R v R W
[2008] VSCA 79
•16 May 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 315 of 2006
No 316 of 2006
| THE QUEEN |
| v |
| RW |
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JUDGES: | VINCENT, NEAVE and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 February 2008 | |
DATE OF JUDGMENT: | 16 May 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 79 | |
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CRIMINAL LAW – Applications for leave to appeal against convictions for rape, indecent assault of a child under 16 and two counts of indecent assault – Alleged offences occurred between 27 and 30 years ago and involved two complainants – Two separate trials –Longman warning in both trials inadequate – Appeal allowed and convictions on all counts set aside – Convictions for rape and indecent assault sustained in the first trial not unsafe and unsatisfactory – Re-trials ordered.
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| APPEARANCES: | Counsel | Solicitors |
| The Crown | Ms M M Williams SC with Mr C B Boyce | Miss A Cannon, Solicitor for Public Prosecutions |
| The Applicant | Mr D Just | Victoria Legal Aid |
VINCENT JA:
I agree in the disposition of these matters as proposed by Neave JA and I do so substantially for the reasons advanced by her in her judgment.
NEAVE JA:
On 8 May 2006, in ‘the first trial’, the applicant, RW, was convicted by a County Court jury of one count of indecent assault of a child under 16 (count 3) and one count of rape (count 7). He was acquitted, by direction, of another count of indecent assault of a child under 16 (count 6). The first trial related only to the complainant PS. On 23 May 2006, in ‘the second trial’, the applicant was convicted by another County Court jury of two counts of indecent assault (counts 2 and 5) involving a different complainant, NK.[1]
[1]The count numbers used throughout this judgment are those used in the presentment and in the learned sentencing judges remarks. Because the presentment included counts involving five complainants and there was an order for severance (meaning the trials relating to each of those complainants were conducted separately), the counts were described during each of those trials by new count numbers (for example, counts 3, 6 and 7 on the presentment were referred to as counts 1, 2 and 3 during the first trial, and counts 2 and 5 on the presentment were referred to as counts 1 and 2 during the second trial). For the purposes of consistency within this judgment, references in the trial transcripts and in counsels’ submissions to counts 1, 2 and 3 have been changed to correspond with the count numbers used in the presentment.
The applicant was sentenced by a judge of the County Court for the offences the subject of the first and second trials (ie. counts 3 and 7, and counts 2 and 5) at the same time. The learned sentencing judge sentenced the applicant to a total effective sentence of six years and three months, with a non parole period of four years and six months.
The applicant now seeks leave to appeal against his convictions and sentence. Because I consider that the appeals against conviction must be allowed it is unnecessary to discuss the application for leave to appeal against sentence.
Background
All of the alleged offences occurred between 27 and 30 years ago when the applicant was in his mid- 40s He is now aged 73.
The first trial (counts 3 and 7)
PS, the complainant in the first trial, was the niece of the applicant’s wife, RV. She was a ward of state, who had not lived with her parents since she was three years old. At the time of the alleged offences PS and her younger brother C were living with the applicant, her aunt, and the applicant and aunt’s children of earlier relationships. PS called her aunt RV, ‘mum‘, and described her cousins as her ‘sisters’.
The alleged indecent assault of PS (count 3) occurred between 14 April 1978 and 13 April 1980, when PS was 11 years old. PS’s evidence was that she took a cup of tea to the applicant in his bedroom, in their house at Fawkner. The applicant was then working on night shift at the Herald Sun and usually slept until mid-afternoon. She said that he pulled her under the covers in his bed, removed her underwear, moved his fingers back and forth in her vagina and touched her breasts. When she got out of the bed he said ‘Good girl, Bubby’.
The complainant said in cross-examination that when count 3 occurred it was the first time she ‘remembered something happening’. However the complainant also gave evidence of later uncharged sexual assaults which occurred after the family had moved to a house in Costerfield. The complainant’s evidence was that the applicant regularly came into her bedroom at about 9 o’clock in the evening, sat on her bed and put his fingers in her vagina.
The alleged rape of PS (count 7) occurred at the house in Costerfield between 14 April 1981 and 13 April 1983, when PS was 13 or 14 years old. PS’s evidence was that this occurred on the evening of a day when she had attempted to run away from home. Her aunt had discovered that PS had stolen $20 from her cousin NK and had disciplined her for doing so. PS said that on the evening of that day her aunt had left the house with other members of the family, leaving her alone with the applicant.
