R v Inston
[2009] SASC 89
•6 April 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v INSTON
[2009] SASC 89
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Anderson)
6 April 2009
EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS
CRIMINAL LAW - EVIDENCE - CORROBORATION
Appeal against conviction - defendant and appellant charged with two counts of unlawful sexual intercourse with person under 12 years of age and three counts of indecent assault all with persons under the age of 12 years - jury returned majority guilty verdict in District Court trial on first count of unlawful sexual intercourse and majority not guilty verdict on second count - majority not guilty verdicts returned on counts of indecent assault - at trial relationship evidence led to explain how conduct continued and complainants submitted to conduct - whether trial Judge erred in rejecting application for severance of complaints - relationship evidence of complainants with respect to their complaints admissible - whether evidence of complainants cross-admissible - whether delay resulted in unfair trial - whether warning required - whether evidence of complainants credible and reliable - whether verdicts of jury should be set aside by reason of error of law or miscarriage of justice.
Held: purpose of evidence said to be cross-admissible was to establish a pattern of behaviour by the defendant towards his young granddaughters and a course of behaviour involving sexual touching and abuse - evidence admissible, probative and relevant to complainants’ evidence - direct evidence of complainants credible and reliable - value of evidence lies in improbability of complainants giving accounts of happenings with marked degree of similarity - trial Judge summarised disadvantages of defendant to jury - trial Judge’s observations incorporated references to the length of delay of complaints and further directed jury to give evidence careful scrutiny and that jury ought to be satisfied beyond reasonable doubt that accused guilty on each count - no prescription as to precise words to be used in Longman or delay warnings - trial Judge’s observations and warnings adequate - no miscarriage of justice to warrant intervention of appellate court.
Criminal Law Consolidation Act 1935 (SA) s 278 and s 353; Evidence Act 1929 (SA) s 34CB and s 34I(6a); Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 16, referred to.
Hoch v The Queen (1988) 165 CLR 292; Sutton v The Queen (1984) 152 CLR 528; Phillips v The Queen (2006) 225 CLR 303; R v Handy [2002] 2 SCR 908; Martin v Osborne (1936) 55 CLR 367; HML v The Queen (2008) 245 ALR 204; DPP v Boardman [1975] AC 421; Longman v The Queen (1989) 168 CLR 79; Doggett v The Queen (2001) 208 CLR 343; R v BFB (2003) 87 SASR 278; Crampton v The Queen (2000) 206 CLR 161; R v GPP (2001) 129 A Crim R 1; Gaulard v The Queen [2000] WASCA 218; Crisafio v R (2003) 27 WAR 169; R v Johnston (1998) 45 NSWLR 362; Maric v The Queen (1978) 52 ALJR 631; Perry v The Queen (1982) 150 CLR 580; Pfennig v The Queen (1995) 182 CLR 461; R v Turney (1990) 52 SASR 438; R v Bridger [2003] SASC 180; Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427; Robinson v The Queen (1999) 197 CLR 162; Tully v The Queen (2006) 230 CLR 234; R v Kostaras (No 2) (2003) 86 SASR 541; R v RWB (2003) 87 SASR 256; R v Seigneur [2009] SASC 59; Bromley v The Queen (1986) 161 CLR 315; R v Corrigan (1998) 74 SASR 454; R v Green (2001) 78 SASR 463; R v Humble [2009] SASC 51; Azzopardi v The Queen (2001) 205 CLR 50; Dyers v The Queen (2002) 210 CLR 285; R v Collie (2005) 91 SASR 339; R v Schmahl [1965] VR 745; R v Wilkes & Briant [1965] VR 475; R v Crnjanin [1965] QdR 324; R v Von Einem (1985) 38 SASR 207; Domican v The Queen (1992) 173 CLR 555; R v Whittingham (1988) 49 SASR 67; R v B, P [2006] SASC 229; R v Schlaefer (1984) 37 SASR 207; R v Tedesco (2003) 85 SASR 66; Christophers v R (2000) 23 WAR 106; JJB v R [2006] NSWCCA 126; Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen [2008] HCA 52, (2008) 83 ALJR 43, considered.
R v INSTON
[2009] SASC 89Court of Criminal Appeal: Gray, Vanstone and Anderson JJ
GRAY J.
This is an appeal against conviction.
The defendant and appellant, Gordon William Inston, was charged with two counts of unlawful sexual intercourse and three counts of indecent assault all with persons under the age of 12 years.
The counts of unlawful sexual intercourse were with respect to the one complainant, A, and the particulars alleged were as follows:
Gordon William Inston between the 25th day of May 1986 and the 26th day of May 1989 at Port Elliot, had sexual intercourse with [A], a person under the age of 12 years, by inserting his fingers into her vagina.
Gordon William Inston between the 25th day of May 1987 and the 26th day of May 1989 at Port Elliot, had unlawful sexual intercourse with [A], a person under the age of 12 years, by inserting his finger into her anus.
One of the counts for indecent assault also related to the complainant, A, and the particulars of this offence were as follows:
Gordon William Inston between the 25th day of May 1989 and the 26th day of May 1990 at Rapid Bay, indecently assaulted [A], a person under the age of 12 years.
The remaining two counts of indecent assault concerned a different complainant, B, and those two counts were in the following terms:
Gordon William Inston between the 15th day of September 1989 and the 16th day of September 1990 at Cape Jervis, indecently assaulted [B], a person under the age of 12 years.
Gordon William Inston between the 15th day of September 1993 and the 16th day of September 1994 at Port Elliot, indecently assaulted [B], a person under the age of 12 years.
Following a trial in the District Court the jury returned a majority verdict of guilty in respect of the first count of unlawful sexual intercourse and a majority verdict of not guilty in respect of the second count of unlawful sexual intercourse. Majority guilty verdicts were returned on the three counts of indecent assault.
The Trial
The prosecution case was that the two complainants A and B, were at the time of the alleged offending aged between 7 and 11 years. The complainants were sisters. At trial they were aged 26 years and 30 years respectively. There were four children in the family. A was the eldest and B was the third child. The other children were boys. The defendant was their grandfather, being their mother’s father.
Both complainants gave evidence that the defendant would touch them in what they now understood as adults to have been in an inappropriate manner. A and B gave evidence that they were tickled and that in the course of the tickling the defendant would feel their breasts. This was a regular occurrence. On occasions he would do this under their clothing. At times this conduct would occur when others were present. At times the defendant would tell rude jokes in the presence of A and B and exhibit sexual behaviour in front of them.
On occasions the complainants would sit on the defendant’s lap and he would tickle them in that position. A spoke of the defendant touching and tickling her on the back and then progress down through her underwear and the touching of her genitals.
When A was aged about six years the family moved to Port Elliot. The defendant and the complainants’ grandmother lived next door. A and her siblings would frequently go to their grandparents’ home after school. Inappropriate touching took place.
There was no objection at trial to the admissibility of evidence of uncharged acts from a complainant with reference to the charge involving that particular complainant. It was the prosecution case that the defendant engaged in a similar pattern of behaviour toward both complainants. The evidence of uncharged acts was led to explain how the conduct continued and how it was that the complainants submitted to the conduct.
With respect to the first count of unlawful sexual intercourse, A gave evidence that at the time she was aged between 8 and 10 years and on a particular occasion, on returning from school, she went to her grandparents’ home next door. The defendant was at home alone. He put her on his lap with her back towards him. Her evidence was that while holding her there, he put his hands into her pants and placed his finger into her vagina. As soon as she could, A left and went home feeling anxious and confused. She did not tell anyone of what had occurred.
The circumstances of the second count of unlawful sexual intercourse occurred when A was about 10 years of age and she and her mother were visiting her grandparents’ home. While her mother and grandmother were having a cup of tea in one part of the house A became aware that the defendant was in a study using a computer. A wished to use the toilet and to do so had to go past the door to the study. As she did so, the defendant called her over and put her on his lap in front of the computer. While showing her how to use the computer the defendant put his hand in her pants and put his finger into her anus.
A gave evidence that the inappropriate touching continued. The third and remaining count of indecent assault with respect to A occurred about a year later. A, as part of church activities, had been out door knocking and then went for a picnic at Rapid Bay. On arrival A went to remove food provisions from the boot of the car. At that point she described the defendant coming up behind her and slipping his hand under her clothing and touching her on the breast. He pinched her on the nipple. There were other people present. She felt embarrassed. According to her evidence the defendant hurried away.
In the early 1990s the family moved to Middleton and contact between A and the defendant was reduced. However, when there was contact the inappropriate touching continued. In 1993 the family moved to Victoria and at that point the inappropriate sexual conduct ceased completely.
The fourth and fifth counts of indecent assault related to the complainant, B. B was four years younger than A. As earlier observed, B gave evidence of inappropriate touching involving similar behaviour to that alleged by A. The fourth count occurred when B was aged about seven years and the family was at a picnic at Cape Jervis. They had been engaged in church work in the morning and stopped for lunch. B said that on this occasion the defendant put his hands down the back of her pants and touched her in the area of her vagina.
The remaining count alleged a touching of B’s breast. This occurred after the move to Victoria in 1993 and on an occasion when the family was visiting the grandparents and B was staying with them. She was then aged about 11 years. On this occasion B was using the computer with the defendant seated behind her. She gave evidence that he put his hand under her clothing and touched her on the nipple area and rubbed her nipple. Her evidence was that the inappropriate sexual touching ceased from this time.
A gave evidence that she observed the defendant inappropriately touching B. She spoke of one occasion when B was sitting at the kitchen table facing her with the defendant behind her. She observed the defendant slide his hand down the side of B’s pants.
Some years after the inappropriate conduct had ceased, the complainants spoke between themselves about what had happened, discussing some but not all incidents. Further dialogue took place shortly before trial when they discussed matters in more detail.
In addition to the two complainants, the prosecution presented a police officer to give evidence of his arrest of the defendant and, through the officer, tendered a video of the record of interview. During the interview the defendant denied the allegations and suggested that they were fabrications. He did not give evidence in the trial.
Severance
Prior to the commencement of the trial, the Judge heard and rejected an application for severance. The defendant had sought to sever the counts with respect to the complainant, A, from the counts with respect to the complainant, B.
In dismissing that application the Judge gave written reasons. The Judge observed that the initial and principal ground upon which severance was sought was an allegation of concoction between the two complainants. As the Judge noted, both counsel agreed that the Judge in reaching his decision on the application should have regard to the relevant papers without the necessity of the calling of oral evidence. The Judge reviewed the witness statements and heard submissions from the parties.
