R v JMV

[2001] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 190 of 2001

THE QUEEN

v.

"J.M.V."

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JUDGES:	WINNEKE, P., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 December 2001
DATE OF JUDGMENT:	3 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 219

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Criminal law - "Old" sexual assaults - Verdict "unsafe" - Applicant convicted (by majority) on one of 29 counts of sexual offences against two daughters - Count upon which conviction recorded occurring 30 years before trial - Verdict quashed on grounds that it was "unsafe".
Judge's report to Court - Concern that "miscarriage of justice had occurred" - Court's attitude to judge's report discussed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr S.W. Kaye, Q.C. and Mr D.F. Cosgriff	Victoria Legal Aid

WINNEKE, P.:

1. This is an application by “JMV” for leave to appeal against his conviction on one of a large number of counts of what might be termed "old" sexual assaults against two of his daughters.  The presentment contained 29 counts of such assaults by the applicant upon the two daughters (whom I shall refer to as "M" and "J").  The applicant, who is now 71 years of age and in poor health, lived for most of his married life with his wife and seven children at their matrimonial home.  The applicant has no prior convictions and is a man of otherwise good character. 

1. The two complainants were, respectively, the eldest and the youngest daughters in the family. At the time of trial they were aged 44 years and 30 years. Each said that over a period of their lives when they were between the ages of approximately 12 and 18, the applicant had on a number of occasions indecently assaulted them and introduced his penis into their anus or vagina in various bedrooms of the matrimonial home. The judge permitted all the counts to go before the jury in their unsevered form, no doubt in compliance with s.372(3AA) and (3AB) of the Crimes Act 1958. (See R. v. K.R.A.[1])  As I have said, the offences were "old" in the sense that those alleged to have been committed upon "M" occurred between 24 and 30 years prior to trial and those alleged to have been committed upon "J" between 12 and 18 years prior to trial.  The judge warned the jury to act with caution before acting upon the evidence of either complainant, and, as it would seem to me, he had good reasons for doing so:  firstly, the very age of the offences themselves;  secondly, the lack of any recent complaint;  thirdly, the fact that each complainant claimed to have recovered what might be described as a "suppressed" memory of the allegations at or about the same time, namely, September 1999, and in circumstances suggesting innocent infection, namely, after speaking with one another at a time when the applicant and his wife were in the course of separation and the family were apparently "taking sides".  Fourthly, there was good reason, as his Honour warned the jury, for them to concern themselves about the provenance and reliability of the relevant evidence.

   [1][1999] 2 V.R. 708 at 715.

1. "M" said that her memory had been "unchained" by factors which had occurred during her marriage, which, by the time of trial, had lasted for some 24 years.  These factors, so "M" said, had occasionally prompted "flashbacks" which seemed to her to be "unreal" at the time.  Those prompting factors included attending a party of an old boyfriend with whom she claimed to have engaged in anal sex;  also the manner in which she and her husband occasionally engaged in sexual intercourse in circumstances which also prompted these "flashbacks", and finally an incident at the school where she taught in which one of the students had produced a rude joke to her which also had prompted, because of its content, a "flash" of memory.  She claimed to have, over a relatively lengthy period of time, informed her husband during the marriage of being sodomised by her father.  When called, however, her husband denied that and said that the first he had heard of it was after the meeting between family members in September 1999.  The evidence of "J" in a sense was even stranger than that of "M".  She also had made no complaint until September 1999.  When told in that month by "M" that she ("M") was having "flashbacks" of having been sexually assaulted by the applicant, "J" had at first said that it had not happened to her, but it was not long before she too was having the same, or similar, "flashbacks".

1. The applicant had, when interviewed by the police, vehemently denied the allegations of each of the daughters. 

1. In those circumstances it was not entirely surprising that, confronted with this evidence and the strong warnings and instructions issued by the judge, the jury informed his Honour, after deliberating for a considerable period, that they were having difficulty coming to any conclusion.  His Honour gave them what has sometimes been called a "Black" direction[2] and, after the requisite period of time, a direction that they were entitled to return a majority verdict.  Ultimately the jury did return a verdict, by majority, of guilty on count 1, the oldest of the offences, but informed his Honour that they could not agree on any other count on the presentment.  Accordingly the judge accepted the verdict on count 1 and discharged the jury on the remaining counts.

   [2]Black v. R. (1993) 179 C.L.R. 44 at 51-2.

1. It is, as is well known, the practice of this Court to call for a report from the trial judge in respect of those matters which come to this Court upon application for leave to appeal.  In this case the judge has reported to us, by a letter dated 9 August 2001, in the following terms (in so far as relevant):

"I was surprised at the verdict, bearing in mind the whole of the evidence, and I am concerned that a grave injustice may have occurred."

Of course, this Court, as it has frequently said, is not bound by reports to it of trial judges, but, none the less, it calls for such reports for the purposes of having revealed to it matters which may in the circumstances have been relevant to the trial judge, familiar with the atmosphere at the trial, and not as easily discernible from the transcript of material before this Court.  (See R. v. Franks (No.2)[3]).  The report in this case, as it seems to me, is a factor which we would do well to take into account in disposing of this application.

[3](1999) 105 A.Crim.R. 377 at 387-8.

