been saying in terms of direction and made no further observation which would suggest that what she had said was merely comment. Indeed because it was in effect a redirection, albeit before the jury had retired to consider their verdicts, it had an added emphasis for it was the only matter about which her Honour gave a direction at that stage.
There is only one aspect, therefore, of that direction which might suggest its inadequacy, namely, that it was essentially confined to the risks of an unsafe conviction flowing from the delay between the events and the trial, more especially because of the difficulties which the applicant could well have faced in seeking witnesses and other evidence from such a long time ago. Perhaps at that point those observations were a little truncated but, on the other hand, when they had been dealt with earlier, albeit without reference to "danger", there had been a reasonably detailed and fair discussion of them and advice about them given to the jury, to which she at this late stage made reference back in the course of her final direction to the jury on the point.
Was the confining of the warning to that aspect proper and satisfactory? In the end we think that it was. The other eight items referred to by counsel in his submissions were either subsidiary to this specific issue or were not such as to require a Longman-type direction. For example, the absence of corroboration is not a basis in itself for a warning; indeed it would ordinarily be contrary to the statutory requirements of s.61. Of course, the absence of corroboration or the possible absence of corroboration is normally a condition precedent to the need for a warning of this kind. In other words, if there is other evidence direct or confirmatory, a judge may, in all the circumstances, decide that a warning is not necessary. It should be noted, however, that the existence of such other evidence must always depend upon the likelihood to which the jury will accept it so that, if there is truly a risk that it will not be accepted, then there can be no real basis for refusing to give a direction. The jury would then have to have explained to them the way in which the complainants' evidence might be confirmed and warned that, if it is not confirmed, there is a danger of the relevant kind. However, lack of confirmation is not in itself at present a basis for a Longman warning. Likewise the second item relied upon, namely delay casting doubt on the reliability of each of the complainants is merely an aspect of the third item, which in all the circumstances was adequately dealt with by the learned trial judge. Again item 4 relating to lack of detail is either an aspect or a consequence of delay, or is a matter sufficiently obvious not to require any further or separate direction. The fifth item, alleging a danger that delay might harden fantasy into conviction of reality, is another aspect of delay in general.
The other four items which, it has been contended, should have formed the basis either of a separate or inclusive warning are factors which in our opinion did not require specific additional direction of that kind by the trial judge. That it was appropriate that she comment upon them is consistent with Longman and Crampton but there is no doubt that she did and did so with fairness. It is only the aspect of danger arising from delay[18] which is said to require a mandatory warning. But the four matters referred to were specific matters raised in the course of this particular trial and which were clearly enough matters of dispute or matters which counsel fairly raised as throwing doubt upon the veracity and reliability of the Crown witnesses. As has been pointed out in some detail in both Miletic[19] and Mazzolini, it is not every complaint about the Crown case or its witnesses which calls for a Longman warning. Essentially, as stated in those cases[20], the warning in mandatory terms is ordinarily only required where the dangers or risks in question are of a kind which would not be obvious to the 12 members of the jury bringing their collective wisdom to the specific dispute which was the subject of the trial. The other items were each of a kind where not only is it clear that counsel had relied upon them, indeed placed great emphasis upon them, but they were each matters which the jury could have assessed and accepted or rejected for themselves without the need for a specific further warning covering those matters. The risk of prejudice because of the relationship between the parties was obvious in the sense that the jury could well assess the degree to which the complainants might be likely to tell untruths because of the alleged relationship. Likewise collaboration and prompting among complainants was raised and was clearly capable of assessment by the jury. So too the fact that the complainants, or some of them, were known to each other, which we assume is merely a variation on the allegation of collusion was well able to be assessed by a jury having regard to counsel's arguments. Finally the temptations of compensation and the risks that allegations might be made for that purpose is a common enough allegation which the average member of a jury would be well able to assess.
[18]or any other danger which would not be apparent to the jury : cf. R. v. Miletic [1997] 1 V.R. 593.
[19]At pp. 605-6.
[20]See also now Crampton at p.156, para [126] and p.158, para [140].
In the end therefore we are of opinion that, although the direction and its form could not be described as being expressed in the most clear or the most desirable terms (such that it should not be used in any way as a precedent), it was in the circumstances of this case sufficient for the purpose of giving a warning of danger of the kind which the High Court contemplated in Longman.