In considered reasons the Judge observed:
In this case the complainants are sisters. They had each sworn four statements. They were born about 4 years apart. [A] was born on 26 May 1978 and [B] was born on 16 September 1982. They lived together as children. It was put to me that in those circumstances the possibility of collusion could not be excluded as a reasonable possibility. I disagree. Those facts disclose no more than a bare possibility of collusion. The offending is alleged to have occurred between 1986 when the older girl was 8 and 1994 when the younger girl was 12. That is what the Information alleges but the witness statements narrow the times somewhat so that the offences against [A] are alleged to have occurred when she was 10 or 11 (1988-1989) and those against [B] when she was 7 to 11 (1989-1993).
I will not go into detail but what the statements of the two witnesses disclose is that there were occasions when each told the other that she had been sexually abused by her grandfather. In deed on one occasion, the Elders of their church convened a meeting at which both women spoke (they say incompletely) of the abuse by their grandfather. [B] said that her sister [A] had wanted her to make a complaint about what their grandfather had done ([B’s] statement of 21 March 2007 par 19). Each spoke of telling at least one other family member or friend about the alleged abuse.
In these circumstances each had an opportunity to collude with the other to tell a full story. However, nowhere in the papers could I find any suggestion of a motive for either complainant to tell a false story much less any evidence from which an inference might be drawn that they had colluded to tell false stories. I do not take collusion to mean merely the sharing of information about alleged abuse. Collusion must be taken to mean the exchange of information leading to false stories being told. That might happen if witnesses literally put their heads together to concoct false stories. It might also happen if one witness related to another a true story but the hearer decided to tell a false story to support the first.
I concluded that on the materials before me there was no reasonable possibility of collusion or concoction. In other words, while not making a finding that there was no collusion or concoction, I excluded it as a reasonable possibility. That is the test laid down by the Court of Criminal Appeal in R v Bridger (supra) applying principles enunciated by the High Court and interpreted by interstate Courts of Criminal Appeal.
The Judge then considered whether there were other grounds to support severance and in particular whether the evidence of the complainants was cross‑admissible. The Judge reached the conclusion that the accounts of the two complainants were not strikingly similar. However, the Judge reasoned:
In these circumstances it cannot be said the accounts of each are strikingly similar. However, in my view there is sufficient commonality between their accounts to see an underlying pattern of behaviour. If concoction can be excluded as a reasonable possibility then there is high probative value in the evidence of one being admitted in the case involving the other. That probative value “lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred”[1]. In my view there is a high degree of probative value in the evidence of one complainant on the hearing of the evidence of the other. In my view their evidence is cross-admissible. The probative value clearly outweighs the undoubted prejudicial value. There is, in my view, no reason to prevent the evidence being heard together for that reason.
I decline to sever the counts involving one complainant from the counts involving the other. The evidence of the two witnesses should be heard together.
The Appeal
[1] Hoch v The Queen (1988) 165 CLR 292.
Cross-Admissibility
On the hearing of the appeal, the issue of cross-admissibility was raised in several different ways. It was said that the Judge erred in refusing to sever the complaints in respect of one complainant from those in respect of the other. It was further argued that cross-admissibility was not made out and that in any event the directions of the Judge to the jury in respect of the evidence said to be cross-admissible were wholly inadequate.
The defendant’s appeal is governed by section 353(1) of the Criminal Law Consolidation Act 1935 (SA). That subsection provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
At issue before this Court is whether the verdicts of guilty should be set aside by reason of some wrong decision on a question of law or on the ground that there has been a miscarriage of justice. In these circumstances, the correctness of the Judge’s voir dire ruling does not directly arise. The question is whether the verdicts of the jury should be set aside.
In the course of the Judge’s summing up he gave directions with respect to evidence of uncharged acts including the following:
You have to give separate consideration to each of the five counts. You will consider each count in the light of the evidence bearing on that count. That does not mean that you cannot say, having found count 1 proved or not proved, “What consequences does that have in relation to the next count?”. Logically there may be some consequences. What you do not do though is say “Having found one count proved or not proved, we must do the same in respect of all the others”. Each count has to be considered separately.
…
I want to say something on the topic of uncharged acts, that is, acts which are not part of the five charges that have been made. That might be loosely described as “relationship evidence”. It is evidence of sexual misconduct which is not the subject of the charges. The sort of evidence I am talking about is evidence that each of the women gave about their grandfather touching them about their private parts. I must give you a special direction of law about that. I need to say something about ways in which that evidence may be used and ways in which it may not be used.
Taking the second first, the evidence of the accused touching the women when they were girls may not be used to reason that the accused is likely on that account to have committed the charged offences. You would not say “Well, we are satisfied that he touched the girls on many times, therefore he must be guilty of the charged offences.” Your verdicts on the charged offences will depend on the evidence relating to them.
In addition, you could not use that evidence to reason that the accused is, on that account, of bad character and therefore likely to commit the offences that are charged. Nor could you say that the evidence of other touching shows that he had a propensity to sexual impropriety and that therefore that is what he has done on the charged occasions. They are the ways in which the evidence may not be used. What then are the ways in which the evidence may be used?
There are two steps. First, no piece of evidence can be used at all unless you are satisfied that it occurred. If you are not satisfied of the truth of a piece of evidence that one of the witnesses gave about any of the uncharged touching, then you would have to put that evidence aside and not use it at all. Once you are satisfied of the reliability of a piece of evidence of this sort, then you move to step two.
The evidence may be used in two ways in this case. The first is the evidence may be used to explain why neither child complained to anyone at the time, and indeed for a long time. They thought it was normal. They thought it was how grandfathers expressed affection. When they were touched in front of family members, either nothing was said or people laughed. Their grandfather laughed. It was funny.
Second, it may be used to explain why they put up only token resistance, such as wriggling or keeping distance. There is not a lot of evidence of either of those. There is no evidence of any anger, tantrums, screaming or objection. So the evidence of uncharged acts of touching that you find proved can be used to show that sexual touching was just regarded as normal. It was never really resisted and it was not complained about for a long time.
As earlier discussed, this case involved allegations made by two complainants that they were sexually abused by their grandfather when aged between 7 and 11 years. Each gave evidence of uncharged acts relevant to her own relationship with the defendant. That evidence, from each complainant, suggested ongoing sexual touching surrounding the incidents the subject of the charges. There was evidence from A of her having observed the defendant inappropriately touching B.
The relationship evidence was admissible from A with respect to the complaints made by A. The relationship evidence from B was relevant to the complaints made by B. There was no challenge to the admissibility of relationship evidence in this way at trial or on appeal. However, the cross‑admissibility of the evidence was challenged.
The Judge addressed cross-admissibility in some detail in his summing up as follows:
I need to say something about the cross-admissibility of evidence. That is, the way in which you can use the evidence of one of the women in respect of the counts which concern the other woman.
I will discuss the evidence itself in a moment. Before I do, it is important that I explain some quite strict rules that apply when separate events are being alleged against an accused. What use can you make of the evidence of [A] when you are considering the case against the accused in relation to [B] and vice versa?
The first rule is that you cannot use the evidence of one of the women in relation to the events involving the other unless you are first satisfied beyond reasonable doubt of the truth of the evidence of the first woman. So, for example, you would not use the evidence of [A] when considering the case against the accused in relation to [B] unless you are satisfied beyond reasonable doubt of the truth of [A’s] evidence on a particular count.
You would not, for example, use the evidence of [A] that she was indecently assaulted when considering the evidence of [B] being indecently assaulted unless you were first satisfied about the truth of [A’s] evidence of indecent assault. If you are not satisfied of the truth of the first woman’s evidence, you would put it aside when considering the evidence of the second. You would just consider the evidence of the second woman standing alone.
The second rule is that you do not use the evidence of one woman to conclude that the accused is the sort of person who would have committed the same or similar acts against the second. So you would not say “Well, I’m satisfied beyond reasonable doubt that [A] is telling the truth, therefore the accused is the sort of person who would have done the same to [B]”. That is a way in which the evidence cannot be used.
The third rule is the rule that says how the evidence can be used. It can be used in this way: you could find in the evidence of the women, about the way they were treated by the accused, such an underlying unity or system that the evidence cannot be explained by coincidence.
You may find that the evidence of the accused’s treatment of them is so similar that the only rational explanation for the evidence of the two of them is that it is true. It cannot be explained by mere coincidence. The only rational explanation for the similarity of the two of them is that it is true. You may be satisfied beyond reasonable doubt that he did those things. I am not suggesting you will do that but that is the way in which the evidence can be used.
The prosecutor has said that there is such evidence of a system or underlying unity and she drew your attention to various pieces of evidence suggesting the system. The pieces of evidence include, first, the fact that the complainants are both granddaughters of the accused. Second, the accused behaved in a joking manner and would sometimes use tickling as a means of instigating the offence.
Third, the accused would show the girls drawn images of naked women and would make sexually explicit remarks in front of female members of the family, but never in front of their father. Fourth, each woman alleges one instance of offending in public, one at Rapid Bay and the other at Cape Jervis. Fifth, both women have mentioned an incident occurring in front of the computer. Six, each woman says that the sexual touching started when they were very young, six in the case of [A] and four in the case of [B].
On the other hand, there are dissimilarities. There is no allegation of penetration by [B]. Another dissimilarity is that [B] alleges that the accused took photographs of her in the bath, whereas [A] does not.
The Judge then went on to consider what he described as the fourth and final rule with respect to a concoction. Later in these reasons, the topic of concoction is separately addressed. The Judge’s direction in that respect is set out in the course of that discussion.
The identification of the issues
At the outset, it is necessary to identify the issues at trial on which the suggested cross-admissible evidence is to be tendered. This step allows the suggested relevance and probative force upon which the admissibility of the evidence depends to be assessed.[2] The question raised on this appeal concerns the cross-admissibility of evidence in circumstances where, in the one family, there are allegations of sexual offending by the defendant against different complainants.
[2] Phillips v The Queen (2006) 225 CLR 303 at [26]. See also Hoch v The Queen (1988) 165 CLR 292 at 301 (Brennan and Dawson JJ); R v Handy [2002] 59 SCR 908 at [69].
Circumstantial evidence
Evidence proposed to be tendered as being cross-admissible may be characterised as circumstantial evidence with respect to each count. As Brennan J observed in Sutton:[3]
Evidence of similar facts consisting in proof of the commission of offences other than the offence charged is therefore a particular category of circumstantial evidence which is subject to a special exclusionary rule. It is wrong to regard evidence of that kind as undifferentiated from circumstantial evidence generally and to hold, as Wells J. held, that there are no categories of circumstantial evidence.
