R v NRC - [1999] VSCA 184

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 71 of 1999

THE QUEEN
V
N.R.C.

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JUDGES: WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD: SHEPPARTON
DATES OF HEARING: 17 and 18 August 1999
DATE OF JUDGMENT: 19 November 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 184

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Criminal law – Sexual offences committed against very young child – Evidence-in-chief
of child given in accordance with “V.A.T.E.” procedure – Inability, because of young
age, to test complainant’s version in cross-examination – Circumstances in which judge
required to give warning to avoid miscarriage of justice discussed.
Evidence of young children – Suggested “contamination” by inappropriate methods of
obtaining statement of young child – Role played by experts in respect of such evidence
discussed.
Evidence Act 1958, ss.23,37B,37C.

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APPEARANCES: Counsel Solicitors
For the Crown Mr. J.D. McArdle, Q.C. P.C. Wood, Solicitor for
Public Prosecutions
For the Applicant Mr. P.F. Tehan, Q.C. Kerry R. Clancy

WINNEKE, P.:

On 22 March 1999 the applicant was convicted in the County Court at Shepparton of sexually assaulting his daughter L.C. (whom I shall call “the complainant”) on 6 August 1996. At the time of the assault the complainant was a girl of tender years, having turned five in July of that year.
There were four counts on the presentment upon which the applicant was arraigned. Count 1 alleged an indecent act (namely masturbation) committed in the presence of the complainant contrary to s.47 of the Crimes Act 1958 (Vic); count 2 alleged an act of incest (digital penetration of the vagina) contrary to s.44 of the Crimes Act; count 3 alleged an act of intentionally causing injury (by beating the complainant around the ears) contrary to s.18 of the Crimes Act; and count 4, which alleged a threat to kill the complainant (by holding a knife to her neck and threatening to “cut her neck off” if she complained) contrary to s.20 of the Crimes Act.
On 30 March 1999 the trial judge sentenced the applicant as follows:

Count 1 : 12 months’ imprisonment, 4 months of which was ordered to be served cumulatively upon the sentence imposed on count 2.
Count 2 : 4 years’ imprisonment.
Count 3 : 6 months’ imprisonment.
Count 4 : 9 months’ imprisonment, 3 months of which was ordered to be served cumulatively upon the sentence imposed on count 2.

The total effective sentence was, accordingly, one of 4 years 7 months’ imprisonment. The learned judge directed the applicant to serve 3 years before becoming eligible for parole.

The applicant has applied for leave to appeal against the convictions recorded. Although grounds 1, 2 and 3 attacked the trial judge’s ruling to admit the evidence of the complainant, Mr. Tehan, who appeared for the applicant in this Court, abandoned those grounds in favour of arguing the fourth ground; namely that the convictions were unsafe and unsatisfactory. He also directed argument to the Court in support of a fifth ground, added by leave of the Registrar on 10 August 1999, namely:

“5.
The learned trial judge erred by directing the jury that
statements made by her concerning the potential for error in the case
were only judicial comments.”

Upon the hearing of the appeal counsel sought leave to add two additional grounds which contended that:
(a) the trial judge was in error in telling the jury that she was satisfied that the complainant understood the significance of telling the truth;
(b) the trial judge erred in failing to direct the jury that, in assessing the complainant’s credibility, they were entitled to take account of the fact that she had delayed in making a complaint about the applicant’s conduct.

Mr. McArdle, who appeared for the Crown on this application, objected to the late addition of these grounds and the Court, whilst allowing Mr. Tehan to present argument in respect of them, reserved its decision on the question of whether leave should be granted. For my own part, I would not be prepared to grant the leave sought because, if there is no substance in the two grounds argued, there is insufficient in the proposed amended grounds to warrant the grant of leave. In my opinion the Court should set its face against late applications to amend grounds unless it is of the opinion that to refuse the amendment will occasion the risk of miscarriage of justice. For the reasons stated, I am not of that opinion.

The evidence-in-chief of the complainant in this case was given by way of a pre-recorded audio-visual tape recording, which was referred to in the proceedings as a “V.A.T.E. tape”. This somewhat unusual procedure is provided for by recent legislative amendments to the Evidence Act 1958. Section 37B of that Act provides (insofar as relevant):

“(1) This section applies to a legal proceeding … that relates (wholly
or partly) to a charge for –

(a) a sexual offence; or

(b)

an indictable offence which involves an assault on, or injury or a threat of injury to, a person.

(2) The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with impaired mental functioning or is under the age of 18.
(3) Subject to sub-section (4), the recording is admissible in evidence in the proceeding as if its contents were the direct testimony of the witness if –

(a) …
(b) …
(c) at the proceeding the witness –
(i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and
(ii) is available for cross-examination and re- examination.

(4) The Court may rule as inadmissible the whole or any part of the
contents of a recording.”

The Evidence (Recorded Evidence) Regulations 1994 prescribe (inter alia) that:

“5. For the purposes of s.37B of the [Evidence] Act, a person who –
(a) is a member of the police force; and
(b) has successfully completed a training course conducted by the Victoria Police on the procedure for making recordings –

is prescribed.”