Grounds 7 and 8; failure to give proper direction in accordance with Jones v. Dunkel (1959) 101 C.L.R. 298
During the course of the trial, counsel for the applicant (who was also counsel representing the applicant during the appeal) made a number of statements suggesting that the failure by the Crown to call certain witnesses – identified as Aldo Tota, FS (the father of complainants JS and CS), Tony Gallichio and Archbishop Little) – was in breach of the prosecutor’s obligation to call all persons who could give evidence as to relevant facts necessary for the proper unfolding of the Crown case, and contended that, if such persons were not called, the judge should direct the jury that they would be entitled to infer that any evidence which the absent witness could have given would not have assisted the Crown case.
It was contended that Tota was a witness capable of giving evidence relevant to the alleged assaults on PMD at the camp at Rowallan (counts 1, 2 and 3) and to the alleged assault on CDS at the “Drive-In” theatre (count 20). Gallichio was said to have been one of the boys present at the motel on the occasion when the applicant was alleged to have assaulted FW (count 19). FS, so it was contended, could have given evidence relevant to the assault on his younger son, CS, at the Flowerdale house. The evidence was that his wife (DS) had told him of CS’s complaint to her; and that he (FS) had later complained to Archbishop Little. Hence, so the applicant’s counsel contended, the prosecutor should have called Archbishop Little.
The probative value of the evidence which these witnesses could have given seems to us to have been, at its best, marginal. Indeed, it was accepted by the applicant’s counsel at trial that Tota could give no relevant evidence, and that any evidence which Gallichio could give was "peripheral". FS was not the recipient of a proximate complaint from CS, and it is not immediately apparent how his conversation with Archbishop Little could have been led at the trial. Indeed, her Honour ruled that the Crown could not lead evidence from the Archbishop. Nevertheless, her Honour intimated to counsel that, in the absence of evidence from Tota, Gallichio and FS, he would be entitled to submit to the jury that an adverse inference to the case being made by the prosecution could be drawn.
In the face of the intimation given by her Honour, the prosecutor led evidence from the police informant as to why the witnesses would not be called. No statements had been received from any of them, save Tota. Gallichio and FS had been spoken to but refused to make statements or give evidence. None of the witnesses had given evidence at the committal proceedings.
In the course of giving directions to the jury her Honour told them that defence counsel had asserted that the explanations given by the Crown witnesses for the failure to call Gallichio, Tota and FS were incapable of being accepted and that, if the jury came to that view, they could not speculate about the evidence which might have been given by the witnesses but could use the failure to call the witnesses to infer that "the evidence ..., if called, would not have assisted the Crown's case" on the issue in respect of which the witnesses could have given evidence. Her Honour continued:
"You can also look at any inferences of fact which the defence urges you to draw from the evidence which has been called, and you may more readily and confidently draw the inference which the defence asks you to draw because the Crown has not called a witness whom you believe may have been able to contradict that person ..."
Her Honour referred to the evidence given by PMD that Tota had been outside the room at Rowallan on the morning after the events described by PMD and had been heard to say "We know what you and Father have been doing". She also directed attention to the evidence of CDS that Tota had been in the car when he (CDS) had been assaulted at the "Drive-in theatre". Her Honour also directed the jury's attention to the evidence of CS and JS suggesting that their father FS had been at the house in Flowerdale when the applicant was said to have slept in his car with CS; and to the evidence of FW that Gallichio was one of the boys who went to the motel with the applicant and FW. Her Honour told the jury that, if they did not accept as reasonable the explanation as to why these witnesses were not called, they would be entitled to infer from the fact that they were not called that their evidence would not have assisted the Crown case in respect of the issues upon which those complainants had given evidence. Her Honour reminded the jury that, at the end of the day, their verdicts could only be returned on the evidence which was given and that they could not speculate about evidence which might have been called, but was not called. These directions do not appear to have been the subject of any specific exception taken by the applicant's trial counsel but, in the course of taking exception to the terms of her Honour's "Longman warning", counsel submitted that "it was appropriate in this case for Your Honour to make direct comment ... with the authority of your ... office as to the consequences of the failure by the prosecution ... to call particular relevant witnesses .... You should say that there has been no sensible explanation by the prosecution in respect of calling particular witnesses ...". It appears from the transcript that this exception did not go to the terms of the directions which her Honour had given, but rather was directed to the prosecutor's obligation to call all relevant witnesses at the trial; a matter which is not the subject of any ground of appeal.
On this application, counsel has submitted in support of grounds 7 and 8 that the trial judge was in error in permitting the informant to give hearsay evidence as to the reasons why the aforesaid evidence would not be called; and that her Honour’s directions in respect of the issue were inadequate to explain to the jury the use which could be made of the failure by the Crown to lead such evidence.
