R v N J B
[2004] VSCA 168
•15 September 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 24 of 2003
| THE QUEEN |
| v. |
| N.J.B |
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JUDGES: | ORMISTON, VINCENT and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 September 2004 | |
DATE OF JUDGMENT: | 15 September 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 168 | |
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CRIMINAL LAW – Sexual offences – Evidence – Longman warning – Need to refer to lack of confirmatory evidence and all other relevant factors.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G.J. Lyon | Victoria Legal Aid |
ORMISTON, J.A.:
The applicant seeks leave to appeal against both conviction and sentence arising out of his conviction on 30 January 2003 on seven counts alleging various sexual offences by him on his stepdaughter between the years 1964 and 1968 approximately. Because the offences were alleged to have been committed in that period the counts described offences expressed in terms of the unamended provisions of the Crimes Act 1958 ("the Act"). So the applicant was convicted on three counts of indecent assault of a girl (under s.55 of the Act), on one count of gross indecency in the presence of a girl under the age of 16 years (under s.69(1)(a) of the Act), on two counts of buggery with a person under the age of 14 years (under s.68(1) of the Act) and on one count of unlawful carnal knowledge of a girl under the age of 10 years (under s.46 of the Act). On the counts of indecent assault the applicant was sentenced to terms of imprisonment varying from 18 to 36 months, on the count of gross indecency to two years' imprisonment, on each of the counts of buggery to six years' imprisonment and on the count of carnal knowledge to five years' imprisonment. Various orders for cumulation resulted in a total effective sentence of 12 years' imprisonment and the learned judge ordered that 9½ years be served before the applicant became eligible for parole. A declaration was made that he was sentenced as a serious sexual offender.
The applicant's notice of application relating to conviction contained three grounds but only two were argued before the Court. In the first place it was contended that in view of a number of factors including the delay between the time the offences were committed and the time of complaint and the psychiatric condition of the victim the trial judge failed to give an appropriate warning that it would be dangerous to convict the applicant. The second ground argued (ground 3) complained in substance that the judge wrongly failed to rule that there should be excluded from evidence certain parts of the applicant's record of interview relating to "matters not supported by evidence". On the application for leave to appeal against sentence five grounds were reduced to four on the hearing that were all subsumed in an argument that the sentences were manifestly excessive and that they failed to give due weight to the principles of proportionality and totality.
For reasons which will become apparent it is unnecessary to set out in detail the matters alleged against the applicant which, if accepted, would paint a very unhappy picture of consistently vicious and depraved conduct on the part of the applicant towards his stepdaughter in the 1960's. The applicant had married the mother of the victim barely a month after the victim was born on 10 August 1957. The first of the offences alleged against him was said to have taken place when the victim was only seven years old. It is sufficient to say that she alleged that she was forced to suffer sexual abuse by her stepfather in a variety of forms to the time when she was about 10 or 11. There were a number of indecent assaults but, so she said, his conduct escalated by the time she was eight to forcible anal intercourse and, not long afterwards, to one partially successful but painful act of vaginal intercourse. It is unnecessary to catalogue the various sexual assaults which continued over several years, except to demonstrate the depth of his alleged depravity by mentioning that on one occasion, so she alleged, the applicant forced a neighbour's dog to have intercourse with her. She said she was greatly affected by these events such that she was unable to mention what she had suffered to anyone for many, many years and in fact only reported the matters in about the year 1999 over 30 years after the last of the alleged offences. She conceded that she had suffered from some form of bipolar disorder for much of the time, ascribing that to the applicant's treatment of her, and she also conceded that she had been regularly taking a large variety of drugs to ameliorate her condition. Her uncertain recollection may be seen from the fact that, of the ten counts on the presentment, three were the subject of directed verdicts of not guilty because of her inability to recount the details in court to the jury. After the long delay, there was, not surprisingly, an absence of any evidence which could support or confirm her account. The only evidence for the prosecution apart from that of the victim was evidence of a record of interview in which there were no admissions as to the commission of the alleged offences but only some broad concessions as to the general relationship between the parties. The applicant elected to give evidence but again that consisted entirely of denials and there was nothing in cross-examination which could be considered as confirmation of any disputed part of the victim's account.