These provisions form part of a number of statutory procedures which have been introduced in recent years into the law of this State which have as their primary purpose the reduction of stress imposed upon victims of sexual offences by the rigours of curial proceedings. Thus ss.32B ff. of the Evidence Act exclude evidence of confidential communications which have taken place between such victims and various professionals. Section 37A of the Evidence Act precludes cross-examination, without leave, of complainants in sexual offences on matters going to general reputation in respect of chastity. Section 37C of the same Act provides that the Court may permit alleged victims of sexual offences to give their evidence against alleged offenders by means of closed-circuit television in places remote from the court-room. Furthermore s.23 of the Evidence Act allows the evidence of persons under the age of 14 to give their evidence otherwise than under oath if the court is of the opinion that the witness does not understand the nature of an oath but is also of the opinion that he or she understands the duty of speaking the truth and “is capable of responding rationally to questions about the facts in issue”. In respect of such a person the judge, by virtue of s.23 (2A), is enjoined from warning the jury, or suggesting to them in any way, that “the law regards … children as an unreliable class of witness”.
Each of these provisions, in pursuit of laudable objectives, marks a significant departure from the practice and procedure in accordance with which persons charged with serious crimes have customarily been tried. Each has the capacity to impact upon the fair trial of an accused person unless applied with care and discretion by the trial judge, who has the overriding obligation to use his or her office to ensure that, within the judge’s capability, the accused is not exposed to the risk of an unfair trial.
In this case the complainant’s evidence-in-chief was pre-recorded in accordance with the procedure prescribed in s.37B of the Evidence Act on 4 June 1997; that is some 10 months after the alleged assaults. The evidence was recorded in response to questions asked by Senior Constable Fiona Stevens, a person “prescribed” within the meaning of s.37B to conduct such a “video and audio transcript of evidence”. This recorded evidence was the end product of a substantial number of interviews with the young complainant throughout those 10 months and was roundly condemned at the trial by the applicant, who had always denied the allegations, as wholly unreliable and a distortion of the truth because of contamination of, and suggestion implanted in, the young mind mainly at the instance of the complainant’s mother (“L.S.”).
It is necessary to say something of the background events against which the pre-recorded evidence is set.
The applicant, who was aged 31 years at the relevant time, and had no history of sexual deviation or abuse, had been living in a de-facto relationship with L.S. for some 10 years. It was a turbulent relationship marked by lengthy periods of separation and bitter disputes over access to the four children of the union, of whom the complainant was the only girl and the second eldest of the children. In mid 1996 they were living with the children in rented accommodation at Gobur, a small rural hamlet near Alexandra in country Victoria. The applicant, who had previously worked in Melbourne in the printing trade, was unemployed and there was much friction in the home between him and L.S., which the latter described in her evidence as akin to “open warfare”.
Each of them gave evidence at the trial and described the events which had occurred on the 6 and 7August 1996. There was dispute between them as to certain matters but there was some common ground.
The complainant attended a kindergarten at Alexandra, some 30-40 kilometres from the home at Gobur. On the morning of 6 August 1996 the applicant drove the complainant to kindergarten where she was due to attend at 9.30 a.m. and remain until 2 p.m. L.S. had dressed the complainant that morning, which was cold and wet, in a jumper and “T-shirt” and two pairs of “leg-ins” or long pants, the innermost of which was of a black and white check pattern. Beneath these “leg-ins” the complainant wore a pair of “Casper” underpants to which she was particularly attached because they had an imprint on them which “glowed in the dark”. Ms. Mits, the kindergarten director, said that the child was her “normal self” on 6 August and that, because of the conditions of weather, the children all stayed inside during the day. The applicant, who had done some shopping in Alexandra and returned home, left in the car to pick up the complainant at about 1.30 p.m. He said the car was “running roughly” and would not travel at speed. Nonetheless it appears that he arrived at the kindergarten and picked the complainant up shortly before 2 p.m.
There was a dispute between L.S. and the applicant as to the time at which the applicant arrived back at the house. L.S. said that the applicant did not arrive back until about 3.30 p.m. which was about an hour later than expected and that, in response to her request as to why he had taken so long, the applicant had replied that it was because of the condition of the car. The applicant said that it was true that he had trouble with the car but that he had in fact arrived back at the house shortly after 2.30, although he had made stops at a milk bar in Alexandra where the complainant had bought a bottle of Coca-Cola and some lollies, at the hotel in Yarck (a small town between Alexandra and Gobur) where he had bought a can of “Cougar” Bourbon and cola (his favourite drink) and at the mail box at the end of the road leading to the house.
In any event there was no suggestion of distress in the complainant when they arrived home. At about 3.45 p.m. L.S. said that she took the complainant with her in the car to pick up the complainant’s older brother S, aged 7, from the bus which brought him home from primary school. They went in the applicant’s car which L.S. said was running “OK”. The applicant, who had remained at the house to look after the two younger children, said that L.S. and the complainant had left shortly after 3 p.m. and were absent for an hour. On this occasion it was he who complained that L.S. had been gone much longer than expected. Thereafter the applicant prepared the dinner for the family and was responsible for preparing the complainant and her elder brother for bed. Each had a shower. In the course of washing the boy’s hair the applicant said that he had told the complainant to take off her clothes and come into the bathroom to the shower. It was not suggested by anyone that during this day the complainant appeared distressed or suggested that she was injured.
On the morning of 7 August, L.S. went into the complainant’s bed-room to prepare her for kindergarten. She found the two pairs of “leg-ins” which had been worn by the complainant on the previous day on the floor, one inside the other. She noticed that the black and white ones had blood on the crutch. She asked the complainant whether she had “done anything to herself” or whether her brothers had done anything to her. The complainant said “No”. The query as to whether the complainant had done anything “to herself” had been prompted by an incident which had occurred in January 1995 when the family had been living at Frankston in Melbourne at a time when the complainant was about 3↔ years old. On that occasion the complainant had been playing outside and L.S. had found her distressed and bleeding from the vagina. Upon inquiry, the complainant had told L.S. that she had hurt herself by inserting a “texta” pen in her vagina. There was, and could have been, no suggestion that the applicant was in any way responsible for that injury because he was at work. When L.S. found the blood on the black and white “leg-ins”, she examined the complainant. She saw bruising about her ears and back of the head. She said that she asked the applicant where the “Casper” underpants were and he said “they should be there”.
L.S. said that she had then made an appointment with the doctor in Alexandra, and had rung Ms. Mits at the kindergarten to tell her that the complainant would not be coming that morning. Ms. Mits was otherwise occupied at the time, but said that she was about to return the call of L.S. when the applicant rang. She said that the applicant had asked her whether “anything out of the ordinary” had happened to the complainant the previous day to which she had replied “No”. The applicant had told her that the complainant was bleeding and that they were unable to find her underpants.
On the morning of 7 August the applicant and L.S., accompanied by the two younger boys, drove the complainant into Alexandra to keep the appointment with the doctor. The complainant, who was still bleeding, was examined. The doctor alerted the Community Services Department who in turn alerted the police. Arrangements were made by Sergeant Walls, the senior police officer in Alexandra, for the complainant to be driven to the Royal Children’s Hospital in Melbourne. This happened in the afternoon of 7 August and the complainant was accompanied by L.S. and Senior Constable Stevens, a member of the Community Policing Squad and the person who was responsible for obtaining the pre-recorded evidence-in-chief of the complainant some 10 months later.
It would appear from the evidence given at trial that, from the time when the complainant was taken to Melbourne on 7 August, the family was “quarantined” from the applicant. Thereafter L.S. and the complainant went to live with L.S.’s parents at Frankston and L.S. said that she made arrangements for her mother to go to Gobur the following week to collect the other children from the applicant’s care and bring them to Melbourne. The mother also, according to L.S., brought L.S.’s clothing from the house at Gobur and, thereafter, the applicant had no contact with the family. Sergeant Walls said that, after preliminary investigations, the applicant was a “suspect” in relation to the injury suffered by the child, because he was the one who had collected the child from kindergarten the preceding day and, upon the version that the police had received from L.S., had brought the child home much later than expected.