There is, we think, no substance in either of these grounds and, even if we thought that there was, we agree with the Crown’s submission that no substantial miscarriage of justice accrued to the applicant as a consequence of the manner in which the matter was dealt with at trial.
Once the trial judge had indicated that she proposed to give a “Jones v. Dunkel direction”, it was, we think, open to the Crown to lead evidence through the informant, explaining why evidence from the nominated witnesses would not be called. It is the unexplained failure by a party to call a witness who would otherwise be expected to give evidence which entitled the adverse inference, of the type referred to in Jones v. Dunkel, to be drawn. Whether the inference should be drawn and, if so, the weight to be given to it are questions for the tribunal of fact. One of the factors which the tribunal would necessarily consider in determining whether the inference can and should be drawn, or in determining the weight which should be given to it, is the explanation proffered by the party for not leading the evidence. The explanation given by, or on behalf of, a party is a matter of fact and not hearsay. It is a question for the jury whether they accept it or discount it. In our view, her Honour’s directions to them as to the manner in which they should use the failure to call the suggested witnesses and the explanations given for that failure were appropriate and adequate in the circumstances. Having regard to the entirely peripheral and cumulative nature of the evidence which the suggested witnesses could have given, we think that the directions were unduly favourable to the applicant. Indeed, the grounds raise the question of the circumstances in which such directions are appropriate in a criminal trial. . The so-called “Jones v. Dunkel direction” is an evidentiary principle which has its primary application in the administration of civil justice where the issues to be litigated are defined by the parties and the evidence to be called in proof of those issues is within the unfettered discretion of the parties. The transportation of the principle into the administration of criminal justice has to be undertaken with caution because different considerations apply[21]. The application of the principle against the interests of the accused is fraught with the danger of trespassing upon his entrenched right to silence; and thus of inverting the onus of proof. To apply it with impunity against the Crown may unfairly impinge upon the prosecutor’s solitary, but undoubted, discretion (explained in Apostilides v. R.[22]) not to call a witness whom he or she believes to be unreliable or not required for the proper and fair presentation of the Crown case. The exercise of this discretion is not lightly to be questioned by the trial judge but it must, of course, be exercised in good faith against the background of the
8.The learned trial judge failed to properly direct the jury in accordance with Jones v. Dunkel (1959) 101 C.L.R. 298.
...
11.The learned trial judge erred in failing to discharge the jury as a result of adverse media publicity during the trial."
I agree that those grounds fail, for the reasons the other members of the Court have given.[111]
Second Trial
[111]In relation to ground 11, see [97] above.
Grounds 1 to 6 in relation to this trial are the same as grounds 1 to 6 in relation to the first trial. Grounds 7, 8 and 9 were also the same but they were abandoned.[112] Grounds 10 and 11 are the same as grounds 10 and 12 in relation to the first trial. It was not suggested that there was any material difference between the facts pertaining to ground 10 in relation to the first trial and the facts pertaining to that ground in relation to the second. Accordingly that ground fails for the reasons previously given. No argument was directed to ground 11. As argued in relation to the first trial, it applied only to the evidence of Stephen Eyles, who was not a witness at the second trial. The grounds that need to be considered are therefore grounds 1 to 6, 12 and 13.
[112]It will be recalled that ground 9 was not separately argued in relation to the first trial. See [123].
Grounds 1 and 2 were argued in substantially the same way as they were argued in relation to the first trial. Again it was conceded that ground 2 could not succeed if ground 1 failed. The primary question is whether the evidence of the five complainants at the second trial was mutually admissible. Miss Sexton referred to and adopted the submissions she had made in relation to the first trial and Mr Traczyk, again by reference to the evidence relating to each complainant, endeavoured to show that there was too much dissimilarity for the evidence properly to be received.
There were ten counts on the presentment. Counts 1 and 2 related to the complainant RDV. Each charged an act of gross indecency committed when he was under the care, supervision or authority of the applicant. Both counts involved the applicant's masturbating himself in the complainant's presence. The applicant was acquitted on count 2.
Counts 3 and 4 related to the complainant SDV. The first charged an indecent assault, consisting of the applicant's masturbating the complainant, and the second charged that he raped the complainant by introducing his penis into the complainant's anus.
Counts 5 and 6 related to the complainant CR. The first was a count of indecent assault, consisting of the applicant's masturbating the complainant, and the second charged that he raped the complainant by introducing his penis into the complainant's mouth.