Dawson J similarly observed:[4]
Similar fact evidence is, of course, only circumstantial evidence but it is circumstantial evidence of a particular kind because of the inevitable prejudice, to use the words of Wilson J., which it carries with it. Although there is no necessary requirement of law or of practice, generally where the evidence in a case is circumstantial some direction ought to be given to that jury that before they convict the accused they must be satisfied that the facts are such as to be inconsistent with any other rational conclusion than the guilt of the accused. See Reg. v. Hodge [(1838) 2 Lewin 227, at p. 228 [168 E.R. 1136] at p. 1137]; Plomp v. The Queen [(1963) 110 C.L.R. 234]; Gant v. The Queen [(1981) 147 C.L.R. 503]. Such a direction is a particular expression of the mandatory direction that guilt must be proved beyond reasonable doubt, but it is appropriate in most cases of circumstantial evidence because it serves to emphasize the special care which must be taken in those cases.
[3] Sutton v The Queen (1983) 152 CLR 528 at 548.
[4] Sutton v The Queen (1983) 152 CLR 528 at 563-564.
In Sutton,[5] Dawson J then summarised the general approach to be taken to the reception of similar fact evidence:
The law does not admit evidence tending to show only that an accused person has committed other offences as proof of the commission of a particular offence with which he is charged. This is because mere proof of the other offences can do no more than demonstrate a criminal propensity and the prejudicial nature of evidence of this kind is far greater than any relevance it might have. To admit such evidence would be to invite the jury to proceed upon suspicion rather than proof. If, however, the evidence which tends to prove the commission of other offences has a sufficient additional probative value beyond showing a disposition to commit crime or a particular type of crime, then the evidence is admissible for that reason and not because it may show a criminal propensity. The cases in which similar fact evidence may have sufficient additional relevance to make it admissible are not confined, but recognized instances occur where the evidence is relevant to prove intent or to disprove accident or mistake, to prove identity or to disprove innocent association.
…
The question which arises with similar fact evidence, which because of its prejudicial nature is treated as a special kind of circumstantial evidence, is not only what direction should be given to the jury but whether the evidence is admissible at all. Having regard to the various expressions which are used to lay down the test of admissibility, it seems to me that a trial judge may find assistance in arriving at the correct test in any particular case by applying the same standard as the jury must ultimately apply in dealing with circumstantial evidence. If in considering the admissibility of similar fact evidence the trial judge concludes that there is a rational view of that evidence which is inconsistent with the guilt of the accused, then he ought not admit it because in those circumstances the evidence cannot be said to have a sufficiently strong probative force. Prejudice may operate where neither logic nor experience necessarily require the answer that the evidence points to the guilt of the accused and that being so the probative force of the evidence will not outweigh or transcend its prejudicial effect.
Such an approach is, I think, consistent with what this Court said in Martin v. Osborne [(1936) 55 C.L.R. 367] in considering the admissibility of similar fact evidence and is certainly consistent with the frequently expressed view that similar fact evidence is dangerous and is to be treated with greater caution than other circumstantial evidence. Of course, the question is ultimately one for the jury but if in order to rule that the evidence is admissible the trial judge must conclude (as it is clear he must) that it has a stronger degree of probative force than would lead merely to the conclusion that it is capable of being regarded, apart from propensity, as pointing to guilt, then it seems to me to follow that before admitting the evidence the trial judge himself must conclude that a reasonable jury would, if they accept the evidence, regard it as being inconsistent with innocence.
This is to say no more than that to be admissible the similar fact evidence must give rise to a clear inference tending to establish an element of the offence charged and must not be reasonably explicable upon some other basis. Notwithstanding that the question is one of admissibility, it is nevertheless a matter of degree rather than deductive logic and it cannot be said that a clear inference arises unless “general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved”. See Morgan v. Babcock & Wilcox Ltd [(1929) 43 C.L.R. 163, at p. 173.]
…
It is not, I think, a case in which any one circumstance common to the various offences was sufficiently striking to eliminate any reasonable possibility of coincidence. Rather it was the accumulation of common circumstances which had that effect. It is, of course, possible to consider each similar fact in the context of other similar facts and conclude that, looked at together, mere coincidence is not a reasonable hypothesis but be unable to reach that conclusion viewing each set of similar facts separately. Despite some suggestion to the contrary in the Court below, Perry v. The Queen [(1982) 150 C.L.R. 580 ] did not require each set of similar facts in that case to be regarded separately in order to arrive at their probative value; it was merely that the impugned evidence, even when viewed in the context of the other evidence, did not have the required probative force.
[5] Sutton v The Queen (1983) 152 CLR 528 at 562-565, 567-568.
A pattern of activity
In Hoch,[6] the High Court addressed the circumstance of several complainants making allegations of sexual abuse against the one defendant. Mason CJ, Wilson and Gaudron JJ drew on the above observations of Dixon and Evatt JJ in Martin v Osborne,[7] and observed that the basis of admission of similar fact evidence lies in that evidence possessing a particular probative value or cogency by reason that it reveals a pattern of activity, such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. Their Honours then addressed the circumstance, as in the present case, where an accused disputes the happenings which are said to bear a sufficient similarity to each other, as to make evidence of one happening in proof of the others. In this circumstance the issue is whether the acts, which are said to be similar, occurred at all.
[6] Hoch v The Queen (1988) 165 CLR 292.
[7] Martin v Osborne (1936) 55 CLR 367.
Mason CJ, Wilson and Gaudron JJ then proceeded to identify the two functions of similar fact evidence in cases such as the present:[8]
[Similar fact evidence’s] first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue.
These observations have been approved in the later High Court decisions of Pfennig,[9] Phillips[10] and HML.[11]
[8] Hoch v The Queen (1988) 165 CLR 292 at 296.
[9] Pfennig v The Queen (1995) 182 CLR 461.
[10] Phillips v The Queen (2006) 225 CLR 303. A detailed discussion of the difficult issues canvassed in Phillips and the earlier High Court authorities is to be found in David Hamer, “Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious” (2007) 30(3) UNSW Law Journal 609; and Jeremy Gans, “Similar Facts After Phillips” (2006) 30 Criminal Law Journal 224.
[11] HML v The Queen (2008) 245 ALR 204.
In considering the admission of the proposed evidence as circumstantial evidence, the analysis commences with the proposition that the evidence is assumed to be true - that is, that the defendant committed the alleged other misconduct. The proposed evidence, as a body of circumstantial evidence, may allow the inference to be drawn that the defendant had a tendency to commit misconduct of this kind. If it does, then, the accumulation of common circumstances may allow the inference or conclusion to be drawn that, looked at together, the events were not mere coincidences, but represented a pattern of similar conduct. If it does then the evidence is relevant, probative and cross‑admissible subject to any other relevant considerations.
Improbability reasoning
There is a further way in which the proposed evidence is relevant and admissible. The value of the proposed evidence may lie in the improbability of each of the complainants giving accounts of happenings having a relevant degree of similarity, unless, in fact, those happenings occurred. As Mason CJ, Wilson and Gaudron JJ observed in Hoch:[12]
Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R v Sims [[1946] K.B. 31]) or as corroboration (Reg. v Kilbourne [[1973] A.C. 729, at pp. 749, 751, 758]) but the better view would seem to be that it is relevant to prove the commission of the disputed acts: see Boardman [[1975] AC, at p. 452], per Lord Hailsham and Lord Cross [[1975] AC, at p. 458]; Sutton [(1984) 152 CLR, at pp. 556-557], per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman [[1975 AC, at p. 444]:
“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.”
Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims [[1946] K.B., at p 540]; Boardman [[1975] AC, at pp 439, 459-460]; see also Rupert Cross, “R v Sims in England and the Commonwealth”, Law Quarterly Review, vol. 75 (1959), p 333; Piragoff, Similar Fact Evidence (1981), pp 38-47.
[12] Hoch v The Queen (1988) 165 CLR 292 at 295-296.
The present proceeding
In the present proceeding, the purpose of the evidence said to be cross-admissible was to establish a pattern of behaviour by the defendant toward his young granddaughters and, in particular, a course of conduct by him involving inappropriate sexual touching amounting to sexual abuse. The evidence disclosed a distinct similarity in the manner in which the defendant went about the touching and abuse. This included tickling, progressing to touching of the areas of the breast and the genitals, the sitting of the granddaughters on his lap and inappropriate touching while in that position and a preparedness at times to engage in inappropriate touching while other family members were present including in public places. On the prosecution case this was not isolated behaviour by the defendant but formed part of a distinct and coherent pattern of behaviour on which the evidence of both complainants was relevant.
On the question of pattern or underlying unity, the evidence established that each complainant was touched by the defendant under clothing, either on the breast area or in the area of the vagina, and that this touching occurred while each complainant, when it first happened, was pre-pubescent. This pattern continued during the time that each complainant lived in the Port Elliot and Middleton area. The conduct occurred with persistence and on occasions in the context of the defendant sitting the complainants on his knee. The defendant was prepared to touch each complainant when immediate family were present. It is further to be observed that in respect of each complainant the defendant touched them under the clothing or to a part of the body in public after church activities on the occasion of a picnic lunch.
The pattern of behaviour of the defendant included the use of his relationship of trust as a grandparent to have frequent intimate contact with the complainants in his own home. He used the cover of that contact to accustom the complainants to inappropriate sexual touching with the intent that they would regard inappropriate touching as normal grandfatherly affection. The defendant commenced his conduct when the complainants were of a young age and continued that process over a period of years. The behaviour included the process of tickling as a prelude to inappropriate touching.
It is to be accepted that there was some measure of dissimilarity particularly in regard to matters of detail from the two complainants. However, these matters of dissimilarity do not detract from the conclusions referred to above.
On the threshold question of relevance, it is to be observed that direct evidence was given by each complainant in respect of each complaint concerning that complainant. The credibility and reliability of each complainant was in issue. This challenge to credibility and reliability gave rise to a consideration of the nature of the alleged offending, including the relationship between the defendant and each of the complainants and the context in which the offences were said to have occurred.
The evidence of one complainant was relevant to the complaints of the other in that it provided evidence of the context in which the offending occurred. The evidence explained why the complainants acquiesced in the offending of the defendant, did not complain to anyone until a considerable time had passed, and explained the defendant’s seeming confidence in the acquiescence and silence of his granddaughters. The evidence demonstrated that any association between the defendant and each complainant was not, in all likelihood, innocent. The evidence had the capacity to demonstrate that the offences actually occurred by providing the objective improbability of each complainant giving similar accounts of sexual conduct by the defendant toward them unless true. Finally, the evidence was relevant as supporting the evidence of each separate complainant in that the evidence of each complainant described markedly similar experiences which tended to suggest that what occurred was not a matter of pure coincidence but was likely to be true.