In the afternoon of 7 August, the complainant was taken to the Gatehouse Centre, an annex of the Royal Children’s Hospital, where a medical expert, Dr. Harry, attempted to examine her. The complainant was unco-operative and arrangements were made to have her examined under general anaesthetic on the following day by a Dr. Sundrun. The results of that examination showed that the complainant was bleeding from a split in the hymen at a position described as “about 10 o’clock”. In Dr. Harry’s opinion the injury to the hymen was recent and was caused by “blunt” trauma which, in his opinion, was inconsistent with self- infliction. He said that, in his opinion, the injury could have been caused by the insertion into the vagina of a “body part” or “inanimate object”.
No further light was thrown upon the manner in which the complainant had suffered this injury until, on the best view of the evidence, the 19 August. On that day the complainant, according to L.S., said “Daddy done it”. L.S. conceded that this was no spontaneous complaint but one extracted by a threat made by L.S. that she would smack the complainant if she did not tell L.S. who had “hurt” her. When told that it was “Daddy”, L.S. said that she had “cuddled” the complainant and said “good girl”. L.S. said that she immediately informed Fiona Stevens. Stevens said that she had arranged for two police women from the Frankston Community Policing Squad to visit the complainant. The complainant however did not repeat or elaborate upon the information which she had given to L.S. Because the complaint made to L.S. on 19 August was not spontaneous, it was not adduced by the prosecutor but was fully exposed and explored in cross-examination.
On 21 August L.S. took the complainant to see a Ms. Kerry Williams who advertised her services in the local newspaper as “an abuse counsellor”. L.S. said that she and the complainant spent some time with Williams in the early afternoon of that day. Again the complainant said nothing to Williams. L.S. said that when she and the complainant had returned home from Williams’ rooms, the complainant began to “open up” to her about the events which had caused her injury. She said that the revelations came gradually between 4.30 p.m. and 7 p.m. that evening. She said that she was making notes of what the complainant was telling her but “did not think that she was putting words into the complainant’s mouth”. She said that on several occasions she had asked the complainant whether she had “forgotten anything”. The notes which she made were read in their entirety to the jury, again in the course of cross-examination. They were as follows:
“Wednesday 21/8/96; Between 4.30-7.00 [the complainant] and I were talking about the councellor (sic) that we went and seen today, to figure out if [she] wanted to go back tonight and [the complainant] said to me she didn’t no (sic) what to say or how to say it. I told [the complainant] she only has to tell the truth and say what happened, like when she told me. I told [her] that the councellor (sic) would ask her a couple of questions like who done it or were (sic) did you stop and what happened to you, and then [the complainant] said to me they stopped at a cubby near were (sic) dead people were. [H]er dad told her to get out and open and shut the gate, their (sic) were sheep around. [The complainant] said her dad told her to go inside and see if there was a toilet, her father followed her in their (sic) ([she] remembers seeing a rope and a ladder). They had a look around, then went back outside. Daddy told [her] to lay down on the grass and pull her pants off. he then put his middle finger in her fanny. he was really rough and hard. [The complainant] kept yelling out, he kept saying shut up or I will cut your head off (he put his knife on her throat) he kept belting [her] around the ears. he then stopped doing all this to [her]. [She] said their (sic) was lots of blood. her dad got a jumper out of the car and wiped [her] fanny with it and chucked the jumper in the tree (not far away). [She] put her own pants back on, then went and had a look at the big stone thing were (sic) dead people were. Then daddy said get in the car, [she] also opened and shut the gate. On the way home her dad told her to go straight to the toilet and wipe her fanny. And also said if [she] was to tell anyone he would cut her head off. (he then re showed [her] the knife). [The complainant] said daddy undressed her in the lounge room and threw her underwear in the fire ([she] said while this was happening that if she didn’t shut up he would get the rope and put it around her neck and hang her and he would go home and leave her here.”

L.S. said that, whilst the complainant was reciting these events, she contacted Senior Constable Stevens and passed on the information being received. Stevens in turn contacted Sergeant Walls in Alexandra. Walls said that he first received information at about 5 p.m. on 21 August but, at that stage, all he received was information that events had happened in and near a “cubby where dead people are”. He had then set off with a colleague to look for a cemetery with a “cubby”. He went to the Yarck Cemetery but there were no buildings in it. He then went and made inquiries at the Yarck hotel and was told that there was a cemetery near Gobur. At the back of this cemetery and near the wire fence, was a “grave-digger’s hut”, the door of which was closed but in which there was a hole a little over 3 feet high and 10 inches wide where the palings had come away. He said that behind the shed he found an empty can of “Cougar” Bourbon and cola, which he took with him. Walls gave evidence that he spoke to L.S. at about 7.30 p.m. on the night of 21 August when he was told of the other allegations which the complainant was said to have made. He asked L.S. to endeavour to find out from the complainant whether the applicant had been “drinking anything” on the 6 August. Walls further said that he returned to the Gobur cemetery on the morning of 22 August 1996 with a photographer. Under a pine tree adjacent to the “grave-digger’s hut” he found a blue jumper which was later identified by L.S. as one which she had bought for the applicant. Tests on the jumper failed to disclose the presence of human blood. Walls also made inquiries at the Yarck hotel. Mrs. Turner, the proprietor, told him that she remembered the applicant coming to the “drive-in bottleshop” at the hotel on 6 August to buy a can of “Cougar”. The complainant was with him at the time. Mrs. Turner gave evidence confirming these facts.
Following 21 August 1996 many efforts were made to interview the complainant in an endeavour to induce her to record in an evidentiary form the allegations said to have been made to L.S. on 21 August. Indeed it was put by the defence at the trial that L.S. had made it almost an “occupational obsession” to get the complainant to make allegations against the applicant to persons in authority, and that she was aided and abetted in this pursuit by investigating police. As early as 22 August 1996, and again on 16 September 1996, efforts were made to obtain evidence from the complainant in accordance with the V.A.T.E. procedure pursuant to s.37B of the Evidence Act. These came to nothing because the complainant would not co-operate. The complainant was also interviewed on no less than 5 occasions by Sergeant Walls. Again she refused to co-operate. On no fewer than 16 occasions between 21 August and November 1996 the complainant was taken by L.S. to see Williams, the “abuse counsellor”. On only one of those occasions, namely 23 August 1996, is there a record of what occurred. On that occasion Williams video- recorded the interview. Although Williams did not give evidence, the tape was played to the jury by the applicant’s trial counsel. It demonstrated that Williams had been provided by L.S. with the allegations against the applicant which were said to have been made to L.S. on the evening of 21 August. Williams transcribed those allegations onto separate pieces of paper which the complainant was requested to place in “appropriate boxes” during the playing of a “honey bear” game. Williams had deployed around her room a number of “honey-bears” which were given names such as “Mummy Bear”, “Daddy Bear”, “Poppa Bear”, “Nanna Bear”, and “Nobody Bear”. The complainant was told that the game was to put the “clue” into the box associated with the statement on the piece of paper, which would be read by Williams to the complainant. Thus Williams would hand a piece of paper to the complainant upon which was written “This person told [you] that if you told a secret, he would hurt [you]”; or “this person wiped blood off [the complainant’s] fanny with his jumper”; and so on. The complainant would then put the paper in the box associated with the “Daddy Bear”. On the other hand, if the printed note bore the inscription “This person makes me feel very safe” or “I love this person very much”, the complainant put the note in the box associated with “Mummy Bear”. It was the applicant’s case at trial that this type of procedure was calculated to perpetuate untrue allegations and to cement them into the mind of the complainant.
Between January 1997 and June 1997 the complainant was taken to see, on a fortnightly basis, another counsellor in Shepparton. Again no allegations were made to this counsellor implicating the applicant in the offences with which he was ultimately charged. The upshot of the evidence was that the child was interviewed more than 40 times between 6 August 1996 and 4 June 1997 when the VATE tape incorporating her evidence-in-chief was ultimately recorded. Apart from the allegations which she made to L.S. on 21 August 1996 (confirmed in the Williams’ interview of 23 August 1996) there were only 2 other occasions where the complainant was said to have made allegations against the applicant before the record of her evidence was taken on 4 June 1997. These allegations were made in what were called “written police statements” compiled at interviews between the complainant and Senior Constable Stevens on 25 October 1996 and 13 February 1997. In the first of these statements, which was read into evidence during the cross- examination of Stevens, the complainant repeated the essentials of the allegations made to L.S. on 21 August 1996; but there were some additional allegations to the following effect:

(a)

“Dad put me up against the back of the cemetery wall and said he will tie me up to the back of the cemetery wall and leave me and go home.”