PS said that she was washing the dishes when the applicant grabbed her, tied her to a chair and removed her underpants, while she struggled against him. He then penetrated the complainant’s vagina with his penis and ejaculated inside her, before untying her. After the event occurred he said ‘Good girl Bubby’. The complainant left the house and went to live with another foster parent family about a month afterwards.
The second trial (counts 2 and 5)
The complainant in the second trial, NK, was the daughter of PS’s aunt, the onetime step-daughter of the applicant and the cousin of PS.
It was alleged that the first indecent assault (count 2) occurred between 1 June 1978 and 31 May 1979 when NK was aged 16. NK’s mother RV had lived with the applicant for a time, but then returned to her husband (NK’s father) in an attempt to reconcile with him. At that time NK was living with her father. NK’s evidence was that the applicant visited her mother at her husband’s home on a number of occasions, in an attempt to persuade her to return to him. On one occasion on a week night he came to her mother’s house and said that he didn’t want to be alone. NK agreed to stay in his house overnight. Although the applicant’s sons were living with him at that time, they were not in the house on that occasion. NK said that she put on her nightie and was sleeping in a bedroom in that house, when the applicant came into the room and said ‘Come with me Bubby’ and that ‘Mum said it would be OK’. When she got into his bed she was still half asleep. He then put his arms around her and began rubbing her vaginal area. She froze and then jabbed him with her elbow and moved to the edge of the bed. That was the subject of count 2.
The second count of indecent assault of NK (count 5) was alleged to have occurred between 1 June 1980 and 31 December 1980, when NK was 18 and she, her mother, the applicant and her cousins were living in two caravans on a property owned by friends. NK gave evidence that her mother had asked her to take a cup of tea to the applicant, who was in bed in one of the caravans. When she went into the caravan the applicant asked her to sit on his bed, told her he loved her and that he wished she was his, patted her on the leg and moved his hand to her vaginal area. She tried to get up but he pulled her down. Then he pushed her underpants aside and inserted his finger in her vagina. NK gave evidence that she had then gone to the toilet in the house on the property and had felt as if she was falling into a tunnel or losing her vision. Although the friends who owned the property were around the house, she did not make any complaint of the assault.
Grounds of appeal against conviction
The first trial
The grounds of appeal against the applicant’s convictions at the first trial (counts 3 and 7) were that:
(1)The learned trial judge erred in directing the jury and failed to warn sufficiently as to:
(a)the manner in which they ought to scrutinise treat and or consider the evidence of the complainant;
(b)the dangers of basing a conviction upon the evidence of the complainant.
(2)That the verdict of guilty on these counts was unreasonable and could not be supported having regard to the whole of the evidence.
The second trial
The first ground of appeal in the first trial also applied to the applicant’s convictions at the second trial (counts 2 and 5).
Grounds of appeal 3 and 4 were that:
(3)The learned trial judge erred in failing to direct adequately or at all on the effect of a failure of the complainant to have made a recent complaint.
(4)A miscarriage of justice occurred as a result of the introduction of inadmissible material by the prosecution in the trial, this being evidence of the existence of a poster sent by the applicant to the complainant.
Ground 1 - Was there a failure to give an adequate Longman warning?
Counsel submitted that in both trials her Honour failed to give an adequate Longman warning. As I explain below, the jury directions given by her Honour in both trials were very similar.
The jury charge in the first trial
In her jury charge at the first trial her Honour referred to defence counsel’s submission that it was improbable that the allegations made by PS had actually occurred. She first commented that:
[I]t is probably common sense that where there is only one witness who gives direct evidence against an accused person, there is a potential danger to convict without the presence of some other evidence which confirms the evidence. That is evidence independent of a complainant’s evidence which would tend to confirm her version of events, not only that the crime is committed upon the complainant but that it was the accused man who committed the crime.
She then told the jury that it was unusual to have another eye witness for these types of offences and continued as follows:
As fact finders you need to be fully aware of the dangers of convicting on the evidence of one witness unless after careful scrutiny [sic] of the evidence you are satisfied of its truth and accuracy. In any case where there is no external evidence to support a witness as to an offence being committed and who it was that committed an offence against them, you have to consider the potential for error. I should point out 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 the potential for error becomes greater.