Count 7 related to the complainant MM. It was a count of indecent assault consisting of the applicant's placing the girl's hand on his groin. In her case the context is more important than in the case of the male complainants. She said that the applicant summoned her to his room and, when she was sitting on the bed, told her that there were girls in the group who wanted to sleep with him but he had to say no. The complainant said that she was upset and the next thing she knew she was lying on the bed. The applicant kissed her, with his tongue in her mouth, and then took her hand and held it on his groin. The witness said that he told her that there was no erection so there was nothing sexual. It should be added that, earlier in her evidence, she had said that, when the applicant drove her and a friend to the camp, he told her not to sit too close to him because he was falling in love with her and that one day, when priests were allowed to marry, he would marry her.
Counts 8 to 10 related to the complainant JC. Count 8 charged an indecent assault, consisting of the applicant's masturbating the complainant, and count 10 an indecent assault taking the form of simulated intercourse. Count 9 charged rape by the applicant's introducing his penis into the complainant's anus.
It was a notable feature of all these offences that they were alleged to have taken place in the applicant's bedroom at Karaglen. All the children were aged 12 or 13. MM was nearly 14. Subject to a qualification in the case of MM, I consider that the evidence was admissible for substantially the same reasons as the propensity evidence at the first trial. I do not overlook the fact that innocent infection was an issue at the second trial.[113] That topic is discussed below.[114]
[113]Compare [114] above.
[114]See especially [159].
MM's evidence stands in a different position not only because of her sex but also because the defence laboured under the particular disadvantage that she was PMD's sister, a fact that could hardly be deployed before the jury in support of the suggestion made to her in cross-examination that an innocuous incident in the form of a purely platonic kiss had grown in her mind to the indecent assault of which she now complained. She was also cross-examined about media publicity, a matter relevant to ground 3. Some of the factors that applied to the male complainants applied to MM too, including the place at which, and circumstances in which, the indecent assault took place; but, as Ormiston, J.A. pointed out in the course of the argument, her evidence was the most likely to be misused as evidence of propensity. I defer further consideration of these matters until I come to the question of unconscious influence and innocent infection.
Turning to ground 3, Mr Traczyk advanced similar criticisms of the direction given to the jury in relation to the evidence of the other complainants as he had advanced in connection with the first trial. I would reject them for similar reasons.[115]
[115]As we shall see, the argument corresponding to that in [122] above was that RDV, SDV and CR constituted a single source. It stands or falls with the question of unconscious influence and innocent infection discussed below.
Paragraph (iii) is founded on the same misconception as before. Excluding a reasonable possibility of collusion is the same thing as being satisfied beyond reasonable doubt that there was no collusion. Her Honour gave the following direction concerning the standard of proof:
"Now, of course you would have to be satisfied beyond reasonable doubt that there was no collusion between any one of these five complainants before you could use the reasoning that the Crown submit is part of your assessment that I have just gone through with you. That has no force at all unless you are satisfied that these complainants did not get together and concoct these allegations or have any contact which led to them fabricating or making allegations together. If you find there was no collusion or concoction between the five complainants then you are entitled to use the reasoning as I have simply directed you upon in relation to each case of each complainant."
That direction discloses no error so far as collusion is concerned.
It will be convenient to begin consideration of paragraph (ii), which I have concluded should be upheld, by setting out in full the passages from R. v. Best to which I have earlier referred only in a footnote.[116]The passage at 611 reads:
"In addition, quite apart from any such comment, there is a direction that the judge should give at a trial where collusion is raised as an issue. The jury should be told, with the full authority of the judge's office, that they must be satisfied that there was no collusion before they use disputed similar fact evidence as part of their reasoning. (The same applies to any other factor, such as unconscious influence or contamination by media publicity, that would affect the argument which gives such evidence its probative force.) Cases on the standard of proof of circumstantial evidence are referred to later in this judgment, but it will usually be wise to tell the jury that they must be so satisfied beyond reasonable doubt. That accords with the practice in England (see R. v. H.[117] at 602B) and is obviously conducive to justice." (Emphasis added.)
There is a summary in point form at 616. Point 4 reads:
"4.Where collusion, unconscious influence or the like is raised as an issue, the judge should direct the jury that they must be satisfied beyond reasonable doubt that no such factor was operating before they use disputed similar fact evidence as part of their reasoning. That is in addition to any comment the judge may choose to make, subject to s.61(3) in cases to which it applies." (Emphasis added.)
[116]See fn. 91 and the accompanying text.
[117][1995] 2 A.C. 596.