(b)

“[Dad] broke the ladder [in the cubby] because he sat on it. Dad got into the cubby with me. I got into the cubby because there was a hole. There was a broken part of the cubby. I needed to do a wee and I did … Dad was in there when I did that. He sticked his finger underneath my wee and licked it off his finger.”

(c)

“Dad had a ‘Cougar’ can that he was drinking and he gave me the last part of it to drink … . He chucked it on the ground at the back of the cubby … . Dad bought the Cougar from the Yarck shop.”

(d)

“Before we went to the Cougar shop at Yarck … he stopped in the town … and I went in and bought a lolly and a bottle of coke.”

In the second statement made to Senior Constable Stevens on 13 February 1997 (also read to the jury during cross-examination of Stevens), the complainant raised some further allegations against the applicant. For the first time the complainant alleged that the applicant had, on 6 August 1996 and in her presence in the car on the way to the cemetery, taken his penis out of his pants and “masturbated”. The complainant also said for the first time that “every time” she travelled in the car with the applicant and when her mother was not present, he would “touch her” on her “rude part”. However, she told Stevens that on the occasion of 6 August 1996, he “didn’t touch me on my rude part in the car”.
In this statement she also raised new allegations about the events which had occurred on 7 August 1996 when she was driving to the doctor with the applicant, her mother and two younger brothers. She said:
“When mum got out of the car to shut the gate, dad said: ‘If mummy
asks ya, tell her you done it with a pencil’.”
Such were the nature and substance of the complainant’s allegations against the applicant as they stood at 4 June 1997 when the matter came before the Magistrates’ Court at Shepparton for a committal hearing. No doubt recognizing the difficulties which would be entailed in obtaining viva voce evidence-in-chief from the complainant in the court, the prosecutor requested, and the court granted, an adjournment of the proceedings to enable another attempt at the V.A.T.E. procedure contemplated by s.37B of the Evidence Act. By this time Senior Constable Stevens had qualified, pursuant to the relevant regulations, as a “prescribed” questioner and it was she who, on 4 June 1997, interrogated the complainant and was responsible for the audio-visual recording which ultimately became the complainant’s evidence-in-chief upon the applicant’s trial in March 1999. At the trial, and in accordance with the procedure provided for by s.37B of the Evidence Act, the complainant who was in a room remote from the court-room was asked to look at a replay of the audio-visual record of 4 June 1997 and to assent to the proposition that the statements which she had made were true. Those statements included the following:
(i)           That her dad had “hurt” her in the cemetery by “sticking his finger up my private part” on a day when they were driving home from kindergarten to Gobur.
(ii)          That, in the car, the applicant “was playing with his private part” while “he was driving with one hand and pulled down his pants”.
(iii)         That the applicant had bought 3 cans of Cougar from the Yarck hotel.
(iv)         That, when they got to the cemetery, the applicant had told her to open the gates and they drove in.
(v)          That they had “climbed into this dark wooden house thing, a cubby” through “a little opening” and that the applicant had sat on a ladder inside and had broken it. (The complainant could not say why they had gone into the “cubby” or what had happened when they were in there.)
(vi)         That when she came outside the “cubby” she “looked at people who were dead in the cemetery”.
(vii)        In response to “leading” questions she again said that the applicant had put his finger “up her private part” when they were “at the cemetery”. She was “lying down on the grass behind the back of the cubby” and that he had “hit me around the ears” and told her “If you tell anyone I’ll cut your neck off”. When asked whether the applicant had “anything in his hands when he was belting you”, the complainant shook her head.
(viii)       She said she was wearing a jumper, a T-shirt and 2 pairs of pants.
(ix)         That the applicant was wearing his “work-boots, T-shirt, jumper and his long pants that had all the ink over them”.
(x)          That after they returned home, the applicant had thrown her undies in the fire – “not a fire which you burn outside – a heater” which was in the house. The undies “had blood on them” which happened “by sticking his finger up my private part”. He threw them in the fire “at night time when Mum was in the bar”. She said she saw him throw them in the fire.
(xi)         That the applicant “threw his jumper up in the tree, ‘cos he wiped my private part with it ‘cos it was bleeding”; it was “his black work jumper with all the ink over it”.
(xii)        That the applicant had said to her that “if you tell anyone I’ll cut your neck off” and that when he said that he had “put the knife at my throat”. When he said that she was “in the car”. The knife was in his pocket and was “orange with a big blade on it”.
(xiii)       That before they went to the hotel in Yarck they had been to a shop in Alexandra where “he bought me lollies and a bottle of Coke”. A man had served her in the shop while the applicant waited in the car. She drank the Coke and put the bottle on the floor.
(xiv)       That the applicant had drunk 2 cans of Cougar which he threw on the floor of the car and one can which “he threw over the fence of the cemetery where the sheep were”.
The complainant was asked whether the applicant did anything else to her at the cemetery and she replied “No”.
Before this evidence was admitted at the trial, counsel for the applicant had submitted, on the voire-dire, that it should be wholly excluded pursuant to the discretion invested in the trial judge by s.37B(4) of the Evidence Act. Counsel had submitted that the history of interrogation which had preceded the recording of the evidence-in-chief, the pressures which had been placed upon a girl of such tender years to make allegations against the applicant, the reluctance which had been displayed at times by the complainant to make such allegations and the significant discrepancies which existed between the various accounts given, should lead the judge to the conclusion that what had finally been recorded some 10 months after the events of 6 August 1996 was so wholly unreliable that the trial would be rendered an unfair one if the material was admitted. In support of counsel’s submissions, the applicant called evidence from a clinical and forensic psychologist, Paul Francis Fagan, who expressed the opinion that the series of interviews conducted and the nature of some of them, had the potential to distort the child’s memory processes and so contaminate her views as to render her evidence unreliable.
Her Honour declined to exclude the “V.A.T.E. recording” in the exercise of her discretion on the basis that she had not been satisfied on the material placed before her on the voire dire that it was contaminated by the earlier events. Her Honour’s ruling has not been specifically challenged on this appeal although Mr. Tehan has raised many of the same matters which were raised on the voire dire in support of his contention that the verdicts of the jury were unsafe.
Before I turn to consider the issues raised on this appeal, it is important to note that the applicant gave evidence on oath in which he denied the allegations made against him by the complainant. It was his contention that the allegations had been implanted in the mind of the complainant by her mother, L.S., who was desperate to exclude him from her life and contact with the children. (Although L.S. denied this allegation, she conceded that by October 1996 she was pregnant to another man.) He also said that L.S. was well familiar with the Gobur cemetery and the grave-digger’s hut because it had been a favourite location of his and hers for sexual liaisons. (It should be said that L.S. denied this allegation.) He also said that “I’ll cut your head off” was a favourite expression frequently used by L.S., when scolding the children (again denied by L.S.). He also said that it was L.S. who would, in order to save washing chores, throw soiled nappies and underwear into the heater. L.S. also denied this allegation when it was put to her.
The applicant denied that he had been to the cemetery at Gobur on 6 August with the complainant, denied that he had been in the hut, denied that he had penetrated the complainant and denied that he had threatened the complainant with a knife. He said it was well known to L.S. that he carried a “Stanley” knife with a retractable blade. He said he had taken the complainant to kindergarten on the morning of 6 August, that thereafter he had been to the bank and done some shopping in and around Alexandra before returning to Gobur. He said that he was “partial” to “Cougar” and had purchased a 3 can “pack” on special at the supermarket. He said that he had returned to the kindergarten to collect the complainant at about 1.45 p.m., had then stopped at the milk bar in Alexandra so that the complainant could get some lollies and a Coke; had then driven to Yarck where he had called in at the bottleshop to buy 1 can of “Cougar” (not 3 as the complainant said). He then drove home to Gobur and denied that he had stopped at the cemetery. He denied that he had exposed his penis or masturbated in the car, although he agreed he drank the can of Cougar on the way home. He said he arrived home at about 2.35 p.m. (although he said he did not wear a watch). He said the car was running very roughly and could not be driven at speed. He stopped, he said, at the mail box before driving down the road to the house. L.S. was, he said, in a foul temper when he got home because of the antics of the younger boys. She had gone out to pick up the oldest boy at about 3.05 p.m. and was away for an hour. He said that he would never hurt the complainant and she was in no way injured when he brought her home. He cooked the dinner; they ate it as a family; he then washed the oldest boy’s hair and told the complainant to get undressed and come into the shower. He said he did not know what happened to the “Casper” underpants and he did not throw them in the fire. In cross-examination he agreed that they had searched for the underpants but could not find them. He said that he had similar jumpers to the one found by the police but that one was not his. It was his view that L.S. had caused the complainant to implicate him and had “planted” the Cougar can and the jumper in the cemetery. He said that “L.S. is capable of anything”.
Grounds of Appeal
Although Mr. Tehan’s primary contention on this appeal was that this Court should conclude upon its own assessment of the evidence that the verdicts were unsafe, I think it is desirable that I should postpone consideration of that ground in favour of first considering the other ground argued – namely that the judge “erred in directing the jury that statements made by her concerning the potential for error in the case were only judicial comments”. (Ground 5).
It was Mr. Tehan’s submission that, having regard to the age of the complainant, the manner in which her evidence was received, the discrepancies in her various accounts and other factors which suggested that her evidence was unreliable, and the absence of any reliable corroboration, this was a case where the judge had an obligation to use the authority of her office to give to the jury a warning in strong terms that it would be unsafe to convict the accused solely on the evidence of the complainant. Her Honour had, at the end of the evidence but before addresses, been asked by counsel for the applicant to give such a warning. Because she declined to do so, counsel had to tailor his address accordingly. Mr. Tehan submits that the failure to give the type of warning which was called for amounted to judicial error giving rise to the unacceptable risk that a miscarriage of justice had occurred.
In the course of her directions to the jury, her Honour said:
“In all cases like this it is very commonly (sic) that there is going to be
no other actual witness of the events in question.
As fact finders you need to be fully aware of the potential dangers of convicting on the evidence of one witness unless after careful scrutiny of the evidence you are satisfied of its truth and its accuracy. In any case where there is no external evidence to support a witness as to who it was that committed offence against them, you have to consider the potential for error.
I should point out also that it is not necessary as a matter of law to have supporting evidence which confirms or supports a complainant as to who committed the offence, although you may consider in some circumstances that, in its absence, then the potential for error becomes greater. That is a matter for you to assess and use your common sense. Caution would suggest that there is a risk that people may have motives or hidden reasons for falsely accusing other persons of crimes and there is a risk that the accuser could be a more convincing witness than the accused.
Here, although you have heard the Crown case, that there is no direct evidence that the accused was the offender, the Crown also points to the objective evidence which they say adds to the reliability of her story. That is the finding of the Cougar can, the blue jumper, and the description of the cemetery and the hut in the cemetery, and the fact that it is uncontested that she was injured in her vagina and bleeding on 6 August 1996.
All these factors, the Crown says, should lead you to have some comfort when scrutinizing her evidence, that it is in fact reliable and true. You have also heard … the defence comments on these matters, the denial that it is his jumper, the assertion that someone, probably [L.S.] planted these things in the cemetery to … “set him up”, that [L.S.] had motive and reason to get [the complainant] to lie about these things, that she had the opportunity to know about the cemetery because of the evidence that you heard that she had been there on other occasions, although again, she disputes and denies that … .
Also you should look at the fact of memory itself. The fact that it is common human experience that time does have an effect on memory, that it can fade over time, that honest people do sometimes convince themselves that some incidents occurred in a particular way in the past. One cannot ignore that fact that human imagination, emotion, prejudice, or suggestion that could have an effect on their memory of events. It is also common human experience … that some things stick in a person’s mind and never fade to the day they die … .”