Her Honour went on to say out that it was necessary for the jury to use their experience and commonsense to assess the evidence and that there was a risk that ‘some people may have motives or hidden reasons for falsely accusing persons of crimes’. This required the jury to scrutinise the evidence carefully.
Later in her charge she referred to the long delay in prosecuting the offences and the fact that this delay may have had an effect on the memory of witnesses. She said:
Remind yourself constantly that the Crown bears the onus of proof and remember in this case each of the two witnesses[2] are recounting events which occurred 28 or 25 years ago when the complainant was quite young and consider what effect that would have if you consider it had any effect on the complainant, about her recollection upon the inconsistencies which have appeared in the evidence.
It would be denying common sense to suggest that times such as the years we are dealing with here, would not have some part to play in a faulty recollection of details. That is simply common sense but you have to make your assessment as to what effect that may have on the evidence and what you accept overall. As I have said there has been a long delay in prosecuting these offences and that is since the time of the offences are alleged to have occurred, the time since they were reported to police and now the time that they have come before you in a trial. In all cases where a witness is talking about events that occurred a long time ago, you have to consider the effect that may have had upon their memory and on the memory of any other witness involved. As I have said it is common human experience that time does have an effect on memory and it does fade over time.
Honest people do sometimes convince themselves that some incidents occurred in the past in a particular way. One cannot ignore the effect human imagination, emotion, prejudice or suggestion can have on memory of events after years but it is also common human experience that sometimes things will stick in a person's mind and they will never fade and they can accurately recall particular incidents with clear detail and they can swear to them sufficiently to have a jury believe that what they are saying after they have given evidence, is in fact true.
[2]This referred to PS and her aunt RV.
Her Honour then alluded to the difficulties faced by police in investigating events said to have occurred many years ago and to the forensic disadvantage faced by the accused. She said:
Consider the fact that in this case, because no statements were taken close to the events, the police have lost the ability to accurately investigate the events and they have lost the ability to search for any physical evidence or locate witnesses who may have been relevant. It is not only the police investigation that is [a]ffected, members of the jury, but the accused man has lost the chance to establish facts and circumstances which may have helped him to disprove the complainant's allegations.
Although it is obvious he has no onus to do so, it is clear that if it were closer to the event he may have been in a position to make some investigations and obtain any material that might have been relevant to his defence. You have to consider what it is that that effect may have had upon the ability to meet the Crown case in this trial.
Having referred to the matters which provide the basis for the requirement of a clear warning about the effects of delay, including the age of the complainant when the events occurred, the effect of delay on her memory and the ways in which the passage of time affected the ability of the applicant to defend himself, her Honour gave a Longman warning in the following terms:
I direct you that it would be dangerous to convict the accused on the uncorroborated evidence alone unless, after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, are satisfied of its truth and accuracy [sic]. The delay does not necessarily mean that the complainant’s allegations are false but you are entitled to take the delay into account in assessing the complainant’s credibility but remember that there may be good reason why a victim of a sexual assault may delay or hesitate in complaining.
In these directions her Honour purported to give both a Longman warning about the dangers of convicting in cases of delay and a Kilby[3] warning about the effects of delayed complaint on the complainant’s credibility. The Kilby warning was given to balance the effect of the direction her Honour was required to give under Crimes Act s 61(1)(b), that there may be good reasons why a victim of sexual assault may delay or hesitate in complaining about it.
[3](1973) 129 CLR 460.
Counsel’s submissions
Counsel for the applicant submitted that the extended and discursive nature of the remarks made by her Honour before she gave the Longman warning had diluted the effect of the warning to the point that the jury would not have understood it was a binding direction of law. It was contended that her Honour’s explanation of the basis of the warning as ‘probably common sense’ undermined the effect of what she said later in her charge. The same was said of her Honour’s reference to ‘the potential for danger’ in convicting on uncorroborated evidence, and her comments that it was ‘very common that there is not going to be another witness to the events in question’ and that it was not necessary as a matter of law for there to be evidence supporting the complainant’s story.
It was also submitted that PS‘s youth and the delay of more than 27 years since the alleged offences had occurred made it necessary for her Honour to give a Longman warning in the strongest possible terms. Counsel contended that the warning given by her Honour did not adequately deal with the serious forensic disadvantage faced by the accused in these circumstances.