Joint concoction
A relevant matter when considering admissibility and, if admitted, whether evidence has any weight is the question of concoction. In Hoch,[13] Mason CJ, Wilson and Gaudron JJ considered the question of joint concoction:
In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view — viz. joint concoction — is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.
Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.
[13] Hoch v The Queen (1988) 165 CLR 292 at 296-297.
There is a difficulty in making an assumption that the similar fact evidence is true when determining admissibility, and at the same time considering whether there exists a real possibility of concoction. The latter consideration would appear to involve a questioning of the truth of the proposed evidence. This difficulty was addressed in Phillips,[14] where the Court observed:
What is said in Pfennig v The Queen about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations. First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case. Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.
[14] Phillips v The Queen (2006) 225 CLR 303 at [63] (footnotes omitted).
In the present proceeding there was evidence that the complainants, as adults, had discussed past incidents involving the defendant. It may be immediately observed that as the complainants were sisters the fact that they should discuss their grandfather’s conduct toward them would not be unexpected. In fact it could be considered as normal behaviour.
The Judge gave the jury careful directions with respect to the question of concoction and whether the complainants had put their heads together. In that respect, the Judge provided the following direction:
[Counsel] for the defence submits that there is no criminal system. There is no apparent system or underlying unity. He says you should conclude that the women have got together as adults and have come to the point of making false stories about their grandfather.
That submission leads to the fourth and final rule: if you thought it could be that one or both women’s accounts have been concocted or made up or prompted by the account of another, then you would not be able to put their evidence together. If you could not exclude the possibility that [A] and [B] had put their heads together to come up with similar stories, then of course you could not put their evidence together.
So only if you can exclude as a reasonable possibility that they have put their heads together to concoct a story, or you could exclude the possibility of their making up a story, having heard the other’s story, could you use their evidence together.
The question of possible joint concoction was adequately addressed by the Judge in the above direction. The jury had to exclude joint concoction as a reasonable possibility before they could make use of the complaints’ accounts together.
Conclusion re cross-admissible
The evidence established that the defendant, as a middle-aged man, was sexually attracted to his young granddaughters. His conduct toward each of the complainants occurred in circumstances where they were young family members at his home or at family gatherings where the opportunity to take advantage of his proximity arose. The complainants described the sexual abuse as having occurred in the course of an apparently innocent contact with the defendant, which placed him in close physical proximity to them. He took advantage of that proximity to engage in acts of inappropriate sexual contact, including inappropriate touching over or through clothing. The defendant’s conduct on each occasion could be described as “brazen”. In my view, the evidence of each complainant was relevant and probative with respect to the counts concerning the other complainant. There is a sufficient similarity about the conduct to evidence propensity on the part of the defendant to have committed the alleged conduct.
Equally, the fact that the complainants each complained of similar conduct toward them would suggest that the occurrences were not coincidental. The value of the evidence also lies in the improbability of the complainants giving accounts of happenings having a marked degree of similarity, unless those happenings in fact occurred. To adopt the words of Lord Wilberforce in Boardman:[15]
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.
[15] DPP v Boardman [1975] AC 421 at 444.
As has been pointed out in Hoch, Pfennig, Phillips and HML, the question of cross-admissibility is to be assessed assuming the truth of the proposed evidence, and a consideration of that evidence in the context of the prosecution case. In the present proceeding, the primary evidence in regard to the separate accounts comes from the particular complainant. In each case, the direct evidence of the complainant of the sexual assault, assuming the truth of the other complainant’s evidence, is such that it could not be said that there was no rational view of the challenged evidence consistent with the innocence of the defendant.
Delay – Longman Direction
The defendant complained on appeal that the delay that had occurred resulted in an unfair trial. The conduct of the defendant the subject of the charged and uncharged acts was said to have commenced in the early 1980s and to have concluded in late 1993. Accordingly, the events at the time of the trial had occurred in a period of between 10 and 25 years earlier. On any view, there was substantial delay.
On the issue of delay the Judge gave the following directions during his summing up:
I want to say something about delay. As you know, there has been a fairly long delay between the time of the last allegation that the accused behaved inappropriately towards each of the complainants and the time that each of them reported the matters to the police. In the case of [A], it is about 18 years and in the case of [B] it is about 14 years.
Just because a complaint is made, even after a long delay, does not necessarily mean that it is false. There may be many reasons why there is a delay in making a complaint. Each woman said that when they were children they thought that the sorts of things that were being done to them were normal and even when they came to realise that it was not normal, they felt that for reasons of family relationships they should not say anything about these matters.
You will have to bear in mind that there are what I might describe as forensic difficulties when there have been late complaints, as is the case here. There are difficulties for each of the complainants to remember what happened. There may be forensic difficulties for the accused. He may not be able to recollect events. He may not be in a position to call eyewitnesses and he may not be in a position to produce documents.
It becomes necessary in cases like this to scrutinise the evidence of each of the complainants very carefully. You can only convict on any particular count if, having given the evidence of the complainant on that count very careful scrutiny, you are satisfied beyond reasonable doubt that the accused was guilty of that count and you would apply the same reasoning to each of the counts.
Toward the end of his summing up, when discussing the defence case, the Judge observed:
[Counsel] for the defence began by explaining your role in the process and his role. He referred to the difficulties that occur in cases where there had been delays such as had occurred in this case. The allegations might be clouded by the blurring of time. There is the possibility of corrupted recollections of the past by the two women; that there is reconstruction by suggestions and promptings by others; that the memories had been corrupted. They are inaccurate and possibly wrong.
There is a problem created for the accused. He can do no more than utter a simple denial. He is not in a position to marshal eyewitnesses and documents. He says that what you have here, after such a delay, is adult witnesses who are reinterpreting events of their childhood. They may wrongly believe that they are telling the truth but they may be mistaken.
He said that they were not independent of each other. They were plainly two sisters who had grown up together. They had talked together. They had corrupted their recollections. It was not necessarily, he said, a conspiracy to lie but since the discussions began in 2002, there might have been a subconscious false recollection on both their parts.
He suggested that a way of processing the evidence that you have heard is to ask whether it sounds right. He referred to count 1 which I will not canvass in any detail but he said that is, in all likelihood, a recovered but false memory.
The High Court decisions of Longman[16] and Doggett[17] establish that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed an accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning should be backed by the judge’s authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case.[18]
[16] Longman v The Queen (1989) 168 CLR 79.
[17] Doggett v The Queen (2001) 208 CLR 343.
[18] See also R v BFB (2003) 87 SASR 278 per Doyle CJ (with whom Perry J agreed) at [36]; Crampton v The Queen (2000) 206 CLR 161 per Gaudron, Gummow and Callinan at 180-181, [42].
Further, the judgments of McHugh and Deane JJ in Longman, and the judgment of Kirby J in Doggett establish that substantial delay coupled with such matters as the possibility of distortion, the absence of a timely complaint and the fragility of youthful experience also give rise to the need to give a warning.[19]
[19] R v GPP (2001) 129 A Crim R 1 per Heydon JA at 13-31, [18-80].
The High Court authorities do not specifically identify when a Longman warning is mandatory. The test to be applied in determining whether or not a warning should be given has been expressed as follows:[20]
The issue is whether there is a circumstance in the case that gives rise to a perceptible risk of a miscarriage of justice, and accordingly gives rise to the need for a warning. That will depend on the circumstances of the case, the time that elapsed, and whether the accused is placed at a significant disadvantage.
The High Court has not prescribed the specific content of the warning if a warning is required. It appears that the warning does not have to be given in particular terms.[21] In Gaulard[22] it was noted that while the authorities use the word “dangerous”, the adequacy of a warning is not “necessarily sensitive to whether that [word] is uttered”.
[20] R v BFB (2003) 87 SASR 278 per Doyle CJ at [38].
[21] Johnston (1998) 45 NSWLR 362 per Spigelman CJ at 369; Crisafio v The Queen (2003) 27 WAR 169 per Murray J at 103 [17-18]; see also the comments of Gleeson CJ in Doggett v The Queen (2001) 208 CLR 343 at [2].
[22] Gaulard v The Queen [2000] WASCA 218 at [14].
Nevertheless, from Longman, Doggett and Crampton it appears that the content of the warning should be given with the authority of the judge and should include,[23] a reference to the fact that by virtue of the delay the accused is unable to adequately test and meet the complainant’s evidence, and warning in clear and emphatic terms, of the danger of convicting the accused unless the jury is satisfied of the truthfulness and reliability of the complainant’s evidence after scrutinizing the evidence with great care and after considering the circumstances relevant to its evaluation and paying heed to the warning. The warning must be related to the evidence and must be balanced. The warning may also include, depending upon the circumstances, reference to the possibility of distortion, the absence of a timely complaint and the fragility of youthful experience.
[23] Longman v The Queen (1989) 168 CLR 79 per Brennan, Dawson and Toohey JJ at 90-91, Deane J at 100-101, McHugh J at 107-108; Crampton v The Queen (2000) 206 CLR 161 per Gaudron, Gummow and Callinan JJ at 180-181, Kirby J at 209; Doggett v The Queen (2001) 208 CLR 343 at 377 per Kirby J at 377.
The need for a warning was reaffirmed by Doyle CJ in BFB:[24]:
These decisions in turn have received extensive consideration in decisions of intermediate appellate courts in Australia. It appears that trial judges are having difficulty in applying to cases involving sexual offences the principle considered in Longman. Longman and Doggett established that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning must be backed by the judge's authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case.
[24] R v BFB (2003) 87 SASR 278 at 283.
In the present case the words chosen by the Judge to address the question of delay and the consequences of the forensic disadvantages to the defendant did not include the word “warning”. However, the Judge’s observations did incorporate a reference to the length of the delay in relation to both complainants, the difficulty that each complainant had to remember what occurred, the possible difficulties in recollection for the defendant, that the defendant may not be able to call eye‑witnesses and that the defendant may not be able to produce documents. The Judge further directed the jury to scrutinise the evidence of each complainant very carefully and only to convict on a particular count after giving the evidence of the particular complainant to that count very careful scrutiny and then being satisfied beyond reasonable doubt that the accused was guilty on that count.