1. Further evidence was ultimately taken by his Honour on the plea, and ultimately, on 24 July 2001, his Honour sentenced the applicant to three years' imprisonment and fixed a minimum term of 15 months.  The applicant has now served some 4½ months of that sentence.  In the course of his sentencing remarks his Honour made statements to the following effect:  firstly, that the offence of which the jury convicted was 31 years old;  secondly, that "M" had no memory of it apart from the infrequent "flashbacks" to which I have already referred until September 1999.  In the meantime, as his Honour noted, "M" had completed secondary and tertiary education and had happily married and had raised a family herself.  Thirdly, his Honour did not accept as correct the assertions which had been made by "M" that the applicant was frequently and excessively violent.  As he said, the evidence from the applicant's former wife clearly showed that the applicant was not such a man.  Indeed, as the judge said, the complainant "J", like most of the other children, continued to reside in the family home whilst they were completing their tertiary education;  furthermore, "J" had continued to live in the home for 12 months after she was married to her present husband.  His Honour said that "one might think that this conduct was hardly consistent with her later complaints".  It was conceded by the applicant in his record of interview that he had been "strict" with discipline and that such was a product of his own upbringing.

1. This application is founded solely upon the ground that the majority verdict of guilty on count 1 is unsafe and ought to be quashed.  In my view, it should be.  It is difficult to perceive from the transcript why the offence charged in count 1 on the presentment was any safer as a vehicle for conviction than any other count on the presentment.  It was the oldest of all the counts.  Like all the other counts alleged by "M", it was the product of a memory revived, and some 30 years after the event.  "M" claimed that it was an event which her mother was watching from outside the bedroom window:  indeed, according to "M", the image of her mother standing there "with her mouth open" was a vivid one.  Her mother in evidence denied knowledge of any such event.  The event was said to have been accompanied by the use of excessive force and a belting with a leather strap, with which "M"'s hands were said to be tied behind her back.  Despite the somewhat bizarre and sadistic nature of the description of the attack, these events were the product, nevertheless, of "flashback" which appears to have come late in the piece.  "M" in fact had made three statements to the police over a period of eight months following September 1999.  It was not until the third statement that she recalled her mother "witnessing" the assault alleged in count 1.  It appears that that addition to this event had been prompted by a statement made by her brother Gary saying words to the effect that his mother, he thought, may have witnessed one of the events.  It would seem that this statement prompted the recall, yet it also appeared that "M" had never approached her mother for the purpose of determining its accuracy.  The nature of "M"'s description of the events does indeed have an air of the "surreal" about it:  what she initially said she thought was fantasy.  Her description is, in essence, in somewhat of a vacuum in this sense:  she was unable to say what provoked the behaviour or what happened after it had concluded.  Although, as I have said, she claimed to have told her husband about those "flashbacks", he did not support her evidence in this regard.  That would certainly appear to be the case because the evidence otherwise revealed that "M" and her husband, who lived in the country, would leave their own children with the applicant and his wife when they came to town.  There seems to have been no independent evidence which supported "M"'s evidence of the assault alleged in count 1, or at least no evidence which supported it above and beyond any other count.  The judge told the jury that the only evidence which was capable of supporting the evidence of "M" was the evidence of the applicant's son John, who said that in a telephone conversation shortly after his parents' separation he had said to the applicant words to the effect that, "The family will never forgive you for raping "M"", to which he alleged his father had replied with words to the effect that, "If I have done that, it is because of my upbringing".  Quite apart from the fact that this material had no greater bearing on or support for the offence charged in count 1 than it had in respect of the other 15 counts involving "M", it was evidence which itself was pregnant with uncertainty and unreliability.  The applicant in his record of interview said that the conversation was about his attitude towards discipline, and particularly about "strapping", not raping.  Furthermore, there was strong evidence to suggest that this phone call occurred some time before the allegations of rape had emerged.

1. The respondent has sought to argue that the jury could have found support for the offence alleged in count 1 in the evidence given by family members of a "change in personality" in "M" at a time said to relate to the events constituting count 1.  Quite apart from the fact that I agree with his Honour that this "personality change", even if accepted, could not support or corroborate "M"'s evidence in any relevant sense, the evidence itself was indeterminate as to when that change occurred in relation to the events charged in count 1, which, on its own statement of the offence, could have occurred within any part of the period covering some 18 months.

1. Generally for the reasons given, this is one of those rare cases in which, in my opinion, the verdict returned on count 1 by a majority is unsafe, in the sense that the evidence was of such a nature and quality that the jury, acting reasonably and paying full attention to the directions given to them by the judge, could not properly have convicted on that count.  It is not a case where the Court could draw any comfort from the failure of the applicant to give evidence himself.  Indeed, for the reasons which the judge gave to the jury, this was the very sort of case where the applicant was entitled, in my opinion, to rely upon the denials which he had made in his record of interview and to insist upon the prosecution proving its case.

1. In the circumstances I would allow the application for leave to appeal against the conviction recorded on count 1 and quash the conviction.  In my view a verdict of acquittal ought to be entered in respect of that count.

BROOKING, J.A.: 

1. I agree.

BUCHANAN, J.A.: 

1. I also agree.

WINNEKE, P.: 

1. The formal order of the Court will be that the application for leave to appeal against conviction is allowed.  The appeal is treated as having been instituted and heard instanter, and it too is allowed.  The verdict of the jury recorded against the applicant on count 1 of the presentment is quashed.  In lieu thereof the Court orders that a verdict of acquittal be entered in respect of that count.