The trial was consequently very short. The judge's charge was also admirably short, attempting to concentrate on the real issues raised at the trial. If there were omissions of evidence or argument they might be fairly attributed to the fact that the whole of the trial took barely two days. During the trial there was a ruling as to certain questions in the record of interview which had produced a relevant response from the applicant, although none of a kind which could be described as admissions or partial admissions of the offences charged. The principal issue on this appeal, however, related to the manner in which the judge gave what has come to be called a Longman warning to the jury about the effect of delay and the like on the evidence given at the trial. It is not necessary to set out the whole of the charge on this question but some description should be attempted. The judge first described what he had to say as being "some rules of law that apply to this particular case, by reason of its nature". He then referred to the "age of these charges", that they were extremely old but that there was no time limit imposed by law for bringing them. He then said that the age of the allegations was relevant in two ways. He first said that delay was relevant "because of its effect on witnesses" and that it increased "the risk of error and distortion". He said it was not for him to determine, "but the very fact that a long period of time has passed magnifies the difficulty of the witnesses". The principal warning then followed in these terms:
"It follows, therefore, that you should scrutinise very carefully [scil. 'the evidence'?] and being conscious of the time that it has taken for these allegations to be ventilated in court. In accordance with that careful scrutiny, I warn you that it is dangerous to convict in respect of charges that are as old as this."
He then turned to a second factor arising out of the age of the charges. His Honour said that "the passage of years has meant that the accused has lost the means that he might have had, had the allegations been made a long time ago, of testing the evidence that has been advanced against him". He observed that that might have helped the applicant to determine his presence at home at particular times or enabled "the calling of witnesses or whatever it might have been". He reiterated that it was not possible to be specific about the ways in which the applicant had been disadvantaged by the passage of time but it was "possible to assert with confidence, that the defence of cases of this character, indeed perhaps of any character, is magnified with a degree of difficulty associated with defending cases of this character [scil. "and"?] is magnified by the passage of time" [sic]. He then repeated that, when scrutinising the evidence, as the law required them to do with care, "you will bear in mind the significant passage of time since it is said that these events occurred and … the level of difficulty you have in determining what … are the true facts." That is all that he said on that subject and the learned judge did not give any direction relating to the unreliability of the evidence of the victim arising out of her bipolar and other possible psychiatric disorders or arising out of her taking of drugs. A specific request for a direction to that effect was refused, as was a request made in the course of exceptions that the judge should point out, as part of the warning, that the evidence was uncorroborated. (It should be noted that the charge as I have recounted was unrevised and that might explain some of the apparent errors in it.)
It is that latter omission which, in particular, counsel now put at the forefront of his argument on this application. He contends that the failure to observe that, in the absence of supporting or confirmatory evidence (as was here the case), it would have been dangerous to convict on that evidence alone (and he emphasised the word "alone"). Moreover the judge should have identified to the jury, before or as part of the warning, the particular features of the case that ought to be considered by the jury before accepting the victim's version of events.
To my way of thinking and without embarking on a detailed analysis of Longman v. The Queen[1] and the many cases which have sought to follow and apply it, the charge here was inadequate to bring home to the jury the several factors which ought to have been brought to their attention and carefully weighed by them before they convicted the applicant. The charge (on this issue) was too brief, it was badly organised and at the end (as may be seen from the final passages quoted) it lost a great deal of the emphasis which was required in the circumstances.
[1](1989) 168 C.L.R. 79.
An appropriate warning was clearly required in the present case because, as in Longman and in some (but by no means all) of the later cases, there was a truly lengthy period (over 30 years) which had expired from the time the offences were said to have been committed, not only to the time of trial, but also, and more importantly, to the time the victim first reported and sought to recall in detail these events. The danger of accepting versions of events so many years later is obvious to judges but not necessarily to juries. To this may be added the following factors in the present case. The victim was comparatively young and impressionable at the time, in the sense which McHugh, J. described in Longman[2]. Not only that but this witness, by her own admission, had suffered for some time from some form of psychiatric disorder, bi-polar disorder so she believed, on and off over many years and had taken countless drugs for her condition. Although those matters did not (on the evidence) make her necessarily an "unreliable" witness in terms of the authorities, it was a factor here to be mentioned to the jury for this purpose. Moreover the factors in fact mentioned by the judge required somewhat more precise explanation to the jury, for one of the reasons for the warning is the difficulties defendants face in answering charges made against them many years later and, in particular, in seeking to recall events and relate events many years afterwards and in tracing witnesses and materials likely to assist them in defending the charges, if that be possible. For example, the death of a particular potential witness in this case who was said to be party to one offence may have been very significant, but the jury should also have been told (since it was not and could not have been the subject of evidence) that the memories of potential witnesses may have been even worse than that of the accused (or of the alleged victim).