In support of these submissions, counsel relied primarily on the decision of the High Court in Crampton v R[4] and the decision of this Court in R v KJ.[5] In these cases it was held that the trial judge had not adequately drawn the jury’s attention to the forensic difficulties faced by a person who is accused of sexual offences many years after they are alleged to have occurred and had not given the jury a sufficiently strong warning about the danger of convicting the accused where there has been such a delay. Counsel submitted that in this case, the learned judge should have referred to the difficulties faced by the applicant in establishing an alibi by showing that he would have left for work at the time some of the alleged acts were said to have occurred.
[4](2000) 206 CLR 161, 181 (Gaudron, Gummow and Callinan JJ).
[5](2005) 154 A Crim R 139. Counsel’s written submissions also relied on the High Court decision in Longman v R (1989) 168 CLR 79 and the Court of Appeal decisions in R v Glennon (No 2) (2001) 7 VR 631, 667 (Ormiston JA) and R v W E B (2003) 7 VR 200.
Counsel for the Crown said that her Honour had expressed the Longman warning in strong terms, which would have been understood by the jury to be binding on them. Her Honour’s remarks about the ‘potential for error’ had not diluted the warning. It was common ground that the applicant and the complainant had lived under the same roof for many years, so that the applicant had had ample opportunity to commit the offences. The evidence of the aunt RV about the time the applicant usually left for work when he was living in Costerfield had not been seriously challenged and the complainant’s allegations that any offences necessarily occurred after 9.00pm in the evening was not an essential component of the Crown case. In these circumstances it was not necessary for her Honour to specifically warn the jury that the defendant was disadvantaged because he had been unable to adduce evidence of his work schedule at the time of the alleged offences. Finally, counsel pointed out that the applicant’s counsel at trial took no exception to the directions.
Was the Longman warning in the first trial adequate?
Where there has been a lengthy delay in complaint, the law requires a Longman warning to be given ‘in clear and unmistakable terms’.[6] This requirement is based on two ‘dangers’ which it has been thought that members of the jury may not understand.[7]
[6]Crampton v R (2000) 206 CLR 161, 209 (Kirby J), 181 (Gaudron, Gummow and CallinanJJ).
[7]See Longman v R (1989) 79 CLR 79, 91 (Brennan, Dawson and Toohey JJ); Crampton v R (2000) 206 CLR 161, 209 (Kirby J).
The first danger is that the jury may not fully appreciate the effect of delay on the memory of witnesses, and particularly on the complainant’s memory.[8]
[8]See, for example, Longman v R (1989) 79 CLR 79, 101 (Deane J), 107 (McHugh J); Doggett v R (2001) 208 CLR 343, 377 (Kirby J).
In my opinion her Honour’s jury direction adequately warned the jury about the effect of the passage of time on memory. The learned judge prefaced her direction that
it would be dangerous to convict the accused on the uncorroborated evidence alone unless, after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, are satisfied of its truth and accuracy.
by telling the jury that
It would be denying common sense to suggest that times such as the years we are dealing with here, would not have some part to play in a faulty recollection of details
and that
it is common human experience that time does have an effect on memory and it does fade over time. Honest people do sometimes convince themselves that some incidents occurred in the past in a particular way.
I do not regard the discursive nature of the warning given in the first trial as sufficient, of itself, to undermine the strength of the warning, so far as it related to the effects of delay on memory.[9] A Longman warning which is recited like a mantra may be less likely to alert the jury to the dangers of wrongful conviction against which the warning is intended to guard, than a warning which explains the reasons that it was given.
[9]Compare R v Goss [2007] VSCA 116, [39] (Kellam JA).
Nor do I consider that that her Honour’s explanation of the basis of the warning as ‘probably common sense’, her statement that ‘it is also common human experience that sometimes things will stick in a person’s mind and they will never fade’ or her reference to ‘potential for error’ detracted from the strength of the Longman warning given later in her judgment. I note that Kellam JA recently reached the same conclusion about almost identical jury directions in R v Taylor (No 2) where he said that:
the remarks made by the judge in relation to the effect of time upon memory and recollections were no more than simple commonsense. The trial judge made it clear that the effluxion of time may have an effect upon memory. I see no deficiency in this part of her Honour’s directions.[10]
[10][2008] VSCA 57, [81].