These observations of the Judge must be considered in their context. The question of delay was the subject of comment during the prosecutor’s opening and in both counsels’ final addresses. In particular, counsel for the defendant drew to the jury’s attention the disadvantages suffered by the defendant as a consequence of the delay and the forensic disadvantage under which he laboured. As earlier noted the Judge, when addressing the defence case, summarised these submissions at length toward the end of the summing up. At the end of the trial there was no complaint by counsel about the adequacy of the Judge’s directions with respect to delay.
In my view the circumstances of the present case did call for a direction about delay and in particular for the jury’s attention to be drawn to the forensic disadvantages suffered by the defendant. Although Longman and other cases speak in terms of a warning, there is no prescription as to the precise words to be used. The question in a particular case is whether what was said by the Judge on the topic adequately safeguarded the defendant against an unfair trial. In other words, in assessing the defence case and when considering the weight to be given to the evidence led by the prosecution, the triers of fact needed to fully understand the forensic disadvantages suffered by the defendant. In my view the observations of the Judge in the context of the trial provided an adequate direction to the jury on this topic.
Counsel for the defendant contended that the failure to give a “warning” was an error of law and as such the appeal should be allowed subject to the proviso. I do not agree. In my view the question is whether there is any risk of a miscarriage of justice sufficient to warrant the intervention of the appeal court. Even if counsel were correct that an error of law occurred, having regard to the record and to the above observations, this is a case where I would apply the proviso.[25]
[25] Weiss v The Queen (2005) 224 CLR 300 at [42-44]; Cesan v The Queen [2008] HCA 52, (2008) 83 ALJR 43 at [123-129].
Credibility and Reliability
It was further submitted that the Judge erred in failing to adequately warn the jury in respect of the risks of a miscarriage of justice arising from the substantial delay that occurred between the date of the alleged incidents, the subject of the complaints, and the date of trial. In particular, it was complained that there was an inadequate direction with regard to the assessment of credibility and reliability of each complainant in these circumstances.
Counsel for the defendant on the appeal submitted that the credibility and reliability of both complainants was substantially damaged by their poor memory, by inconsistencies in their statements and evidence, and finally because of their discussion about the alleged treatment toward each of them by the defendant.
These matters were bought to the attention of the jury and in any event were self-evident on the face of the evidence. They were proper matters to be considered in weighing the evidence of the complainants but none of those matters, either separately or cumulatively, necessarily led to any conclusion as to the credibility and reliability of the complainants. The Judge’s directions on this topic were adequate and a review of the transcript demonstrates, in my view, that the verdicts reached by the jury were open to them. There was a suggestion that the one verdict of not guilty showed an inconsistency with the other verdicts and, together with what was said to be the general lack of credibility and reliability, was sufficient to satisfy this Court that there had been a risk of a miscarriage of justice. I disagree. In my view, the jury were able to, on the evidence, reach the conclusions that they did for each count and that there were sufficient grounds to differentiate between the not guilty verdict and the guilty verdicts.
It was finally complained that the majority verdicts of guilty were unreasonable and unsafe and unsatisfactory thereby giving rise to miscarriage of justice as a result of a cumulation of the errors. It was said that the acquittal on the second count of unlawful sexual intercourse put the guilty verdicts into question. Having regard to my earlier reasons, there is no substance to this complaint.
Conclusion
I would dismiss this appeal.
VANSTONE J: The appellant was tried in the District Court for five charges of a sexual nature, allegedly committed during a period going back about two decades against two of his grand-daughters. He was found guilty of four offences.
He appeals against those convictions, arguing that a miscarriage of justice resulted from the refusal of the learned trial judge to order separate trials in respect of each complainant, and from certain asserted defects (or more accurately, deficiencies) in the directions given to the jury by the judge, notably in the judge’s warning to the jury as to the consequences of the long span of time between the alleged offending and the trial. It is further argued that the verdicts are unreasonable, unsafe and unsatisfactory, for reasons which include the acquittal on one count.
Background
In light of the nature of the appeal grounds it is necessary to descend into some detail in relation to the evidence.
The elder complainant, whom I shall call “A”, was born in May 1978. She is four years older than her sister, “B”. A related that her first memory of inappropriate touching by the appellant – her mother’s father – was when she was about six years of age. It consisted of tickling, starting at her back but progressing under her clothing to her chest or beneath her underclothing. She would often be seated on the appellant’s lap when this took place. Her mother would often be present; but it never occurred in the presence of her father. In about March 1983 the sisters’ family moved to a country town. Not long after that the appellant and his wife and their youngest son followed the family to that town, moving into the house next door.
According to A, the appellant’s handling of her then “seemed to go to another level”. She described an incident (count 1) when her mother told her to go to her grandparents’ home after school. She was aged ten years at the time. Only the appellant was at home. Initially she played outside. Later, when she came in for a drink, the appellant called her over “for a hug”. He put A on his knees. She described how he penetrated her vagina with his index finger, moving it in and out until she “felt excited and flushed and … different” from how she had ever previously felt. That was the first instance of penetration she could recall.
Count 2, of which the appellant was acquitted, was described as having occurred in about the same period, in the same house, but in a room accommodating the appellant’s computer. The girls’ mother and grandmother were said to be present although in the dining room. A described needing to go to the lavatory which took her past the appellant, who was seated at his computer. He called her into the room, saying he wanted to show her something. She saw that he had a child’s game on the screen. He was demonstrating the game, using the mouse in his left hand. A said he then penetrated her anus with his middle finger. In cross-examination A agreed that in a “writing” relating to this incident, she had described the appellant, in the dining room, being given a cup of tea by his wife, and then taking A with him to the computer. She asserted that her evidence, rather than the writing, was correct.
While counts 1 and 2 were unlawful sexual intercourse with a person under 12, the balance of the charges were of indecent assault. Count 3 also arose from A’s evidence. She said she was 11 years of age when it occurred in the period May 1987 to May 1989. A related that her family belonged to the Church of the Jehovah’s Witness. Quite often the family would go, on weekends, to other country areas to knock on doors and speak to the occupants about the bible. This was referred to in the family as “witnessing”. Often, a larger group from the church would gather for a picnic lunch at a pre-arranged site. On this occasion, A described being in the appellant’s vehicle with her mother and grandparents. When they arrived at Rapid Bay for lunch A alighted quickly as she was feeling carsick. She went to the boot to help take out the picnic lunch. The appellant was quickly beside her. He slid his hand up under her arm and under her bra and pinched her nipple, hurting her. He pressed against her. She could feel his erect penis against her lower back. When the others emerged from the vehicle, she said he walked quickly to the nearby public toilet.
Counts 4 and 5 were charges of indecent assault of B. B was born in September 1982. At trial she was aged 26 years. She said that these offences occurred against a background of a relationship with her grandfather in which “he always seemed to have his hand down the back of my pants”. Often this would be done under the guise of tickling. The tickling would be innocent at first, but would progress to tickling of her breasts and vulva. B said that if she resisted him, the appellant would laugh, or whistle, or hum, making a joke of the interaction. This conduct would happen in the presence of family members except for her father. She also described the appellant “always [wanting] to give [her] a bath” and taking photographs of her whilst she was in it.
She described the incident on which count 4 was based as occurring on the occasion of a family picnic at Cape Jervis when she was seven years of age in 1989 or 1990. She said the family was in the area on that day “preaching” and stopped there for lunch. B described her family sitting in a picnic area and herself as being a little way away under some pine trees. She described the appellant coming up behind her and putting his hand down the back of her skirt and underwear and quickly touching her vagina. She said that it was unusual for him to do such a thing when they were out in public. B said it was about six months later they moved to the other country area, a little further distant from the first one. After that move, although she recalled the appellant touching her breasts under her clothing, she did not recall him again touching her vagina.
In early 1993 the family moved to Victoria. She related two specific incidents which occurred after that time. The first of those was not charged. It occurred on an occasion when the family came from Victoria and visited the appellant.
The second one, count 5, occurred during the second visit from Victoria between September 1993 and September 1994. B described how the appellant took her into his office, containing a computer, and set up a game for her to play on it. While she was playing the game he sat on a chair behind her and started tickling her back under her T-shirt. That progressed to touching her breasts and rubbing her nipple. She said that the appellant was breathing heavily as he did so. She said the touching was for quite an extended period and that it scared her. B said that the last time she saw and spoke to the accused was during a visit to South Australia related to A’s engagement to be married. That occurred in 1997.
Both A and B described seeing the appellant touching the other in a way similar to the manner in which he touched them.
B agreed in cross-examination that she had spoken to A about her grandfather’s conduct, the first conversation being in June 2002. She had informed A that she had seen the appellant touch her. B said that although the two sisters had spoken a little of the appellant’s conduct, they had not discussed the details of it. She said they lived far from each other and there were reasons associated with dealing with the memories which made her reticent to burden anyone else with the information.
Both complainants spoke of a meeting with some “elders” of the Jehovah’s Witness Church, that meeting being initiated by A. It occurred in 2003. It was acknowledged by A that during the meeting she had falsely denied to the elders that the appellant had penetrated her. Similarly, B said she had not disclosed that her grandfather had touched her vagina. Both witnesses explained those denials in terms of not trusting the elders.
The complainants reported the matter to police in 2007. The allegations were put to the appellant in an interview in September 2007. The appellant denied the allegations. The charges which went to trial alleged that the conduct occurred during various specified periods. The elapse of time between the offences alleged by A and her report to police was between 18 to 21 years, depending on which date is used. For B, the time between the offending and the appellant’s interview was at least 13 years and as much as 18 years, depending on which count and date is taken.
I turn then to the grounds of appeal.
Ground 1 – cross-admissibility of evidence of each complainant
It was not suggested that all five charges were not properly joined in terms of s 278 Criminal Law Consolidation Act 1935 (CLCA).
Both at trial and before this court counsel acted upon the assumption that if the evidence of one complainant was not admissible in respect of the charges concerning the other, then separate trials should have been ordered pursuant to s 278(2).
The appellant’s argument, consistent with that made at trial, was, first, that the two sets of charges were not admissible as similar fact evidence, because their probative value fell short of the requisite degree of strength. Then it was put that even if the required degree of similarity was present, concoction or contamination could not be eliminated as a possibility, and so the order for separation of the trials should have been made. It was said that a miscarriage of justice resulted.
In my view this ground of appeal does not necessitate a close examination of the reasoning underlying the trial judge’s decision not to order separate trials. The judge’s consideration was based on the statements of the witnesses which are not, in any event, before us. We have been told from the bar table that the evidence in the trial conformed with those statements, but, no doubt, the evidence was more comprehensive. I consider the decision to order separate trials pursuant to s 278(2) CLCA is a discretionary matter, even if it turns largely on cross-admissibility, which is a matter of law. It follows from the terms of s 353(1) CLCA that the appellant must demonstrate that a miscarriage of justice flowed from the fact that one jury determined all the charges. It is not enough simply to assert, or even to satisfy the court, that the application for separate trials should have succeeded. The judge’s decision has been overtaken by the course of the trial.