[2]At 107-108.
The judge resisted further charging the jury on the basis that corroboration was not strictly relevant to the reason for the warning. It may not necessarily be the reason for it (although I would not wish to examine that on this occasion), but the absence of confirmatory or other evidence serves to emphasise the problems. The standard warning contains the word "alone", as may be seen from Longman, and it was later confirmed in Crampton v. The Queen[3] and in so many decisions of this Court such as Robertson[4], Jolly[5] and others, whatever may be thought in other jurisdictions. Stating the obvious, that in the absence of confirmatory or supporting evidence the jury will have to be told that it will be dangerous to convict on the evidence of the victim alone, merely serves to emphasise the stark decision facing the jury; that is, that they must be satisfied beyond reasonable doubt that the victim's version is in fact correct if they are to convict. Sometimes there is potential confirmatory evidence, sometimes there is not, but I am not prepared to conclude that what has come to be accepted as the appropriate form of warning should now be discarded. Moreover in the present case there was good reason to refer to the absence of confirmatory or supporting evidence, not because there was such evidence, but because there was not, and that should have been made clear. In this particular case there was other evidence called in the form of the record of interview. It formed a very small part of the Crown case and it came to be even more insignificant. However, it suffered from a particular vice, raised in another way under ground 3, but arising from the form of the questions. In short, the investigating officers sought to put part of the victim's case to the applicant by way of questions consistent with the evidence but in greater detail than was given at the trial. It was possible that the jury, notwithstanding other appropriate directions as were in fact given to them, may have seen the questions or the limited answers as in some way supporting the Crown case. It was vital, therefore, that the jury be disabused of any notion that the questions and answers provided some form of confirmation. The conventional charge would have been a suitable means of dealing with that issue, by the judge saying emphatically at that stage that they did not provide corroboration or
confirmatory material of the relevant kind for the purpose of the warning.
[3](2000) 206 C.L.R. 161.
[4][1998] 4 V.R. 30.
[5][1998] 4 V.R. 495.
Finally, the order in which the warning was given here may have caused confusion and lessened its briefly stated effect. It came after the first group of factors arising from delay mentioned by the judge, but not after the second ground, which related to the accused's difficulties in obtaining evidence and the like. The warning should either have come after the list of potential factors affecting this kind of evidence, or should have been repeated after dealing with the applicant's particular problems in conducting his defence. What I have said is not to suggest that there are precise words which have to be used in the case of every charge containing a Longman direction, but they should contain the warning and it should be appropriate to each case depending on the factors which have arisen.
The first ground is made out, for the applicant has clearly lost an opportunity of acquittal by reason of the defective charge.
As to ground 3, I believe I have said sufficient to show the difficulties these particular questions and answers caused. Whether or not it would have formed a separate basis for allowing the appeal is no longer significant. More importantly, counsel for the Crown, very properly in my opinion, conceded that those questions and answers should not be led on any new trial.
In my opinion, the application should be granted, the appeal allowed and the verdicts and convictions set aside, and there should be an order for a new trial.
VINCENT, J.A.:
I agree and I do so for the reasons advanced by the learned presiding judge.
NETTLE, J.A.:
I also agree for the reasons advanced by the learned presiding judge.
ORMISTON, J.A.:
The order of the Court therefore will be:
1. That the application for leave to appeal against conviction be granted.
2. That the appeal be treated as instituted and heard instanter.
3. That the appeal be allowed.
4.That the verdicts and convictions upon the applicant in the court below be set aside,
5.It is directed that there be a new trial on the relevant seven counts.
A certificate in the usual form will be granted to the applicant.
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