The second ‘danger’ which is said to be addressed by the Longman warning is the forensic disadvantage faced by an accused where there has been a lengthy delay in making a complaint.[11] The rationale was explained by Kirby J in Crampton as follows:
The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time — especially great time — may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms.[12]
[11]Longman v R at 91 (Brennan , Dawson and Toohey JJ), 100 ( Deane J), 108 ( Mc Hugh J) .
[12](2000) 206 CLR 161, 209 (Kirby J) (citations omitted). See also 181 (Gaudron, Gummow and Callinan JJ), 211 (Hayne J); Doggett v R (2001) 208 CLR 343, 356 (Gaudron and Callinan JJ) 376 (Kirby J); R v Mazzolini (1999) 3 VR 113, 124 in which the need to give a warning is explained by Ormiston JA on the basis that the jury may not fully appreciate the reasons which underpin the warning.
In Doggett v R[13] the majority of the High Court[14] held that the requirement to give a Longman warning applied to sexual offences alleged to have been committed against a child up to 18 years earlier, even though a telephone call in which the accused told the complaint he was ‘sorry the whole thing happened’ was capable of corroborating the complainant’s story that he had sexually abused her.
[13](2001) 208 CLR 343.
[14]Gaudron, Kirby and Callinan JJ, Gleeson CJ and Mc Hugh J dissenting.
In the instant case her Honour’s warning about the dangerousness of convicting (see para [23] above) and her reference to the forensic difficulties faced by the accused man (see para [22] above) was preceded by a statement that, because of the delay
the police have lost the ability to accurately investigate the events and they have lost the ability to search for any physical evidence or locate witnesses who may have been relevant.
In R v MWL[15] this Court held that a jury direction adverting to the problems which the police would confront in investigating the alleged offences because of delay did not sufficiently bring home to the jury the forensic difficulties faced by the accused in defending himself against the allegations. In that case the trial judge had said that:
The difficulty in remembering, of course, applies not only to the witnesses, but it also applies to the accused. The delay also means that there has been no statement taken from any of the complainants soon after the events which they have alleged. The police were not brought into the act until 2000, so the police have lost the ability to investigate the matter soon after the events allegedly occurred, or locate possible witnesses who may be able to give relevant evidence. They have lost the chance of further questioning a particular complainant to ascertain whether their story is consistent or whether it is inconsistent.
Not only have the police lost that chance, but of course the accused has lost the chance to establish facts and circumstances that might help him to disprove -- I use disprove in a special way, because he has no obligation to disprove, but to, if you like, dispute the complainants' allegations and the more so when a number of the counts which originally were on the presentment have been amending by altering the time frames.
Because there was no statement taken from any of these complainants at or about the time they say the events occurred, it is difficult to assess how that particular complainant as a child understood and recalled the events that occurred as a child.[16]
[15](2002) 137 A Crim R 282.
[16]Ibid 286.
His Honour later went on to say:
So, members of the jury, the circumstances to which I have adverted, that is the delay involved here, the nature of the allegations, the age of the complainants at the particular time, the problem of memory and faulty recollections, the matters of complaint, all those matters may point to the potential for error inherent in the evidence. I emphasise that I say potential for error. I am not saying that there is error. Questions of the assessment of the evidence are very much a matter for you, and the existence of the matters to which I have referred, however, are such that I as the trial judge are bound to tell you to give judicial authority to the comment that those circumstances must be earnestly considered by you.[17]
[17]Ibid.
After hearing an exception from defence counsel the learned trial judge re-directed the jury that:
In a case such as this where you have a situation of one person's word against the others, it is dangerous to convict without the presence of some other evidence which confirms or supports the particular complainant's evidence, and as I have told you that does not mean that you cannot convict in the absence of other evidence which confirms or supports a particular complainant's version. It simply means that you can only do so after carefully scrutinising that complainant's evidence and you are satisfied as to its truth and accuracy.[18]
[18]Ibid 287.
Buchanan JA, who delivered the main judgment in the appeal,[19] held that the Longman warning was inadequate. So far as the comments about the police investigation were concerned he said that he doubted
that the jury would have interpreted that statement as one directed to efforts by the police to critically examine the complaints rather than gather further evidence supporting the complainants. In my view, the explanation of the difficulties imposed upon the defence by delay was significantly diluted by a statement, which the jury may well have construed as excusing any deficiencies in the Crown case. Further, the warning, which the High Court has said is required in like circumstances, was reduced from one of the danger of convicting the applicant to a somewhat vague statement of the lapse of time creating a potential for error.[20]
[19]Phillips CJ and Phillips JA agreed.