Her Honour then went on to point out to the jury that they had heard evidence from Mr. Fagan about the “potential for contamination” because of the number of times the complainant had been interviewed. She also told the jury they would have to consider the number and types of interviews to which she had been subjected and the variety of people who had interviewed her. Furthermore her Honour reminded the jury that they should consider the complainant’s age at the time of the offences; the fact that she was “barely 5” and that another “third of her life has passed before the matter came to trial”.
On this topic, her Honour concluded:
“These are only comments, members of the jury, that I am making to you about the way in which you go about assessing the evidence; they do not bind you and you do not have to approach it in that way, but it would be quite wrong in a child of this sort if you ignore the potential for error; if you do not look at these matters, that is all I am asking you to do. You ultimately have to make up your own mind, give the evidence full scrutiny and if you cannot resolve the conflicts of evidence, and if those conflicts cannot be resolved in relation to essential evidence, then the Crown has not satisfied you in relation to these particular counts. If you are able to be satisfied beyond reasonable doubt, after you have applied all this scrutiny of the evidence that I have indicated to you and after you have brought your collective commonsense to bear on the issues in this case, then you are bound to convict … . I am simply saying to you that because of the nature of the evidence in this case and the issues that are involved, obviously you have to be careful about looking at the evidence.”
In my opinion these directions were, in the circumstances of this case, an insufficient discharge of the judge’s obligation to appropriately warn the jury of the risks involved in acting on the complainant’s evidence. The comments which the learned judge made were, largely, non-specific to the evidence which was before the jury and were little more than a reminder to them that, in every case where there is a conflict between the accuser and the accused, the jury should be mindful of the “potential for error” before acting on the evidence of the accuser, particularly if that evidence is not supported by “external evidence”. I am not sure what her Honour meant when she said that “there is no direct evidence that the accused was the offender” but it is unlikely that the jury were misled by this direction.
In my view the circumstances of this case required a very clear warning, carrying with it the authority of the judicial office, that it would be dangerous to convict the accused on the uncorroborated evidence of the complainant, unless after thorough scrutiny of that evidence and paying heed to the warning which the judge was giving, they were convinced of its truth and accuracy. This was the warning which the applicant’s trial counsel had asked the judge to give to the jury. In declining to give such a warning, the judge, in my opinion, was in error.
There were particular features of the complainant’s evidence in this case, and the manner in which it was given, which required the clear warning to which I have adverted. Those circumstances included the young age of the complainant both at the time when her evidence was recorded and at trial; the fact that the first complaint implicating the applicant was made after 2 weeks and was extracted by pressure; the fact that the evidence had been pre-recorded some two years before the trial in response to questions which, in some instances, were both prompting and leading; the fact that there were significant discrepancies between the evidence so given and the accounts which had been previously given; and the number and nature of interrogative procedures to which the young complainant had been subjected in the ten months between the alleged assaults and the time when her evidence was recorded. No doubt the potential unreliability of the evidence stemming from the tender years of the complainant and the intensive interrogative procedures which she had undergone were matters to which the jury would have been alert having regard to the way in which the case had been conducted and the comments which the judge made. However in this case there was a more subtle prejudice flowing to the accused as a consequence of the procedures employed in putting the evidence before the jury. As I have indicated, the evidence was secured in circumstances remote from the courtroom and, at least in part, by methods of questioning which may have been ruled objectionable if given in court. But, as this case graphically illustrated, a further prejudice potentially flowed to the applicant from the procedure adopted because he was effectively deprived of any realistic opportunity of testing the credibility and reliability of the complainant’s evidence through cross-examination, which the adversarial system of justice allows as a means of determining where the truth lies. Although there may be some who would take leave to question the broad statement made in Wigmore on Evidence, Vol.5, para 1367, (Chadbourn Rev. 1974) that cross-examination “is beyond any doubt the greatest legal engine ever invented for the discovery of truth”, it is none the less a potent weapon for probing the credibility and reliability of an accuser’s version of events. Although there were many features of the complainant’s evidence-in-chief which could, in the case of an older witness, have been tested and explored, it is apparent from the perusal of the transcript in this case that it could not be achieved with such a young complainant. In respect of many questions no answer at all could be elicited, no doubt because the tender years of the complainant rendered her incapable of forming a rational response to them. This left the applicant in what appears to have been an awkward situation because the more counsel pressed, the more likely it would have been that sympathy flowed to the child to the applicant’s consequent disadvantage. On more than one occasion counsel was moved to implore “Can you answer my question, please?” and sought judicial intervention by such comments as “I would seek that she answer my questions”. However, and understandably, the judge could do little, saying: “I am not going to put pressure on her unless necessary”. Although it is not easy, by reading from the transcript, to judge the full extent of the difficulties encountered by counsel, it seems to me that, at the end of the day, he simply had to give up asking questions which were calculated to test the reliability of her memory. In a case where the defence was, in essence, that the complainant had been “programmed” to answer questions about confined matters in a particular way, the disadvantage was considerable. No answers could be obtained about various aspects of the mother’s conduct generally or in relation to relevant events which occurred on 6 and 7 August 1996. Towards the end of what seems to me to have been an unproductive cross-examination, the prosecutor complained to the judge that the witness’ memory of matters beyond that of what had occurred at the cemetery was “really not that relevant”. Counsel responded – and I would have thought with some justification – that “this witness’ memory is absolutely crucial …”. Whilst, perhaps, counsel can be criticized for not seeking to simplify questions, I am none the less left with the firm impression that cross- examination of the complainant was not a viable option in this case and, if anything, was counter-productive.
It was the combination of circumstances to which I have referred in the preceding paragraph which carried with it the potential for unfairness to the applicant in meeting the charges preferred against him. As I have already indicated, that potential is inherent in the procedure prescribed by s.37B of the Evidence Act because it permits the evidence-in-chief of young children to be presented as a “pre- recorded package” and without the witness having been sworn or giving her evidence viva voce in the face of the jury. These procedures represent a radical departure from the common law and, although the court is required by s.23(1) of the Act to satisfy itself that the witness is (inter alia) capable of responding “rationally” to questions about the facts in issue, that satisfaction will normally be gleaned in circumstances of limited opportunity and without the capacity of observing the witness’ ability to respond to cross-examination. The aim of the sub-section is not to ensure that the evidence is credible but rather to ensure that it meets the minimum threshold of being receivable, a threshold which is not a high one (cf. R. v. Marquard (1993) 85 C.C.C. (3d) 193 at 219, 220). Although s.37B allows for evidence to be taken in the manner to which I have referred, it does so subject to the witness being “available for cross-examination” (s.37B(3)(c)(ii)), which in terms contemplates that an accused person should have a realistic opportunity of testing the witness’ evidence and reliability through a procedure which our system of justice regards as “an incident of the obligation of a court to ensure that there is a fair trial” (R. v. McLennan, unreported, Court of Appeal (Qd), 20 June 1997 per Davies, J.A. at p.9; see also Kant v. Director of Public Prosecutions (1994) 73 A.Crim.R. 481 per Kirby, P. at 494). The right which the statute contemplates should be afforded to the accused will become little more than empty rhetoric where it cannot be realistically achieved because of the extreme youth of the person whose evidence-in-chief is given by way of pre-recorded interview. It was these circumstances, which may not have been readily apparent to the jury, that required the judge, in the interests of ensuring a fair trial, to do more than make the comments which she did and which, as she told the jury, they were free to reject if they were so disposed. Where circumstances arise during the course of the trial which create an apparent unfairness to the accused, as in my view they did in this trial, it is the responsibility of the trial judge to use the powers at his or her disposal to avoid the unfairness. That responsibility should have been discharged, in this case, by giving appropriate directions to the jury designed to counteract the prejudice which the accused might otherwise have suffered as a result of the inability to properly test the complainant’s evidence (cf. Jago v. District Court (N.S.W.) (1989) 168 C.L.R. 23 at 47 per Brennan, J.). It was not a sufficient discharge of that responsibility for the learned judge to have merely advised the jury that they might consider that there was “potential for error” arising from the fact that the complainant was a child, a direction which in the light of the matters to which I have adverted was quite inadequate to bring home to the jury the dangers which lurked in acting solely on the evidence of this complainant (cf. R. v. Jolly [1998] 4 V.R. 495 at 502 per Kenny, J.A.).
The comments which I have made should not be interpreted as meaning that, in every case where the procedures prescribed by s.37B of the Evidence Act are employed, the judge will be obliged to give the warning which, in my view, should have been given in this case. Each case will depend on its own facts and there will no doubt be many cases where there will be no relevant unfairness simply because the evidence-in-chief has been given by means of the “V.A.T.E. procedure”. The statute contemplates that the procedure can be adopted in the prescribed cases where the witness is “under the age of 18 years”, and thus contemplates that there will be many witnesses who are competent to give their evidence under oath and will be capable of being properly and adequately tested by cross-examination. It is not readily apparent from the transcript why the learned judge declined to give to the jury the warning which counsel had requested and which, in my view, was warranted. She was not constrained from doing so by reason of the provisions of s.23 (2A) of the Evidence Act which, as I have previously noted, precludes a trial judge from “warn(ing) or suggest(ing) in any way” to a jury that (inter alia) children are “an unreliable class of witness”. By force of this section children are no longer to be regarded as an inherently unreliable class of witness as once they were (Director of Public Prosecutions v. Hester [1973] A.C. 296 at 325, per Lord Diplock; R. v. Pahuja (1987) 49 S.A.S.R. 191 at 215, per Cox, J.); just as, by force of s.61 (1)(a) of the Crimes Act 1958 complainants in sexual cases are not to be regarded as an unreliable class of witness. But that does not mean that a trial judge is relieved from giving to the jury such warning as is required by the circumstances of a particular case to avoid a perceptible risk of miscarriage of justice (cf. Longman v. R. (1989) 168 C.L.R. 79 at 91 per Brennan, Dawson and Toohey, JJ.; Robinson v. R. (1999) HCA 42 at [19]; R. v. Miletic [1997] 1 V.R. 593 at 606). Just as in Longman’s case, supra, the applicant’s ability to adequately test and defend himself against the complainant’s allegation had been lost by sheer delay, so in this case the applicant was, as a matter of reality, deprived of that ability as the result of being effectively precluded from testing the complainant’s version in the manner contemplated by s.37B of the Evidence Act. Although there can be little doubt that it was the underlying purpose of s.37B to strike a balance between the trauma which will inevitably be caused to a young child in giving evidence against a person accused of sexually assaulting her on the one hand, and the fairness of the trial of that accused person on the other (cf. R. v. McAndrew-Bingham [1999] 1 W.L.R. 1897 at 1904), it remains the responsibility of the judge to use his or her powers to restore fairness if the balance has become distorted.
There were some unusual features of the complainant’s evidence which, given proper opportunity, the applicant could have tested. For a start, the complainant at no time identified the Gobur cemetery as the place where these assaults occurred, nor did she identify the “grave-digger’s hut” at that cemetery as the “cubby” which she was told to enter. The size of the “square” in that hut (being only 10” wide) might have been thought to raise the improbability of the applicant gaining entry through that aperture. The allegation that the applicant masturbated in the car (Count 1) was not one which had been made when the complainant first disclosed relevant matters to L.S. on 21 August 1996. It appears first to have been made to Senior Constable Stevens in February 1997 and then in the context of an allegation that the applicant frequently touched the complainant sexually when she was in the car with him in the absence of her mother. However, on that occasion, the complainant told Senior Constable Stevens that the applicant had not touched her “on the rude part” on the way to the cemetery. Yet, although in her “evidence-in- chief”, the complainant repeated her allegation of masturbation, she alleged also that he had “stuck his hands down my pants and played with my private part”, in contradistinction to what she had previously said. Furthermore there were a variety of versions of the threats said to have been made by the applicant and the places where those threats were said to have been made (Count 4). According to Dr. Harry the bruise on one of the complainant’s ears did not appear consistent with a “beating” of the ears (Count 3). The complainant’s evidence that the applicant had drunk 3 cans of “Cougar” on the way to the cemetery and had thrown 2 empty cans on the floor of the car was inconsistent with Mrs. Turner’s evidence that he had bought only one can. The fact that, on the uncontested evidence of the applicant, he had bought a “pack” of 3 cans in the morning raised the possibility that someone had told the complainant of this circumstance. Her evidence did not contain allegations, previously made, that the applicant had told her that he wanted her to “hurt” herself by placing her finger in her vagina. Nor did she say that, on the following day, he had told her to tell her mother that she had “done it with a pencil”.
There were other apparent inconsistencies in the accounts which were said to have been given by the complainant. One of these was the allegation that in the “cubby” the applicant had put his fingers in her “wee” and “licked them”. This account disappeared from the evidence recorded on 4 June 1997 despite the valiant attempts by Stevens to get the complainant to recall things which had happened in the “cubby”. If the jury had thought it improbable that the applicant could have got through the “square”, it would no doubt have cast doubt upon this allegation in any event. Likewise her suggestion that the applicant had “broken a ladder” in the “cubby” by sitting on it. The evidence of the police officer, Coutts, was that there was nothing in the grave-digger’s hut that suggested recently broken pieces of wood or indicated that what was once a ladder had been broken.
These matters, and others, would have made a fertile field for cross- examination, if a realistic opportunity for such cross-examination had been available. In the context of the warning which, in my view, the learned judge was obliged to give to the jury, it would have been appropriate to have reminded them of these weaknesses in the complainant’s evidence which an adequate opportunity to cross- examine may well have exposed, and to have further reminded them that the inability of the accused to properly test the accuracy and reliability of the complainant's account was one of the reasons why they should pay heed to the warning which was being given to them. Although her Honour mentioned some of these inconsistencies in the course of making comments to the jury she said that she was “not going to go through them all” and, of course, did not mention them in the context of a warning that it would be dangerous to act solely on the complainant’s evidence. One of the strengths of the common law is its capacity to adapt its practices and procedures to accommodate the variety of circumstances which will, or may, emerge in individual cases. It has now become common place for juries to try sexual offences alleged to have been committed against children of tender years. In many of those cases, and this was one, the effectiveness which the adversarial system attributes to cross-examination will, or may be, reduced. The consequences which should flow from that factor will initially fall for consideration by the trial judge who will be required to determine its significance in the circumstances of the particular case. In some cases, for example where inherent defects and inconsistencies appear in the complainant’s evidence and there is no supporting evidence, the inability to properly test the credibility of the complainant’s account may lead the trial judge to withdraw the case from the jury. In other cases, an example of which in my opinion this case is one, the appropriate course will be to restore the balance of fairness by giving appropriate directions to the jury so as to alert them to the potential unfairness to the accused emanating from his inability to probe the credibility of the complainant’s version of events. In the recent case of R. v. Hart (1999) 135 C.C.C. 377 at 400-01, Cromwell, J.A., speaking for the Nova Scotia Court of Appeal, posited a test which, with respect, appeals to me as a sensible one. The Court said:
“What then is the Canadian common law rule which applies when a child witness is unable or unwilling to complete cross-examination? Some of the older common law authorities suggest that if the inability to cross-examine the witness is the fault of the witness or the party calling the witness, the evidence-in-chief should be struck. I am not persuaded, however, this is an appropriate rule to apply to a child witness, particularly where there has not been a complete inability to cross-examine. Rules of evidence and trial procedure need to be applied to child witnesses with flexibility and common sense and such a rule is inconsistent with that approach.
In my opinion, the common law rule is that whether the trial may proceed after an incomplete cross-examination of a child witness or some other remedial action should be taken is entrusted to the discretion of the trial judge. That discretion is to be exercised taking into account the various factors discussed in the preceding sections with a view to ensuring both a fair trial for the accused and with due regard for the pursuit of truth.”