It will also be as well to set out the paragraphs of the charge immediately preceding the direction on the standard of proof. Her Honour said:
"Now the defence here, as you have heard, suggest that you should not undertake utilising this aspect of assessment of the evidence because you could not be satisfied that there was not collusion, that is complainants getting together and making up stories, at least between three of these complainants, that is the two DV brothers and CR.
The defence rely on the evidence that these three persons did know each other at the relevant time and that they have had some contact kept up at least afterwards through LDV's contact with [CR's sister], and you will recall the evidence in relation to that aspect.
The defence say that you should reject the evidence of RDV and SDV and LDV, that they did not discuss their allegations, and you should conclude that in fact they not only discussed them but they concocted them with a view to compensation.
The defence also say that CR's denial of discussing the allegations with any of the DVs should not be accepted and rely upon the evidence of [CR's sister], and her contact with LDV in some way as supporting the contention that there was ongoing contact which would have allowed knowledge of the DVs's allegations to have been conveyed to CR. There is clearly no evidence of that and CR denies that aspect, but the defence say that you should simply not accept that denial and that if you do not accept it then you cannot say, well, here we have three independent people making similar allegations because it is tainted." (Emphasis added.)
I have substituted initials for the names of complainants and LDV.
Mr Traczyk took a detailed exception at the second trial to the effect that "collusion" included innocent infection. The reason will become apparent in due course: the judge had directed on collusion but had said nothing about the wider basis on which counsel put his argument to the jury at the end of his address.[118] He referred her Honour to the passage from Lord Wilberforce's speech in R. v. Boardman[119] that was expressly approved by Brennan and Dawson, JJ. in Hoch v. R.[120] His Lordship said:
"The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s).
I use the words 'a cause common to the witnesses' to include not only (as in Rex v. Sims [1946] K.B. 531) the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility: something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed."
The reference to "striking similarity" must now be read in the light of cases like Director of Public Prosecutions v. P. It is the explanation of "a cause common to the witnesses" in the second paragraph that is presently relevant.
[118]See [156] below.
[119][1975] A.C. 421 at 444.
[120](1988) 165 C.L.R. 292 at 300.
The judge rejected the submission that "collusion" had a special meaning in the law which included unconscious influence or innocent infection from media publicity. Her Honour refused to re-direct, saying that she had already directed the jury that they had to be satisfied beyond reasonable doubt that the complainants "did not get together, concoct or be influenced by knowledge of the other complainants' allegations". Whether or not the words I have italicized would have embraced unconscious influence or innocent infection, those concepts were certainly not embraced by the actual words of the charge, which are set out in [150] and [152] above.
"Collusion" does not have a special meaning which includes unconscious influence or innocent infection. The point is rather that, just as collusion deprives disputed similar fact evidence of its probative value, the same may be true of unconscious influence or innocent infection from media publicity. The unconscious influence or innocent infection may supply the explanation for the similarity between the respective complainants' accounts without there being any dishonest fabrication. Where that is an issue at a trial, the judge should direct the jury that they have to be satisfied beyond reasonable doubt that such unconscious influence or innocent infection is not the explanation for the similarities on which the Crown relies. Her Honour refused to give such a direction. The question is whether unconscious influence or innocent infection was an issue at the second trial.
Defence counsel concluded his address to the jury by saying that there was "one final point" that he should make. Although it is a long passage, it will be best if I set out in full the way in which that point was made. I shall not emend the transcript, but I shall substitute initials for the complainants and LDV. Counsel said:
"The prosecution said to you in closing the case, they said, look, how unlikely or how improbable is it that five complainants, not all of whom are known to each other, would all make allegations of a similar nature against the same man?
That is an argument that is open to the prosecution but you need to look at that argument very carefully because in essence what that argument reflects is this sort of logic. I give you a clear example. If you had, for instance, 20 people all unknown to each other, none of them have any connection with each other, and without knowing about the existence of the other, each of those 20 people make allegations of a similar nature against the same individual, right, then logic does compel one to the conclusion, well, it can't be by coincidence that 20 people all unknown, unrelated to each other, make similar allegations against the same man. That's the logic of it, and as I say, you don't leave logic behind when you come to deliberate on your verdicts, and that is the type of logic that the Crown say you should apply in these five trials.
The problem with that is this: that the example I give of 20 people all unrelated all making the same complaint about the same individual is the logic is fairly compelling because you say, well, it can't be just coincidence unless it's true, but there is obviously a point in time in that sort of logic where you say to yourself, well, I don't know. Could it just be coincidence? It could be any one of a number of reasons, and in this case, you see, that logic, I suggest to you, simply is not open to you.