The position is analogous to a ground of appeal complaining of a trial judge’s decision not to order a mistrial on account of inadmissible material inadvertently coming before the jury. The first question on appeal is not whether the judge’s decision was correct, but rather whether a miscarriage of justice resulted: Maric v The Queen (1978) 52 ALJR 631, 634. In some cases this point might be of importance; here, by reason of the evidence at trial largely conforming with the statements, little seems to turn on it.
In order to be admissible, similar fact evidence must be of such probative force that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 per Brennan J at 609; Phillips v The Queen (2006) 225 CLR 303 per The Court at 320. It must be of such cogency that “if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the events charged”: Hoch v The Queen (1988) 165 CLR 292 at 296; Pfennig v The Queen (1995) 182 CLR 461 at 483; Phillips v The Queen at 323.
I consider that the evidence of the two complainants clearly met this test. As seen, the complainants were sisters, the abuse of each began at a similarly young age and in each case the appellant accustomed the girls to constant touching, including tickling, as a prelude to indecent handling. Much of the offending took place in the presence of family members, including each other, and at the appellant’s home. However, both complainants said that the touchings never took place in the presence of their father. Each witness described an occasion of being lured to play on the appellant’s computer, where an indecent touching occurred.
The appellant’s argument to the effect that the evidence of the complainants was insufficiently similar to justify cross-admissibility focussed on the nature of the sexual contact itself. Counsel cited R v Turney (1990) 52 SASR 438 where a child gave evidence that her mother’s husband had engaged in oral and anal intercourse with her. The child’s mother was permitted to give evidence at trial that the accused had sought intercourse of similar kinds from her. This was said to prove a particular predilection on the part of the accused and to render it more likely that the complainant was truthful. The court held that intercourse of the kind alleged was not so uncommon as to render the complainant’s evidence more likely true. The fact remains that relevant similarities may be found, not only in the sexual activity, but in all the circumstances of the commission of the offending.
More emphasis was placed by Mr Peek QC, counsel for the appellant, on the argument that the evidence was incapable of meeting the Hoch test because the possibility of concoction or contamination could not be excluded. In Hoch, in the joint judgment of Mason CJ, Wilson and Gaudron JJ, reference was made to the judgment of Lord Wilberforce in R v Boardman [1975] AC 421 at 444 where, speaking of similar fact evidence, his Lordship said:
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 be true, or have arisen from a cause common to the witnesses or from pure coincidence.
As the High Court judges observed at 296, where collaboration or concoction could rob the evidence of the requisite degree of probative value, such a possibility could amount to a “rational view of the evidence” that is inconsistent with the guilt of the accused.
Taken at face value, this might suggest that any theoretical possibility of concoction or collaboration would necessarily destroy the probative value of the evidence. However, in my view that is a misreading of the judgment. The judges went on to say, at 297, that the question of whether the evidence was reasonably explicable on the basis of concoction did not necessarily involve an examination on the voir dire. If the depositions indicated that the complainants had a “sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence [would] lack the degree of probative value necessary …” The issue was whether “in the light of common sense and experience”, the evidence was capable of “reasonable explanation on the basis of concoction”.
In the judgment of Brennan and Dawson JJ, this consideration was expressed in terms of concoction being a “real possibility”. It was said (at 300) that if there were a “real chance that the evidence [was] a concoction born of a conspiracy” then the evidence would not possess the requisite degree of probative force.
This issue was considered in this court in R v Bridger [2003] SASC 180; (2003) 141 A Crim R 287. Duggan J, with whom Debelle and Lander JJ agreed, said at [38]:
It seems clear that the bare possibility of collusion as opposed to a real or reasonable possibility would not be sufficient to warrant exclusion. In cases in which the complainants are known to each other and have continuous contact with each other it would be difficult to exclude the bare possibility of collusion.
His Honour went on at [39] to say that the “possibility of concoction, must be understood as a reasonable possibility based upon some factual foundation and not merely fanciful possibility”. In my view, to say as much is only to express in an alternative and helpful form the application of the circumstantial evidence direction, used in the judgment of Mason CJ, Wilson and Gaudron JJ in Hoch as the criterion of admissibility of this sort of evidence.
In this case the trial judge was entitled to take the view that concoction was no more than a theoretical possibility. He was entitled – in fact, as seen, directed by the principal judgment in Hoch – to consider whether the complainants had “opportunity and motive for concoction”. Such an opportunity was plainly present, but the fact that the complainants lived in different states and had limited contact told against such an explanation as a matter of common sense. The question of motive might be highly relevant in the context of allegations made in circumstances such as Hoch (where the appellant was a recreation officer at a boys’ home) or Boardman (where the appellant was the headmaster of a boarding school) but it is much more difficult to see how two adult women could have a motive to concoct allegations such as these against a grandparent, many years after the event.
As I mentioned, this court has the advantage of assessing the transcript of the sworn evidence of each complainant, including their cross-examination. An evaluation of that evidence to my mind indicates the correctness of the view of the trial judge that the evidence was indeed admissible by reference to the similar fact principles and there was no basis upon which to entertain a reasonable possibility of concoction.
I specifically reject the appellant’s argument that, in considering the question of motive for joint concoction, “his Honour fell into the trap” identified in Palmer v The Queen (1998) 193 CLR 1 of framing the question: “Why would the complainant lie?” As seen, one factor at the point of considering admissibility, is, as his Honour identified, whether there was any evidence at all of a motive shared by the two women to concoct lies against their grandfather. There was not.
Although the particulars of ground 1 included a complaint about the directions given on how evidence of offending against one complainant could, and could not, be used in relation to the other complainant’s evidence, no oral or written argument was placed before us. I treat that complaint as being abandoned.
Ground 2 – directions of law including on the delay in complaining
The appellant complained of a number of aspects of the directions given to the jury relating to the long time period between the offences and the complaints and trial, relying on Kilby v The Queen (1973) 129 CLR 461, 469. It was argued that the judge failed to direct the jury that the delay was a matter which could be seen as adversely affecting the credibility of the complainants. It was submitted that although the judge was obliged to comply with s 34I(6a) Evidence Act 1929, that provision did not negate the need for a Kilby direction. Reliance was placed on Crofts v The Queen (1996) 186 CLR 427 where it was held that a provision comparable with s 34I(6a) did not detract from the established requirement that the trial judge give such directions as were needed to ensure the accused received a fair trial: at 450-451. The Court made clear that provisions such as that under consideration were designed to restore a balance of fairness to the complainant. The legislative purpose should not be undermined.
It was further argued that the direction given in purported compliance with the principles discussed in Longman v The Queen (1989) 168 CLR 79 was defective in that the direction was not framed in terms of a warning, neither the words “dangerous” nor “warning” being used; that the forensic difficulty of which Longman speaks was assigned as much, if not more, to the complainants as to the appellant and were described as being possibilities rather than actual; and that the warning was not adequately related to the facts of the case. Counsel argued that neither the perception that the case was a strong one, nor the fact that the appellant did not give evidence in his defence, detracted from the applicability of the principles to which he pointed.
I shall set out the obligation imposed by s 34I(6a) Evidence Act (as it then stood) and then the judge’s directions.
(6a)If, in proceedings in which a person is charged with a sexual offence, any information is presented to the jury, or suggestion made in the presence of the jury, that the alleged victim failed to make a complaint, or delayed in making a complaint, about the alleged offence, the judge must—
(a) warn the jury that the alleged victim’s failure to make a complaint, or delay in making a complaint, does not necessarily mean the allegation is false; and
(b) inform the jury that the victim of a sexual offence could have valid reasons for failing to make a complaint or for delaying in making a complaint.
The directions given by the judge touching upon the question of delay were as follows:
13I want to say something about delay. As you know, there has been a fairly long delay between the time of the last allegation that the accused behaved inappropriately towards each of the complainants and the time that each of them reported the matters to the police. In the case of [A], it is about 18 years and in the case of [B] it is about 14 years.
14Just because a complaint is made, even after a long delay, does not necessarily mean that it is false. There may be many reasons why there is a delay in making a complaint. Each woman said that when they were children they thought that the sorts of things that were being done to them were normal and even when they came to realise that it was not normal, they felt that for reasons of family relationships they should not say anything about these matters.
15You will have to bear in mind that there are what I might describe as forensic difficulties when there have been late complaints, as is the case here. There are difficulties for each of the complainants to remember what happened. There may be forensic difficulties for the accused. He may not be able to recollect events. He may not be in a position to call eyewitnesses and he may not be in a position to produce documents.
16It becomes necessary in cases like this to scrutinise the evidence of each of the complainants very carefully. You can only convict on any particular count if, having given the evidence of the complainant on that count very careful scrutiny, you are satisfied beyond reasonable doubt that the accused was guilty of that count and you would apply the same reasoning to each of the counts.
It is important to bear in mind that this was a case where reasons were advanced by the complainants for the long delay which occurred before they made their complaints. The fact of that delay, the explanations for it and its various effects were prominent in every facet of the case. As well, the appellant had the benefit of a skilfully presented defence in which arguments in his favour were strongly made. It is implicit in the very fact that reasons for delay were advanced and criticised, that the absence of adequate explanation would likely tell against the credibility of the complainants. The judge’s direction that even a long delay did not necessarily imply falsity, in [14] above, acknowledged as much. Indeed, a major thrust of the cross-examinations of the women was that the allegations had been “developed” over a long period by the two complainants in consultation and that such a progression was very much demonstrated by their failure, when talking to the elders, to make allegations as serious as the ones they made in their evidence.
It should not be forgotten that the statement made by Barwick CJ in Kilby at 465 to the effect that the jury was entitled to take into account that the complainant had made no complaint at the earliest reasonable opportunity, was made in the context of a charge of rape. The former Chief Justice said that such a direction “would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given”. However, it can readily be seen that the expectation recognised by the law that usually a genuine victim of rape would promptly complain, could not easily be translated into an expectation that young victims of sexual offences by a grandfather would similarly act. In this context the fact that reasons were advanced by the two complainants for having failed to complain over many years is of significance. Particularly where the delay in complaining was a crucial arm of the attack on the complainants’ credibility, the potential for the delay to undermine the complainant’s credibility was self-evident. Therefore, I do not consider that the failure to give the direction of which Barwick CJ spoke was an error.