Although, in my view, there has been a miscarriage of justice for want of proper direction, it is necessary to now consider Mr. Tehan’s primary submission that the convictions are “unsafe” in the sense that this Court, on its own assessment of the evidence, should conclude that its nature and quality were such that the jury, even if properly instructed, were bound to entertain a reasonable doubt as to the guilt of the applicant (M. v. The Queen (1994) 181 C.L.R. 487). This is an appeal to the Court to exercise its powers, given by s.568(1) of the Crimes Act 1958, to set aside a verdict on the grounds that it is “unreasonable, or cannot be supported, having regard to the evidence”. The question posed for the Court is one of fact which the Court must decide by making its own assessment of the evidence (Morris v. R. (1987) 163 C.L.R. 454) and determining whether, notwithstanding that, as a matter of law, there is evidence to sustain the verdict, the Court thinks that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused (M. v. The Queen, supra, at 493 per Mason, C.J., Deane, Dawson and Toohey, JJ.). The Court, in answering that question, cannot “disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses” (M. v. The Queen, supra, at 493). The usual result of a conclusion by a court of criminal appeal that a verdict was “unsafe” would be the entry of a verdict of acquittal.
It was Mr. Tehan’s contention that the evidence given at the trial revealed that the complainant’s evidence was demonstrated to be so unreliable that the jury, acting reasonably, could not or should not have acted upon it; and that having regard to the fact it was the central evidence upon which the jury was invited to act in determining the guilt of the accused, this Court should conclude that their verdicts were “unsafe” in the relevant sense. In support of this contention Mr. Tehan relied upon the fact that the complainant had made no spontaneous or immediate complaint to a person in authority; that the first “complaint” which she had made was to her mother in circumstances where threats had been made to her; and that thereafter her version of events had been so contaminated by the series of interviews conducted by her mother, Williams, Walls, Stevens and others that no jury, acting reasonably, could have regarded her evidence as an accurate or true version of the events upon which they were asked to return a verdict. In particular Mr. Tehan relied upon the evidence of Mr. Fagan that, in his opinion, the interview conducted by Williams on 23 August 1996 would “make a wonderful tape to show people what not to do” and that “on its own” that interview had “the ability to so contaminate a child’s recall of events that it would be like … potentially destroying evidence”. It was the applicant’s submission that the evidence later given and relied upon by the Crown in the form of the “V.A.T.E. procedure” was itself “destroyed” as a reliable version of events by this contaminating process. It was further contended that there was no forensic evidence to link the applicant with the offences; there were no fingerprints found on the can taken from the cemetery, no human blood detected on the jumper and nothing found otherwise at the Gobur cemetery to corroborate the complainant’s allegations. In the light of the fact that the applicant had no previous history of abusing his daughter, and that he had consistently denied the complainant’s allegations, and the fact that her account could not be properly tested, Mr. Tehan submitted that the verdicts were unreasonable.
Notwithstanding the powerful arguments made by Mr. Tehan, I am far from persuaded that the verdicts were unsafe in the sense that the jury, properly instructed, were bound to have entertained a reasonable doubt in respect of any of the offences with which the applicant was charged. The arguments, as it seems to me, underline the need for proper directions rather than the insufficiency of evidence to support the verdicts. Although the trial judge was disposed to the view that there was no “corroboration”, there were, in my view, a number of circumstances revealed by the evidence which, if accepted by the jury, were capable of corroborating the evidence of the complainant, at least in respect of the offence alleged in count 2. The finding of the jumper, if the jury were satisfied that it belonged to the applicant and had not been “planted” by L.S., was strongly supportive of the complainant’s evidence, notwithstanding that subsequent testing was unable to substantiate the presence of human blood. It was not contested that the complainant had, almost certainly on 6 August 1996, suffered a ruptured hymen which, on the evidence, the jury was entitled to find was not self-inflicted. The finding by the police of the “Cougar can” behind the hut in the cemetery was another piece of evidence capable of supporting or confirming the complainant’s version of events, provided, once again, that the jury rejected the applicant’s evidence that it had been “planted”. Likewise the disappearance of the underpants was capable of supporting her evidence, because the jury would be entitled to conclude that the complainant herself was unlikely to have destroyed them; nor was it likely that her mother would have done so if she was, as the applicant claimed, trying to “set him up”. Furthermore, if the jury accepted the evidence of L.S. that the applicant had taken an unduly long time to return the complainant from the kindergarten, they were entitled to find that he had, and had taken advantage of, an opportunity to assault the complainant. These were all matters which were corroborative of the complainant’s evidence in the sense explained by Brooking, J.A. in R. v. Rayner [1998] 4 V.R. 818 at 851-2. Contrary to the underlying premise of Mr. Tehan’s submissions, I am quite unable to accept that the complainant’s evidence should be looked at in isolation from this supporting material in determining whether the verdicts are unsafe.
Nor can I accept Mr. Tehan’s submission that the complainant’s evidence was rendered so unreliable by the repeated interrogation procedures which had preceded it, that the jury were bound to disregard it. Provided that appropriate directions have been given, it is ultimately a matter for the jury to determine the reliability of evidence (Rozenes v. Beljajev [1995] 1 V.R. 583 at 556-7). Mr. Tehan, in the course of argument, relied heavily upon the opinion given by Mr. Fagan to the effect that repeated interviewing of a young child, unless carried out with extreme care and in accordance with accepted procedure, has the capacity to influence and distort the child’s accurate recall of events. It would seem to me from a reading of his evidence, that many, if not most, of Mr. Fagan’s criticisms were directed at the interview of the complainant by Ms. Williams on 23 August 1996 which he said had the “potential” to destroy any accurate recall which the complainant may have. However, in the long run, he appeared to concede that, if the complainant had given, in a free and voluntary manner, a version of events before that interview which was consistent with the version later given in evidence, that would add “a confidence level” to a conclusion that the version was truthful. That concession seems to me to be a significant one because, if the jury had taken the view that the version of events claimed to have been given to L.S. on 21 August 1996 was spontaneous, it was also open to them to conclude that, because of the thread of consistency which existed between that version and the one given in evidence, the intervening interviews (including that of 23 August) had not had the effect to which Mr. Fagan referred. It must be remembered that in a criminal trial it is not the function of an expert to usurp the fundamental role of the jury in determining the reliability of the evidence. No doubt it is open to an accused person to lead evidence from an expert witness which is designed to “impeach” the evidence of a critical crown witness, provided that the evidence is within a field appropriate for expert evidence (cf. Bromley v. R. (1986) 161 C.L.R. 315 at 322 per Brennan, J.; G. v. Director of Public Prosecutions [1998] Q.B. 919 at 926 per Phillips, L.J.; Farrell v. The Queen (1998) 72 A.L.J.R. 1292 at 1299 per Kirby, J.). I assume that her Honour was prepared to admit the opinion of Fagan, consistently with the principles explained in these authorities, to assist the jury in forming a view as to the reliability of the complainant’s evidence. It thus became part of the evidence before the jury upon which they were to make their ultimate conclusions.
Mr. Fagan did not suggest that a child of the complainant’s years was incapable of giving truthful evidence. Rather, the thrust of his evidence was that, because a child so young is impressionable and open to influence and suggestion, extreme care has to be taken in eliciting information lest the truth becomes lost in the suggestion and influence. Repeated interviewing, he said, had a tendency to distort the truth. He told the jury that there were accepted practices for obtaining information from young children which, at least in the interview with Ms. Williams on 23 August 1996, were honoured in the breach rather than the observance. The accepted practice was, it was said, to be found in the guidelines which had been laid down by the Home Office and the Health Department in England and based upon the recommendations made by Dame Elizabeth Butler-Sloss in her Ladyship’s Report of the Enquiry into Child Abuse in Cleveland (1988). It would seem that these “Cleveland Guidelines” inform the practices which are now followed in pre- recording evidence-in-chief of children pursuant to s.32A of the Criminal Justice Act 1988 (Eng.) which is a procedure similar to, but not the same as, the procedure contained in s.37B of the Evidence Act (Vic.). Mr. Fagan said that the interview which Ms. Williams had conducted with the complainant on 23 August had breached these guidelines in almost every respect because the interviewer had not approached the interview with “an open mind”; the interview did not support “free recall” and it was conducted in the presence of the complainant’s mother. Although Mr. Fagan did not criticize the manner in which the “s.37B interview” was conducted, he expressed the view that it was likely to have been “contaminated” by the events which had preceded it.
As I have earlier noted, the jury were not bound to accept the opinion of Mr. Fagan, nor were they bound to conclude, on the basis of it, that the complainant’s evidence was unreliable. As Phillips, L.J., in giving the judgment of the Divisional Court in G. v. Director of Public Prosecutions, supra, said in respect of submissions similar to those made to this Court (at p.926):
“Where the guidelines … have not been followed, evidence of young children can be dangerously suspect. This is a legitimate area for expert evidence, although this will be of much greater value to a jury with no knowledge of the topic than to … a judge who may have had great experience of it.”
His Lordship then referred, with approval, to a passage in the judgment of the Court of Appeal in the case of R. v. Davies (unreported, 3 November 1995) where Swinton Thomas, L.J. had said:
It is fundamental that experts must not usurp the function of the jury in a criminal trial. Save in particular circumstances, it is the task of the jury to make judgments on the questions of reliability and truthfulness. Particular circumstances arise when there are characteristics of a medical nature in the makeup of the witness, such as mental illness, which would not be known to the jury without expert assistance. Those circumstances do not arise in the case of ordinary children who are not suffering from any abnormality. It may well be open to parties to call general expert evidence in relation to the Cleveland Guidelines and, for example, to tell the ... jury that over-interviewing as a matter of generality has been shown by expert research to have a much more adverse effect on children than on adults but the witness cannot express an opinion on whether a particular child witness is a reliable or truthful witness. This is precisely the province of the jury in a criminal case … .”
In the light of the matters to which I have referred I am not persuaded that, given proper directions, the jury was bound to entertain a reasonable doubt as to the applicant’s guilt. The evidence of Mr. Fagan was only part of the material which the jury had before it in considering the reliability of the complainant’s evidence. There is nothing on the face of the complainant’s recorded evidence, which this Court has seen, which would suggest that it is unworthy of belief. The impact upon the reliability of her evidence of other interviews and “counselling sessions” must ultimately be a matter for the jury, again in the context of proper directions given to them by the judge. If the jury accepted the evidence of L.S. that the statements attributed to the complainant had been spontaneously made by her, the jury was entitled to have regard to the consistency between those statements made before any “interference”, and her evidence-in-chief in assessing the complainant’s reliability. The jury were also entitled, in my view, in assessing the reliability of the complainant to have regard to the other matters in the evidence to which I have previously referred, which were capable of supporting her evidence.
For the reasons given, ground 4 has not been made out and I reject the applicant’s submission that the verdicts are unsafe. Mr. McArdle submitted that, if the Court concluded that ground 5 was made out on the ground that there was a want of proper directions, we should nevertheless conclude that no substantial miscarriage of justice has occurred. I am not able to accept that submission. In my view, the failure to give the warning which I have concluded should have been given in this case was a significant omission and I am not satisfied that the applicant has not lost a fair chance of acquittal as a consequence of it (cf. Wilde v. R. (1988) 164 C.L.R. 365 at 371-2). Consistently with this view there will have to be a new trial. It is unfortunate that it should be so, but the alternative is not open.