Firstly, it is clear that at least three of the complainants are well known to each other. SDV, RDV and CR. Those three complainants are well known to each other. They all refer, by name, in each other's statements to the other. Although both RDV and SDV gave evidence that they have never discussed their complaints with each other, certainly RDV knew about SDV's complaint before he, RDV, made his complaint. So that that logic that I say to you of people totally unrelated and unknown to each other, if all you had were the trials of RDV and SDV, would not be open to you because RDV already knows about SDV's complaint and the logic of saying, well, why would he complain totally independently and separately against the same person, is simply not open to you.
I hope you understand what I'm saying. This is a very important point. Even though they may not have discussed their complaints with each other – well, I suggest to you that you shouldn't accept that in any event. I mean, certainly one would think there would be discussions between, if not directly between RDV and SDV, certainly between RDV and LDV and LDV and SDV about, you know, what each of them are all saying and LDV, in fact, co-ordinating the claims for compensation, she arranging for solicitors and all this sort of thing, that certainly that logic doesn't apply in that case because they both know about it. Well, certainly RDV knows about SDV's complaint so this is not that clear example of 20 people unrelated and not knowing that each, anyone else has made a complaint – all of a sudden making a similar complaint against the same person.
The logic also that that proposition breaks down with, CR because CR knows the DVs and you will recall this critical piece of evidence, I suggest to you. LDV, I asked her, I said did you phone the police, did you phone Ralph Tyler and tell him to go and see CR because he is a victim. And you may have forgotten that but I'd asked her specifically that question and she denied that. She said I never did that. I never phoned Ralph Tyler and told him to go and see CR because he was a victim and yet Mr Tyler said that she did. He said, yes, LDV did ring me and did tell me, it's in my notes. I've got a note of it here. She rang me and she said CR is a victim and the word 'is' was in capitals and underlined in his notes. So there's clearly communication going on although not directly. It doesn't need to be direct communication but there is certainly an awareness amongst each of these three complainants, both DVs and CR of the existence of each other's complaints and when there is that sort of awareness, the logic as I say, that 20 people totally unrelated, unaware of complaints being made, just breaks down. Logic does not apply.
You will also recall that MM was not totally uninfluenced by any factors in terms of making complaint. I think she conceded that she was aware of some media publicity concerning Glennon, certainly before she made her statement to the police, maybe not before she made her complaint to her mother but I put her in a totally separate category in that the nature of the complaint is different and I've gone through, you know, the logic of how you should approach her complaint in any event.
Now, that really leaves, I suggest to you, the proposition that there may be two sorts of witnesses who may have independently complained; that is on the one hand the group of three, RDV, SDV and CR and on the other hand JC. JC has made his complaint in 1991 and he has also told you that prior to making that complaint in 1991 he was aware of media publicity concerning Glennon and I suggest to you that once you're aware of publicity, you may be motivated by that publicity to make complaint and therefore the logic of the example that I give you of 20 people unrelated and for no reason, no discernible reason, all independently making complaint against the same individual simply breaks down and cannot apply in this case and her Honour will give you clear directions of law as to how, if that logic is open, how it should be applied and whether or not you can apply it in this case." (Emphasis added.)
That argument squarely raised for the jury's consideration, as the tribunal of fact, whether there might not have been another explanation – not, as at the first trial, limited to collusion – for the improbability of complaints from five apparently independent sources. Counsel told the jury that the judge would direct them as to the argument he had advanced. It was the last point made in his address. As we have seen, her Honour was asked to direct on unconscious influence[121] and innocent infection and refused to do so. It should also be recalled that it was at best dangerous to receive the evidence of MM at the second trial, partly because of its anomalous character and partly because the defence could not reveal to the jury that she was PMD's sister.[122] MM was asked in cross-examination whether she had been aware of media publicity about the applicant in the early 1990s. She said that she had been. It was suggested that that had influenced her perceptions of him.
[121]Even if counsel did not go so far as unconscious influence, he certainly put his case to the jury and his exception on a wider basis than that explained and accepted by the judge, quite apart from the question of innocent infection from media publicity, which is a separate issue.
[122]I refrain from formally deciding whether her evidence was inadmissible, as failing to satisfy the test in s.398A(2), but I think that it probably was.