That is not to detract from statements made in the plurality judgment in Crofts. As mentioned, that case concerned directions given in a trial for sexual offences committed against a child after the enactment in Victoria of a provision comparable to our s 34I(6a). There the trial judge used the new provision to effectively quarantine the complainant from criticism arising from the delayed complaint. The High Court unanimously held that it was wrong for the trial judge to instruct the jury that they were not entitled to view the delay in complaining as an indication of untruthfulness. The court further held that the statutory provision did not abrogate the rule requiring, in appropriate circumstances, what has been referred to as a Longman warning. It was observed, at 448, by Toohey, Gaudron, Gummow and Kirby JJ that:
... in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false.
I interpolate that in the present case, the delay was neither inexplicable nor unexplained. But, in any event, the vice identified in Crofts was not one which appeared in the summing up in the present case. Their Honours further observed that the “abiding judicial duty” was to assist the jury in weighing the potential significance of a delay in complaining. In my view, the judge did so.
To summarise on this issue, in the particular circumstances of this case, including that the delay was not unexplained and, indeed, was readily explicable in terms of the young age of the children and the family dynamics at play, and bearing in mind the forensic focus on the question of delay in terms of Longman, I do not consider that the judge was obliged to go any further than he did in explaining that the delay might be a factor telling against the complainants’ credibility.
This appeal does not provide occasion to survey the decisions in Longman, Robinson v The Queen (1999) 197 CLR 162; Crampton v The Queen (2000) 206 CLR 161, Doggett v The Queen (2001) 208 CLR 343, and Tully v The Queen (2006) 230 CLR 234 and various decisions in this jurisdiction which have followed, for example, R v Kostaras (No 2) (2003) 86 SASR 541, R v RWB (2003) 87 SASR 256 and R v BFB (2003) 87 SASR 278. I note in passing that by s 16 of the Statutes Amendment (Evidence and Procedure) Act 2008, what has been known as the Longman warning has been abolished. In future cases governed by the new provision inserted into the Evidence Act, a trial judge will not be entitled to give a “warning” in respect of the features which would previously have led to warning in terms of Longman. The judge will not be required to assume any forensic disadvantage to the accused – but will have to form an opinion about it based on the evidence – and will not be entitled to use words such as “dangerous” or “unsafe” in relation to the prospect of a conviction based on such evidence: s 34CB Evidence Act 1929. In R v Seigneur [2009] SASC 59, a case stated for consideration of the Full Court relating to the transitional provision regulating the commencement of parts of this amending Act, it was determined that amendments (which include s 34CB) would apply to trials on any information filed in the court of trial on or after 23 November 2008, being the date the provisions came into effect. Clearly, even if this Court were to allow this appeal, the re-trial of these charges would be governed by the law previously in effect.
I turn then to the complaints related to the Longman warning.
If there is a need for a warning, it is a product of the general requirement that a warning be given where it is “necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”: Longman at 86; Bromley v The Queen (1986) 161 CLR 315, 319, 323-325; Robinson at 168. However, assuming that a warning in terms of Longman is required, then its nature and strength will depend upon the circumstances of the case. In Bromley, at 325, Brennan J put it this way: “[t]he possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.” See also R v Corrigan (1998) 74 SASR 454 at 465 per Doyle CJ. Since the warning is given to avoid a perceptible risk of miscarriage of justice, no set form of words or terms can be required. As Doyle CJ said in R v Green (2001) 78 SASR 463 at 473:
In this area, nothing is to be decided by formula or by rigid rules. Whether a comment or a warning is called for, and the terms of any comment or warning, will always depend upon the circumstances of the particular case.
In Tully the majority held that the circumstances were not such as to require a warning. However, the minority, in separate reasons, though requiring a warning, would not have had it contain the words “dangerous” or “unsafe”: Kirby J at [49]; Hayne J at [89]. I note that in the recent local case of R v Humble [2009] SASC 51 a warning which did not use the terms “dangerous”, “unsafe”, or indeed “warning”, was upheld by Kelly and Kourakis JJ in a joint judgment; although I acknowledge the relevant delay was not as long. Ultimately it is a question of what is required in the circumstances of the case as a whole.
For these reasons I do not consider that the absence of the words “dangerous” or “unsafe” or “warning” in the direction is necessarily a defect. It was for the trial judge to assess the perceived risk of miscarriage and to address it, within certain parameters, as he saw fit. While it is made clear in Doggett at [54] that the perceived strength of the prosecution case is not to be used as a basis for determining that no warning is required, it can be accepted that the nature of the evidence and the strength of it will have an impact on the way the warning is framed. For example, by way of comparison between this case and Longman, there the child was aged six and ten years at the time of the two charged incidents, each of which involved her being awakened from sleep by the appellant. No complaint was made for some 21 years after the second incident. There was no corroboration of the allegations. The appellant gave evidence on oath denying the allegations.
Importantly, in the present case, the judge instructed the jury that it was “necessary in cases like this to scrutinise” the complainants’ evidence. Further, he instructed the jury that it could “only convict on any particular count” if, having given the evidence “very careful scrutiny”, it was satisfied beyond reasonable doubt of the accused’s guilt. If the jury obeyed the judge’s directions – as is to be assumed – then, insofar as it convicted the accused, it did so having subjected the evidence to the particular scrutiny which the direction called for. I do not think that the jury would have done less than justice to these instructions simply because they were not accompanied by the words “warning”, “unsafe” or “dangerous”. Moreover, these directions were clearly underpinned by the weight of the judge’s office. They were instructions rather than comments. In speaking of the need for scrutiny arising “in cases like this”, the judge conveyed to the jury the court’s experience of the difficulties.
It is true that when directing on the forensic difficulties faced by the accused, the judge added reference to similar difficulties faced by the complainants. It is to be noted that this is not a case where the accused gave evidence pointing to any particular forensic difficulties he had encountered. Rather, on the case law, after such a long period of time since the incidents, such difficulties were to be assumed. But since such forensic difficulties were to be assumed based merely on the passage of time, then as a matter of logic, similar difficulties could be assumed to have faced the complainants. Although I acknowledge that it might have been better to have separated any reference to difficulties faced by the complainants from those directions about the way in which delay might disadvantage the accused, there was nothing misleading in what the judge said. And, the attribution to the complainants of the same forensic difficulty faced by the appellant, does not detract from the fact that reference was made to the appellant’s difficulties.
Counsel for the appellant further argued that the judge’s warning was not related adequately to the facts of the case. Again, what is necessary to meet this requirement is a matter of judgement to be exercised in the circumstances of the particular case. The trial before the jury on these charges occupied only three sitting days. The summing up was succinct. As I mentioned, the case for the appellant, consisting of probing of the prosecution case and the appellant’s recorded interview, was skilfully put. I do not consider that any more was needed in terms of relating the various directions upon the law given by the judge to the facts of the trial. Particularly where there is no evidence of any forensic difficulty faced by the accused, a judge must, in my view, be careful not to indulge in speculation as to the nature of the forensic difficulties which accrued.
In summary, although the warning given by the judge was not framed as strongly as has been seen to be appropriate in some of the surveyed cases, each case must turn on its own facts. I am not persuaded that the warning was less than adequate to avoid any risk of miscarriage of justice arising from the delay.
A separate complaint of error was made in relation to the judge’s direction arising from the appellant’s failure to give evidence. It was put that the direction given by the judge did not meet the requirements of Azzopardi v The Queen (2001) 205 CLR 50. There, in the majority judgment of Gaudron, Gummow, Kirby and Hayne JJ at [51] it was said that in cases where the accused did not give evidence it would:
… almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
The direction given by the trial judge in the present case was as follows:
That was the end of the Crown case. As you are aware, the accused elected not to give evidence in this court. He remained silent. He was not bound to give evidence. He has a right to decline to give evidence and because it is his legal right you must not draw any inference adverse to him or to the case his counsel puts forward from the exercise of that right. There may be reasons why he did not give evidence and you should not speculate on those reasons. Bear in mind always that it is for the prosecution to prove its case beyond reasonable doubt.
As can be seen, the specific matter present in the suggested direction of the majority in Azzopardi, but not finding its way into the judge’s direction, was the assertion that the accused’s silence did not amount to an admission by him and could not fill gaps in the prosecution evidence. In addition, Mr Peek argued that the jury also should have been told that no inference should be drawn from the accused’s failure to call other family members in front of whom some of the incidents were said to have occurred. As to that, reliance was placed on the judgment of Gaudron and Hayne JJ, forming part of the majority, in Dyers v The Queen (2002) 210 CLR 285 at [15].
In relation to these complaints I would make the following points. The direction set out above was beneficial to the appellant. Additionally, nothing was said which was incorrect or which placed him in a negative light. This was not a direction about other witnesses who might have been called by either side and did not pretend to be so. The reference at the end to the burden of proof was appropriate. I do not take the observations of the majority judgment in Azzopardi at [51] to dictate that in every case a trial judge must repeat the formula there given, although no doubt it would often be advantageous to do so. In this case, the appellant had put his version of events in answer to questions by police and a video recording of that interview was before the jury. In that context a direction to the jury that it “must not draw any inference adverse to him or to the case his counsel puts forward” was sufficient to warn the jury against any possible misuse of the fact of his silence. The trial judge could have, but did not, go on to note the impact of that silence, that is that the evidence of each complainant remained uncontradicted by evidence on oath. (I shall not repeat the observations I made in R v Collie (2005) 91 SASR 339 at [200]-[201] as to authorities on this point.)
I consider that no error in this regard is established.
Allied to these matters was a further complaint to the effect that the judge did not adequately put the defence case.
It is true that the judge did not, at any discrete point in his summing up, address the nature of the defence case. In other words, he did not encapsulate it and expand upon its various facets, including the appellant’s interview with police. What was done in terms of explaining the defence was done by means of the warnings to which I have already referred, by references to defence counsel’s cross-examination of the two critical witnesses and, in the final direction given to the jury, by summarising at some length defence counsel’s address to the jury. Indeed, I note that this summary occupied approximately one-eighth of the entire charge to the jury.