CHARLES, J.A.:

I have had the considerable advantage of reading in draft the reasons for judgment of the President in this matter and gratefully adopt his statement of the facts. I agree with the President that this appeal must be allowed and the convictions below quashed for the reasons he has given. In my view the passages from the judge's charge quoted in pars. [28] and [30] of the President's reasons did not amount to a proper discharge of the judge's obligation to warn the jury appropriately of the risks involved in acting on the complainant's evidence. I agree that a very clear warning carrying with it the authority of the judicial office was required, and my only hesitation has related to the ancillary question whether this Court should direct an acquittal on all charges or a new trial of them. Although I am persuaded by the President's reasons for concluding that a new trial should be ordered, I desire to add these comments on the issues likely to arise in any re-trial, in light of the extensive arguments during the appeal directed to such issues.
I also agree with the President that leave should not be granted to add the two additional grounds upon which Mr. Tehan sought to rely. In addition to the President's reasons, there is the further consideration that no exception was taken by defence counsel after the judge's charge, as to which see R. v. Wright [1999] VSCA 145. In my view, however, the facts of this case were such as to make it necessary for a Kilby direction (Kilby v. The Queen (1973) 129 C.L.R. 460) to be given, having regard to the age of the complainant, the fact that she did not allege that the applicant was responsible until some 12 days after the alleged offence, the fact that the complainant showed no signs of hurt or distress at the time of her return by car from Alexandra with the applicant, and the further fact that she had been threatened by her mother with being smacked before she first made complaint against the applicant. When the judge dealt with delay however, her Honour directed the jury in accordance with s.61(1)(b) of the Crimes Act 1958, but made no comment in accordance with s.61(2), that the delay was a fact which the jury could take into account in evaluating the complainant's testimony and in determining whether to believe the complainant. See R. v. Miletic [1997] 1 V.R. 593, at 603-606.
Counsel for the applicant at trial submitted on the voir dire that the complainant's evidence in chief given by the VATE recording should be wholly excluded pursuant to the discretion given by s.37B(4) of the Evidence Act 1958. The judge declined to exclude the recording in the exercise of her discretion and Mr. Tehan for the applicant did not challenge her Honour's ruling in this appeal. He argued, however, that the complainant's evidence was so unreliable that the jury could not, or should not, have acted upon it; and furthermore that her evidence was rendered so unreliable by the repeated interrogation procedures that the jury were bound to disregard it. One of the answers to these submissions made by Mr. McArdle for the Crown was that the Crown case was a very strong one and that the evidence was sufficient to support the convictions even if the complainant's evidence had been wholly excluded.
There was, I think, a considerable Crown case against the applicant on the charges, for the reasons given in par. [40] of the President's reasons, and the matters to which the President has there drawn attention were clearly capable of providing confirmation of the complainant's evidence. But I do not agree that convictions could have been sustained on any of the charges if the complainant's evidence had been excluded. A conviction on counts 1, 3 and 4 of the presentment depended wholly on the child's evidence. As to count 2 there was a body of evidence before the court which necessitated the most careful scrutiny of the complainant's allegations. After the complainant returned from the car trip with her father from Alexandra during which it was alleged she had been assaulted, she made no complaint of pain or having been hurt. Thereafter she was taken out in the car by her mother for a substantial period - according to the applicant more than an hour. No one suggested that the girl showed signs of hurt or distress in the remainder of the day. The next day blood was found on her leggings, and after examination the injury to her hymen was discovered. The child had herself, some 18 months beforehand, damaged her hymen with a Texta pen. She first accused the applicant of being responsible some 12 days later, following a threat by her mother, in circumstances clearly not amounting to a spontaneous or fresh complaint. There was considerable ill-feeling between the applicant and the mother, and the latter had applied a degree of pressure to the child to obtain allegations against him. The applicant, who denied on oath the allegations made against him by the complainant, asserted that the story had been implanted in the child's mind by her mother, who was desperate to exclude him from her life and contact with the children. Other possible grounds for questioning the case made against the applicant are set out in pars. [36] and [39] of the President's reasons.
If the applicant is to be re-tried on the present charges, and if it be assumed that the complainant's evidence is not to be given on oath, the judge will first require to be satisfied under s.23 of the Evidence Act that the complainant (a) understands the duty of speaking the truth, and (b) is capable of responding rationally to questions about the facts in issue. Section 37B of the Evidence Act contemplates (sub-s.(3)(c)) that the complainant will attest to the truthfulness of the contents of the recording and be available for cross-examination.

Section 37B was introduced by the Crimes (Sexual Offences) Act 1991. The discretion given by sub-s.(4) is in general terms and no assistance is to be found in the Parliamentary debates as to its intended ambit. The right of an accused to receive a fair trial according to law is a fundamental element of the criminal justice system in Victoria: Jago v. District Court (N.S.W) (1989) 168 C.L.R. 23, at 29, 56, 72 and 75; Dietrich v. The Queen (1992) 177 C.L.R. 292, at 299, 326, 353 and 362. A natural assumption is that Parliament intended by sub-s. 37B(4) to preserve the existence of a discretion in a court to exclude evidence of this kind at least insofar as necessary to ensure a fair trial. Relevant for present purposes is, first, the discretion to exclude evidence where its prejudicial effect exceeds its probative value and, secondly, the residual discretion to reject any evidence if the strict rules of admissibility would operate unfairly against the accused. Cross on Evidence, 5th Australian edition, 1995, gives in par. 11125, as an example of the latter, the case where the weight and credibility of the evidence cannot be tested, at the same time observing that the unreliability of a witness has been held not to attract the discretion on the ground that this would interfere unduly with the division of function between judge and jury. See, e.g., Rozenes v. Beljajev [1995] 1 V.R. 533, at 556-557.
There is not a little authority supporting the existence of a discretion to reject evidence based on an inability to test it by cross-examination. In Dietrich, Gaudron, J. at 363 said that evidence might be excluded –
"because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury."
Pattendon, Judicial Discretion and Criminal Litigation, 2nd ed. (1990) at 233 also
says that –
"Evidence is prejudicial ... if there is a real risk that it will contribute to an erroneous verdict, either because its weight and credibility cannot be effectively tested by the defence or because it may be misused by the jury."
In Rozenes v. Beljajev, Brooking, McDonald and Hansen, JJ., after quoting both these observations, said at 557 that –
"It is the inability to cross-examine that may in all the circumstances of a given case cause the statement to be excluded in the interests of a fair trial. It may be possible to bring the example, as Pattendon would, within the 'prejudice outweighing probative value' principle, but we are disposed to think it is better to say that, if such a statement is excluded, this is done to secure a fair trial."
Mr. Tehan, as I have said, did not challenge the judge's decision to admit the testimony of the complainant in the course of his argument. Accordingly, although a number of relevant issues were canvassed during argument on the question whether this Court should now enter an acquittal, the correctness of her Honour's decision was not specifically called into question during argument.
If the applicant is re-tried on the present charges and the prosecution again proposes to have the complainant's evidence-in-chief given by production of the VATE tape, the judge will immediately be faced again with the question whether to rule the tape inadmissible under s.37B(4). The evidence before the judge must inevitably be different from that on which the decision in the first trial was made. The complainant was just five years old when the offences were allegedly committed on 6 August 1996. The VATE tape was made on 4 June 1997, some ten months later. When the complainant gave evidence in March 1999, she was then nearly eight years old. On the assumption that a re-trial takes place early next year, the complainant would then be aged between eight and nine years old. Her ability and willingness to answer questions in cross-examination will probably not be the same as in March 1999. The complainant may have undergone further interviews in relation to the events of 6 August 1996. To assess whether the complainant is able to answer questions in cross-examination, the judge will have the assistance of the transcript of the evidence given by the complainant during the first trial, a significant advantage denied to the judge in the first trial when she was considering whether to admit the VATE tape into evidence.
It will then presumably be necessary for the judge to consider the probative value of the evidence on the VATE tape, in order to determine, in the context of all the circumstances of the case, whether that evidence has more prejudicial than probative value. A second issue for the judge will be whether the evidence given in this way by the complainant can be effectively tested by cross-examination. The inclusion of sub-s.(3)(c)(ii) in s.37B makes it clear that the legislature contemplated that a witness whose evidence is given by means of a VATE tape will be subjected to cross-examination, a necessary inference from which in my view is that the section works on the assumption that cross-examination of a meaningful kind will occur, not questioning made meaningless by virtue of the witness's inability or unwillingness to answer questions.
These issues will, for the reasons I have given, be decided on different material than was before the trial judge and this Court. The question whether the complainant's evidence had been contaminated by the 40 or so interviews to which she had been subjected was, however, debated at length in this Court. Having examined the various versions of her evidence made available to us, it was, I think, quite possible to draw either one of two quite contradictory conclusions, namely that there was a consistent thread running through her evidence which both established the guilt of the applicant and also that her evidence had not been contaminated, or alternatively that there were sufficient inconsistencies and variations in her evidence (such as those referred to in par. [36] of the President's reasons) to lead to serious concerns as to the extent to which her evidence had been contaminated.
Mr. Tehan placed considerable reliance on Mr. Fagan's evidence, and the Cleveland guidelines which were laid down after Dame Elizabeth Butler-Sloss's inquiry into child abuse in Cleveland. Although these recommendations have as yet no place in the law in Victoria, they provide, if I may say so with respect, eminently sensible guidelines as to the conduct of interviews with young children. Mr. Tehan submitted, with, I thought, considerable justification, that a number of these guidelines had clearly been transgressed, or at least seriously departed from, in the interviews which had been conducted with the complainant.
In Warren (1994) 72 A.Crim.R. 74, the Court of Criminal Appeal of New South Wales considered tape-recordings of evidence given by a five-year-old boy identifying the appellant as the person who had caused him internal injuries and external bruising. While the boy was in hospital recovering from his injuries, he was repeatedly asked questions by his parents as to how he had been injured, saying that he knew that both his mother and father wanted him to identify the appellant as the culprit. Furthermore there were tape-recordings admitted of interrogations of the boy conducted by the police officer in charge of the investigation, as well as by his mother, which preceded the boy's identification of the appellant as the person responsible for his injuries. Hunt, C.J. at C.L. said of this evidence at 83 that –
"The police officer appears to have learned nothing at all of the dangers of contaminating the evidence of very young children by suggestions made to them in the course of an interrogation, dangers which had been so widely discussed following the failure of the notorious 'Mr. Bubbles' prosecution, referred to briefly in AG (NSW) v. TCN Channel Nine Pty. Ltd. (1990) 5 B.R. 10. His main purpose appears to have been to obtain evidence of sexual assaults by the appellant, but there could have been no doubt (even in the mind of a five-year-old boy) that he was suggesting that it was the appellant who was responsible for his injuries.
But nothing which the police officer said could match the intensity of the sustained attempt by the boy's mother to have him identify the appellant as the person responsible. The interrogation goes on and on in the most forceful manner. The probability of contamination was so great that little if any weight could safely be placed upon the boy's eventual identification of the appellant. This case illustrates yet once more the dramatic need for the procedures for the interrogation of very young children to be re-assessed in order to prevent the contamination and consequential destruction of evidence which could otherwise have been given of criminal activity in this type of case. Some work has been done, but tragically the dangers of contamination remain present."
As the President has said in his reasons at par. [33], the applicant was effectively deprived of any realistic opportunity of testing the credibility and reliability of the complainant's evidence through cross-examination. Mr. Tehan identified a large number of questions in cross-examination to which no audible response was obtained from the complainant and at least ten issues of significance on which counsel attempted to cross-examine the complainant, but in effect failed to obtain any response. I entirely agree with the President that the cross-examination was unproductive and with his conclusion that cross-examination of the complainant was not a viable option in this case and, if anything, was counter- productive.
If on any re-trial the judge is called upon to exercise the discretion under s.37B(4) of the Evidence Act, among the matters relevant to the exercise of that discretion will presumably be for the judge to make an assessment in the context of the whole case of the probative value of the VATE tape evidence to be given by the complainant, and to decide whether, having regard to the difficulties in cross- examination of the complainant likely to be encountered, the prejudice resulting to the accused both from any contamination of her evidence and from any inability to probe the credibility and reliability of the complainant and her evidence by cross- examination, is capable of rectification by clear warnings carrying the full weight of judicial authority.
After the hearing of this application was completed, counsel drew to our attention a decision of the Nova Scotia Court of Appeal (Roscoe, Bateman and Cromwell, JJ.A.), delivered on 19 February 1999, and now reported at 135 CCC (3rd) 377. The conclusions arrived at by that court, and the rule suggested at 400-401 (quoted by the President at [37]) are, I think, substantially to the same effect as the previous paragraph.