It is for these reasons that I would uphold ground 3(ii) in relation to the second trial. The ground is not correctly expressed, but the point to which it seeks to direct attention was raised below and exception taken. Her Honour's refusal to re-direct cannot be met by the proviso to s.568(1) of the Crimes Act. The argument counsel advanced at the end of his address struck at a major plank in the Crown's case. It was for the jury, and is not for this Court, to decide whether some of the complainants may have been influenced by knowledge of each other's allegations or by media publicity. Similar fact evidence is notoriously prejudicial. Now that it is admitted more readily than it used to be, it is essential that the jury be given directions that reflect the strengths, but also the weaknesses, of such evidence in the case at hand. A new trial is always an evil, particularly in sexual cases, but it cannot be avoided.
There is a sense in which ground 3(ii) is related to ground 10, for the judge was conscious of the difficulty of giving a direction concerning media publicity without encouraging the jury to speculate about its content. The same problem is likely to arise at the new trial, and any direction will have to reflect the course of evidence and argument at that trial, but the judge might say something to the following effect:
"You have heard that there was media publicity about allegations levelled at the accused. That is not evidence that those allegations were true. The media publicity is completely irrelevant except for the possibility, as the defence contends, that it influenced the complainants and explains what the Crown says are the similarities between their accounts. You must be satisfied beyond reasonable doubt that media publicity was not the explanation for those similarities and that the complainants' allegations are truly independent of each other before you use the kind of reasoning that I have just described."
The last words assume that that direction would come immediately after the explanation of probability reasoning.[123]
[123]See [119] above.
A reading of the charges at these two trials prompts me to mention one other point before parting with this ground. If the jury are not satisfied beyond reasonable doubt that complainants did not collude, in the sense of fabricating their evidence, not only will that deprive the similar fact evidence in the case of its probative force but, more importantly, it will mean that the jury entertain a reasonable doubt about the truth of the complainants' allegations. Accordingly, a direction of the kind referred to in R. v. Best at 611 and 616 point 4 has independent significance only in a case falling short of outright fabrication. Where the issue is unconscious influence or innocent infection, the jury must be satisfied beyond reasonable doubt that that is not the explanation of the similarities on which the Crown relies before they use probability reasoning, but they may still convict the accused because they are satisfied of his guilt by the evidence directly relating to each count. There is a middle case, which Lord Wilberforce may have had in mind in R. v. Boardman[124] when he referred to "collaboration", where a jury might think that complainants put their heads together to make their accounts consistent, thereby depriving the similar fact argument of its force, but that nevertheless the allegations of one or more of the complainants are true in substance. In those circumstances, too, it would still be open to them to convict.[125]
[124]At 444.
[125]Whether the conviction would stand would depend on the quality of the evidence as a whole. I have in mind a case where several victims of sexual assaults, in an endeavour to ensure that the perpetrator is convicted, get together and harmonize their accounts. In an appropriate case a jury might think that they had collaborated but nevertheless that they had been assaulted and that the substance of the individual accounts of one or more of them was true.
That is the only ground I would uphold. I express no opinion on ground 4 in relation to the second trial. I would reject the remaining grounds for reasons that can be expressed quite briefly.
There was no evidence of proximate complaint at the second trial, but it was again submitted, under cover of grounds 5 and 6, that the part of the charge dealing with delay in complaining was unbalanced. I do not accept that submission. The considerations referred to in [135] apply again. Indeed the third consideration applies with even greater force because, at the second trial, her Honour concluded the relevant part of the charge by directing the jury "as a matter of law" that they could use lack of complaint when they were assessing the consistency of the complainants' conduct with their allegations. Moreover, on this occasion, her Honour dealt with each of the five complainants separately.
At the first trial in the course of a re-direction, the learned judge told the jury that many of the considerations about failure to complain that apply to children would not have applied to the complainants when they reached their late 20s or early 30s. No similar direction was given at the second trial but, in my opinion, that did not work any injustice to the applicant. On the contrary the re-direction at the first trial was unnecessary. As the learned President pointed out in the course of the argument, this branch of the law of evidence is concerned with the presence or absence of proximate complaint. It is predicated on an assumption that the victim of a sexual assault is likely to complain of it at the first reasonable opportunity. Complaints made at a later stage are not admissible and further delay in complaining when the alleged victim reaches adulthood ordinarily requires no specific direction. Such delay may or may not be significant depending on the facts of the case, but it is unrelated to the assumption that the victim of a sexual assault is likely to complain of it proximately to the time of the offence. Accordingly grounds 5 and 6 both fail to the extent they are applicable to the second trial.
The remaining grounds are grounds 12 and 13, which had no counterparts in relation to the first trial. They read:
"12.The learned trial judge erred in admitting evidence of 'change of behaviour'.
13.The learned trial judge erred in refusing to allow cross-examination as to delay in making complaint."