As Mr Peek acknowledged in the course of argument, in a case such as this it was hardly necessary to explain to the jury that the defence was that the crimes did not occur. That was entirely clear. Rather, senior counsel suggested that the particular deficiencies in the prosecution evidence needed to be highlighted. He referred to several relevant authorities. In R v Schmahl [1965] VR 745 a conviction was quashed by reason of the trial judge’s failure to explain to the jury the significance of certain “striking” (at 746) prior inconsistent statements made by the victims of the alleged false pretences charge. These inconsistencies occurred as between the evidence of the victims at the first and second trials of the appellant. They went to the nature of the false representations said to have been made by the appellant. The jury were not told how those inconsistencies might be used. In R v Wilkes & Briant [1965] VR 475 the jury was concerned with rape charges against both accused men. The critical issue was consent. The court held that it was necessary that the judge direct the jury “as to the manner in which the evidence could be applied to justify an inference that consent had been given or, at any rate, to raise a reasonable doubt as to lack of consent”. Reference was further made to R v Crnjanin [1965] QdR 324. There, on the prosecution case, a confession had been made. The accused claimed that he had been assaulted by police but that he did not confess. The trial judge was found (at 329) to have failed to explain to the jury how a doubt as to the police evidence in relation to the alleged assault might, notwithstanding the accused’s position, lead to doubt about the confession.
The lengths to which a judge must go in compliance with the duty to put the defence case will vary markedly, depending on the nature of the case, its length and the complexity of the issues. In essence, the judge must say enough to ensure that the jury is fully apprised of the challenges mounted to the prosecution case. In a case where the defence does not present evidence, the judge’s obligations may be shortly fulfilled and will involve ensuring that the jury understands the way in which issue is joined with the prosecution case: R v Von Einem (1985) 38 SASR 207, 216; Domican v The Queen (1992) 173 CLR 555, 567; R v Whittingham (1988) 49 SASR 67, 69-70; R v B,P [2006] SASC 229, [36]-[41].
In many cases I think it is preferable for the judge to state the substance of the defence case in a distinct part of the summing up. However, whether something other than that is adequate turns on the facts of the case under consideration. In this trial, where the issues were stark, where the defence amounted to an argument that the prosecution had not proved its case and where the deficiencies in the prosecution evidence were both the focus of the case and the subject of a clear warning by the judge, it seems to me that the approach of the trial judge was adequate.
Having dealt with the various complaints arising from the summing up, I return, briefly, to the Longman warning. I have expressed the view that although the warning did not use the words “warning”, “dangerous”, or “unsafe”, it met the essential requirements the rule referred to in Longman and the circumstances of the case. Nevertheless, I acknowledge that the delay in this case was a long one. I have also referred to the undesirable intermingling of references to the forensic difficulty faced by the appellant with similar difficulties faced by the complainants. It is instructive (although not, on my findings, essential) to examine the impact of any perceived deficit in the terms in which the Longman warning was given.
At common law, trial judges were required to warn juries of the danger of acting upon the uncorroborated evidence of sexual victims, young children and accomplices. These requirements were seen as rules of practice: J D Heydon, Cross on Evidence (7th Aust ed, LexisNexis, Butterworths, 2004) [15070]. In Longman at 85, Brennan, Dawson and Toohey JJ described the rule relating to victims in sexual offences (now abolished) as having “not quite harden[ed] into a rule of law in Australia”. The categorisation of such a rule has significance in terms of what flows from a failure to comply with it. That is a function of the statutory provision governing appeals. Non-compliance with a requirement of law will result in the conviction being quashed unless the proviso can be applied: Archbold’s Criminal Pleading, Evidence and Practice in Criminal Cases (40th ed, Sweet & Maxwell, London, 1979) [917]. But errors of fact, or non-compliance with a rule of practice must be shown to have led to a miscarriage of justice before it is necessary to consider the proviso: Bishop J, Criminal Procedure (2nd ed, Butterworths, Sydney, 1998) at 575-6. I set out the provision of the Criminal Law Consolidation Act 1935:
353—Determination of appeals in ordinary cases
(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In R v Schlaefer (1984) 37 SASR 207 at 213-4, King CJ referred to one part of the dichotomy I have described in the context of the trial judge having failed to warn against impermissible use of evidence and having failed to give a corroboration warning in respect of evidence given by the female complainant’s young brother. King CJ said:
Neither non-direction amounted to non-compliance with a legal imperative, but was rather an omission to apply a sound and recognized rule of practice. The appeal can only succeed on those grounds if the non-directions have produced a miscarriage of justice in the sense that they have deprived the appellant of a chance of acquittal which was fairly open to him.
In R v Tedesco (2003) 85 SASR 66 at 74, Doyle CJ, with whom Duggan and Gray JJ agreed, referred to this passage with approval.
I acknowledge the force of the observation of Andrew Ligertwood, Australian Evidence (4th ed, LexisNexis, Butterworths, 2004) at 4.18 to the effect that some appellate courts have not strictly applied the distinction of which I speak. Mr Ligertwood suggests that some courts have “fudge[d] the issue”.
Whether what is referred to as the Longman warning has, in the twenty or so years since it was decided, assumed the force of a new rule of law, as contended by Mr Peek, is at best arguable. The rule requiring corroboration in relation to sexual victims was of much greater longevity, but, as seen, remained a rule of practice. It applied to categories of witnesses. Inasmuch as the nature of the warning found to be required in Longman must respond to the particular circumstances of the case at hand, it is hard to see that it could be considered to be either a rule of law or a rule of practice. Rather, Longman is really an example of the application to particular facts of the underlying requirement, of longstanding, that a judge must give such warnings as are necessary to avoid any perceptible risk of a miscarriage of justice. Indeed, Cross on Evidence refers, at [15160], to the judge’s decision as to giving a warning as “approach[ing] a true discretion”.
In Longman itself the result of a judge failing to give a required warning was specifically addressed in the plurality judgment at 89. It was said that a refusal to give a warning required by the general law would leave a conviction “liable to be quashed as unsafe and unsatisfactory if it is held that the refusal to warn left a perceptible risk of miscarriage of justice”. In separate reasons, Deane J at 102 and McHugh J at 109 allowed the appeal on the basis that the convictions were unsafe and unsatisfactory. This approach suggests that the judges did not consider they were creating a new rule of law or practice. I acknowledge that, in the 20 years since this decision, approaches to this issue have varied. But in Doggett, decided in 2006, at 357, Gaudron and Callinan JJ, forming part of the majority, also observed that once the view was formed that the judge had erred in not having given a warning, then what was required was “a broad assessment of the evidence overall” to decide “whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied”. In Tully, Crennan J, with whom Heydon J agreed on this issue, stated the relevant question in the same way: at 283. This echoes the approach in Longman.
There are a number of authoritative statements to the effect that the requirement to warn has assumed the status of a rule of practice: Christophers v R (2000) 23 WAR 106 per Owen J (with whom Pidgeon and Ipp JJ agreed) at 117; Crisatio v R (2003) 27 WAR 169 per Murray J, Malcolm CJ and Parker J agreeing. In addition it has been implicitly accepted elsewhere, for example, JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187, 207-209 per Kirby J, Spiegelman CJ and Howie J agreeing.
Nevertheless, in my view there is a strong argument that even if, contrary to my opinion, a warning in stronger terms was required, that could only lead to the setting aside of a conviction if the appellant satisfied the court that such deficit led to an unreasonable, in the sense of an unsafe, verdict, or otherwise caused a miscarriage of justice. In other words, I would not classify the complaints raised in this case, even if made good, as necessitating, in the first instance, a consideration of the proviso. That step would not be needed unless a miscarriage of justice was established. As I have indicated, I do not consider that any deficiencies in the directions could have led to a miscarriage of justice. Nor do I consider that, by reason of the failure to warn in stronger terms, the verdicts were unsafe.
Ground 3 – argument that the verdicts were unreasonable and unsatisfactory
In support of this ground, reference was made to the suggested errors, misdirections and non-directions already the subject of discussion. Additionally, the acquittal of the appellant on count 2 was said to be inconsistent with the convictions on counts 1 and 3. Again, senior counsel emphasised the staleness of the allegations and the forensic difficulties faced by the appellant in refuting the allegations.
I turn first to the suggestion that the verdicts in relation to A were inconsistent.
The acquittal on count 2 was readily referable to prior inconsistent statements, the significance of which were graphically illustrated in cross-examination. In [72] of these reasons I set out the essence of A’s allegations as to how count 2 arose. In cross-examination she was forced to acknowledge that in a document written some time ago in her own hand, she had given a version of this incident which was “significantly different” from her evidence. She agreed that in the writing, far from the appellant being in the computer room and beckoning her in when she was passing, she had described her grandmother giving the appellant a cup of tea in the dining room, which he took, along with A, to the computer. A’s explanation was that she “probably didn’t really know how [she] got into the room at first, just started writing”. I think that in these circumstances the verdict on count 2 can be read as the jury entertaining a doubt as to the accuracy of her memory of the incident, without that doubt affecting their view of her truthfulness, or her reliability as to the other counts.
As seems to be the practice in these cases, what is referred to as a “separate consideration” direction was given. Then, late in the summing up the judge returned to that topic. The jury were told to consider each count separately in light of the directions of law that had been given to it. Particularly in these circumstances, I cannot think that the acquittal on count 2 is suggestive of any relevant inconsistency.
I have already observed that in giving certain directions which favoured the accused, the judge was less expansive and emphatic than what was required in, for example, Longman. Particular reliance was placed on the terms of the direction about the long delay between the alleged offences and complaint. With these matters in mind, I have closely read the entire transcript of the trial. The evidence of both complainants is compelling. Some passages of their evidence appear to me as having the hallmark of truth. I instance the observations of both witnesses as to constancy of the unwanted attention they received from the appellant, as well as A’s feelings about experiencing her first orgasm at the hand of her grandfather. I refer also to the feelings A related about the appellant’s visit to the family when she had turned 15 years, after they had moved interstate. Notably, she described an intense reaction after her grandfather had left for his home, the details of which I shall not relate. Added to that is the fact that each witness supported the other, not insofar as they described any single incident, but rather in the fact that they each observed touchings by the appellant of her sister. As I said, I formed the same impression of B’s evidence. Here I make particular reference to the reasons she gave for not being frank with the elders when asked about her grandfather’s conduct. She said she did not trust them. When asked why that was she said:
Because they were in my grandfather’s congregation, they were his elders, and also because the first thing that Carlos Olivier told me when he came in – that’s one of them – he said that his children absolutely loved [the appellant] and they loved being with him. And when I heard that I just didn’t trust them.
Had she been concocting the allegations, it would be difficult to imagine her producing this explanation.
Having considered the evidence and the summing up in light of the criticisms made by senior counsel of it, I am left with no misgivings as to the verdicts.
Conclusion
I would dismiss the appeal.
ANDERSON J. I would dismiss this appeal for the reasons given by Vanstone J.
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