CHERNOV, J. A.:

I have had the advantage of reading in draft the reasons for judgment of Winneke, P. and Charles, J.A. and agree, for the reasons given by the President, that the appeal should be allowed, the conviction below quashed and a new trial ordered. In my view, for the reasons given by the President, the judge’s charge was insufficient to discharge her obligation to warn the jury of the risks involved in acting on the complainant’s evidence. A warning along the lines set out in paras.[32] and [37] of the President’s judgment should have been given to the jury in order to avoid what would otherwise have given rise to a perceptible risk of an unfair trial. See also Robinson v. The Queen [1999] HCA 42, paras.[24] and [25]. I also agree with the President that if the jury had been properly directed, they would not have been bound to entertain on the whole of the evidence, a reasonable doubt as to the applicant’s guilt. I only wish to add a few comments on some of the issues that have been raised during the hearing of the appeal.
There were two grounds of appeal argued before us. The first (ground 4) alleged that the jury’s verdicts were unsafe and unsatisfactory given, essentially, the unreliable nature of the complainant’s evidence. The second ground argued (ground 5) was concerned with her Honour’s failure to give the jury a proper direction in relation to the complainant’s evidence. There were two further grounds which Mr. Tehan sought to add at the commencement of the hearing of the application. I agree that, for the reasons given by the President and Charles, J.A., leave should not be granted to add the proposed new grounds.
One of the issues which was canvassed during the hearing of the appeal, albeit indirectly, was her Honour’s refusal to exercise her discretion under s.37B(4) of the Evidence Act to exclude the VATE tape from the evidence. Although Mr. Tehan did not, in terms, challenge that ruling, in the course of his submissions under ground 4 he dealt with some of the contentions that were raised in support of the application to her Honour to have the VATE tape evidence ruled inadmissible. In that context, he raised, for example, the Cleveland Guidelines and their relevance to this case as well as the relevance and effect of Mr. Fagan’s evidence which he claimed, cast considerable doubt on the reliability of the complainant’s recollection of the events in question.
In my view, accepting for present purposes that the Cleveland Guidelines lay down the appropriate standard in accordance with which young complainants or prospective complainants should be interviewed about an alleged or suspected offence, the evidence before her Honour on the voire dire did not bear out that any interviews with the complainant which involved transgressions of the Guidelines, contaminated her mind to the extent that her evidence was not fit to be placed before the jury. The situation may have been different had the complainant been subjected to a string of interviews of that nature before she made her first complaint or if she had been interrogated in a forceful manner by her mother as the young complainant was in Warren (1994) 72 A.Crim.R. 74, to which Charles, J.A. referred in his judgment. But that was not the case here. It was open to the jury to conclude that she was not interrogated by her mother in a forceful manner. Further, the complaint to the mother was made before the complainant was subjected to repetitive interviews so that even on the applicant’s case, when she first complained, her recollection could not have been relevantly affected by what others said to her. Moreover, the substance of her evidence as recorded on the VATE tape was broadly consistent with what she told her mother on 21 August 1996. Even Mr. Fagan tended to accept that if what the complainant told her mother was said before the commencement of the multiple interviews and if it was consistent with her later evidence on the VATE tape, that could be taken as demonstrating the credibility of her recollection. In the circumstance, it is my view that her Honour did not err in refusing to exclude the VATE tape.
In cases such as the one under consideration, the impact of evidence of experts like Mr. Fagan is sometimes accorded a greater status than it deserves. His evidence was part of the material that was placed before the jury in order to cast doubt on the truthfulness and accuracy of the complainant’s evidence. There was other material which could have been regarded by the jury as casting doubt on the reliability of the complainant’s version of events. It included evidence that she showed no signs of distress when she returned home from Alexandra with the applicant, the discrepancies between the various accounts she gave of the events at the cemetery and in the applicant’s car during the period leading to the recording of the VATE tape as well as other matters which are identified by the President in paras.[33] and [36] of his reasons. In addition, there was the opinion of Mr. Fagan that if a young child was subjected to repetitive interviews about an event over a lengthy period of time (which occurred in this case) it was likely to put at risk his or her ability to retain an independent and accurate recollection of it. He was particularly critical of the methodology adopted by Williams during her recorded interview of the complainant (but that took place after she had made her complaint to her mother). As the President pointed out in paras.[41-44] of his reasons, Mr. Fagan’s evidence could not have been determinative of the issue of the reliability of the complainant’s evidence. That was a matter for the jury to resolve having regard to all the evidence, including Mr. Fagan’s opinion, which they were free to accept or reject. There was, of course, other evidence which supported the complainant’s version of events and which the jury could have accepted. This evidence, which is confirmatory of the complainant’s version is set out in para.[40] of the President’s judgment.
The next matter I desire to mention relates to the potential for a miscarriage of justice to occur in a trial of this nature, where the accused is charged with offences involving alleged sexual impropriety in respect of a young child. The potential for that arose here, in part, from the forensic disadvantage which was imposed upon the applicant as a result of a cumulation of circumstances. First, under s.37B of the Evidence Act, the complainant was able to give her evidence otherwise than in the immediate presence of the jury and the applicant. Her evidence-in-chief was given principally by means of a video tape and she was located in another room during her cross-examination. Moreover, the VATE tape procedure was such that some of the evidence was given in response to leading questions. All this was a significant departure from the procedure that is usually required to be followed, absent a statutory dictate to the contrary, in order to secure a fair trial to the accused. As the President has highlighted, the potential for further and greater unfairness arose from the inability of the applicant’s counsel meaningfully to cross-examine the complainant as to the weight and reliability of her evidence due to her refusal to answer, or answer responsively, a number of questions put to her during cross- examination. On one view, some of the appellant’s responses were not surprising given the form of the questions that were put to her. Be that as it may, however, the complainant’s young age and her demeanour produced the risk that the applicant’s cross-examination, however skilful, would not have effectively tested the weight and credibility of her evidence. The disadvantage to the applicant was all the more acute given that its reliability was, on one view, open to doubt. These circumstances alone called for an appropriate direction to the jury. To these circumstances must be added the particular features of the complainant’s evidence which are identified in para.[33] of the President’s reasons.
If the applicant is to be re-tried on the present charges then, as Charles, J.A. has correctly pointed out, some of the evidence at the second trial will be relevantly different from that which was presented at the first trial. On the whole, however, it might be expected that the evidence-in-chief of the prosecution witnesses will be to the same effect as that given by them at the first trial. This will be particularly so in the case of the complainant if her evidence-in-chief is again presented by way of a VATE tape. The same observation may be made as to the applicant’s evidence at any re-trial, should he elect to give it. Assuming that the complainant’s evidence-in-chief is again given primarily by means of the VATE tape, the question may again arise whether her demeanour during cross-examination will give rise to a risk of miscarriage of justice unless the judge takes appropriate steps to re-dress that position. If that situation arises, it should be borne in mind that for the reasons given by the President, it was sufficient in this case that a proper direction be given to the jury and that they determine on the whole of the evidence whether to accept or reject the complainant’s evidence. The jury’s role was emphasised by the President in para.[41] of his judgment. In this context, it is also relevant to bear in mind what was said by the Appeal Division of this Court, constituted by Brooking, McDonald and Hansen, JJ. in Rozenes v. Beljajev [1995] 1 V.R. 533, at 554, namely,
“The approach of the courts has been and should be one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge’s directions concerning the considerations, both general and particular, affecting its reliability, including of course in an appropriate case the matter of corroboration.”
Thus, assuming that in the context referred to earlier the complainant is similarly uncooperative during her cross-examination at any re-trial, there would be no unfairness to the applicant if the question of the reliability of her evidence were left to the jury, albeit with an appropriate direction, given that all the circumstances which might make her evidence unreliable, including her demeanour during cross- examination, would be properly exposed for their consideration.

JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	SHEPPARTON
DATES OF HEARING:	17 and 18 August 1999
DATE OF JUDGMENT:	19 November 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 184

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C.	Kerry R. Clancy