The evidence referred to in ground 12 concerned the DV brothers and JC. LDV testified that SDV became aggressive after he stopped karate, that he started showering three times a day and that his behaviour in general changed. RDV, she said, locked himself in his room and became withdrawn and his school-work deteriorated. Other witnesses gave evidence that JC had become aggressive and violent at or about the time of the alleged offences and had developed an aversion from his uncle to such an extent that he did not want to be in his company. That evidence was admitted, in the words her Honour used in the course of her charge, solely "to rebut the suggestion raised by the defence that nothing occurred at the relevant times of these allegations but that it was fabricated by the complainants later".
I doubt, with respect, that that evidence was rightly admitted. There was no specific suggestion, analogous with a suggestion of recent invention. The suggestion sought to be rebutted was simply that implicit in a denial of the complainants' allegations. The evidence appears to have been led to buttress the relevant complainants' credit[126]. The difficulty for the applicant is that, even more plainly than in the case of ground 12 at the first trial, the proviso would have been applicable. The evidence was of little moment. In some respects it was vague and speculative and it was played down by the judge in the course of her charge, the relevant part of which concluded as follows:
"[This evidence] cannot help you reach conclusions in relation to whether or not the allegations are in fact true. It does not go to the fact of the truth. All you could do is conclude that it was consistent with the events occurring. It may be that you simply cannot use it to reach this conclusion at all. It may be that you find that that evidence is inconclusive to the extent where it does not assist you in reaching a conclusion that it is consistent or inconsistent, that it, in effect, does not assist you, and if that is so, you simply put it to one side, but what you cannot do is utilise it in forming any conclusions as to the truth of the allegations themselves."
[126]There was no question of re-establishing their credit as in R. v. J [No. 1] (1994) 75 A.Crim.R. 522.
Ground 13 relates only to JC. He had been asked questions in cross-examination to the effect that he had made his allegations against the applicant as a result of media publicity. Although the date of the publicity had not been mentioned and he had not been asked the date of his statement to the police, he had been asked questions by reference to the period before and the period after that statement. The prosecutor was accordingly permitted to elicit, in re-examination, the date on which JC had made his statement to the police. Defence counsel then sought leave to engage in further cross-examination. We were told that the intended questions related to whether or not JC had complained to his uncle, Walter Mifsud, when he was about 13 years old.
Mr Mifsud had not given evidence at that stage, but defence counsel knew that he was likely to testify to just such a complaint. Counsel told us that it was only when the date of JC's statement to the police was mentioned before the jury that he thought it expedient to engage in what might be called a pre-emptive strike. To have asked JC whether he had complained to his uncle when he was 13, or questions directed to that issue, would have been hazardous at that stage but, more importantly, it was the cross-examination of JC, not the question asked in re-examination, which made it appropriate for the Crown to lead evidence from Mr Mifsud that his nephew had complained to him at a date much earlier than any possible publicity. In other words, the evidence to which the pre-emptive strike would have been directed was opened up by the cross-examination and not the re-examination. In my opinion it was well within her Honour's discretion to refuse to allow further cross-examination.
For these reasons, although I would refuse leave to appeal against the convictions sustained by the applicant at the first trial, I would grant leave in respect of the second trial, allow the appeal and direct that the applicant be re-tried on those counts. Count 7, if it is proceeded with, should be tried separately.
Sentence
There remains for consideration the application for leave to appeal against sentence, in relation to the counts on which the applicant was convicted at the first trial, but I am not persuaded that this Court should intervene. The sole ground of appeal is that the learned judge failed adequately to reflect the principle of totality. In my opinion a sentence of eight-and-a-half years' imprisonment was well within the range, bearing in mind the seriousness of the offences, the number of victims, the period of time over which the offences were committed and the applicant's character as a person in a position of trust, which conferred authority, militated against suspicion and made complaint difficult, who has shown no remorse whatever.[127]
[127]I do not overlook the sentence of nine years' imprisonment imposed in 1991, of which the applicant served six years because of the system of remissions then in force. (To take the latter fact into account, retrospectantly, does not offend s.5(2AA)(a) of the Sentencing Act 1991.) At the hearing of the application reference was made to a 1978 sentence too. Her Honour was not asked to take it into account and, in my opinion, no error was made in that regard.
I would fix a non-parole period of six-and-a-half years.[128]
[128]No separate argument was directed to the non-parole period of 12½ years fixed by the judge but, if the convictions sustained by the applicant at the second trial are quashed, a new non-parole period must be fixed in relation to the sentences imposed at the first trial.
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