[20]R v MWL (2002) 137 A Crim R 282, 287.
His Honour held that the judge’s redirection did not correct the deficiencies in the original warning, because it focused on the fact that this was a ‘word against word’ case, rather than directing the jury that the lapse of time handicapped the applicant in preparing his defence.
The reference in MWL to the investigative difficulties faced by the police is very similar to what her Honour said in this case. However, in this case her Honour also warned the jury about the dangerousness of convicting the applicant on the basis of the complainant’s evidence alone, later in her charge.
Counsel for the applicant also relied on the decision in R v KJ.[21] In KJ this Court held that the trial judge had not adequately warned the jury of the forensic difficulties faced by the accused.
[21](2005) 154 A Crim R 139.
In KJ the alleged sexual offending began when the complainant was six years old, about 25 years before the complaint was made. It continued for another six years. Osborn AJA, who delivered the main judgment, described the first part of the trial judge’s charge as follows:
The judge first went to the issue of delay shortly after commencing his charge, telling the jury that he intended to give them a warning and differentiating such warning from a comment. He then stated that it would be dangerous to proceed to judgment without a careful and cautious analysis of the evidence in a case such as the present because of the danger of error. He explained that he was talking about a process of reasoning and adopted the simile of an experienced driver warning an inexperienced driver to be careful in bad driving conditions. He concluded his initial warning in the following terms:
In a case like this it is for you to form your own views of what D said, but because of the delay and because of factors that have come with the passage of time, the difficulties that counsel has talked about, difficulties you can imagine yourself in terms of recollections and things like this, and I will come back to it and deal with it in more detail in a moment, and the fact that D is not supported by any other evidence, there is no other eye witness to these events, well then there is a need and the judicial warning is as an experienced trial judge saying to other trial judges which you are, in a case like this you should proceed carefully and cautiously before you make a decision one way or the other. That is all that the warning will be about, and I will come back to it and explain it more carefully.[22]
[22]Ibid 144.
Osborn AJA held that this initial warning did not meet the Longman requirements, because the trial judge had not referred to the fact that, because of the great delay in the case, the applicant could not adequately test the evidence against him, and because the trial judge had not sufficiently emphasised that it would be dangerous to convict because of the forensic disadvantage facing the applicant. In Osborn JA’s view the direction
amounted in substance to a warning to proceed carefully. It went to pains to emphasise no comment was being made about the evidence, when what was required was a warning concerning the character of the evidence.[23]
[23]Ibid 145. His Honour referred to R v Glennon (No 2) (2001) 7 VR 631, [91]; Crampton v R (2000) 206 CLR 161, [45].
Further, by comparing the warning to a matter of common sense practicality expressed by ‘an experienced judge to other trial judges’ (essentially similar to that which might be given by an experienced driver to an inexperienced driver) the direction had diminished the judicial authority with which ‘the relevant forensic difficulty and danger of wrongful conviction must be expressed’.[24]
[24]His Honour referred to R v WEB (2003) 7 VR 200, 215-216 (Winneke ACJ).
The trial judge in KJ went on to refer to the fact that neither the applicant nor the Crown could call evidence relevant to the circumstances surrounding the facts in issue, because of the passage of time. Osborn AJA considered that this passage continued the earlier deficiencies in the direction by treating the question of delay as bearing on the force of the evidence as a whole both from the defence and Crown point of view, commenting that ‘[i]t did not properly warn the jury as to the danger inherent in the forensic disadvantage necessarily suffered by the accused in meeting the charges against him’.[25]
[25](2005) 154 A Crim R 139, 147.
After then referring generally to the evidentiary problems which arose because of the 20 year delay the trial judge had said that the jury had ‘a reason for caution’ and continued as follows:
I will come back to the warning I have given you and I do not want to as I say, over emphasise the warning in a way that you misunderstand it, I want you to be precise and understand what the warning is about. The commonsense rule is that because of potential for error, judges are obliged to give juries a warning that it is dangerous for a jury trying a case that has no supporting evidence, it is the word of the witness who makes the accusation that is not supported by any other evidence and there has been a passage of time that will lapse because it's put in [addition] to the difficulty of people having an exact recollection of these events, some of the evidence might have disappeared. For those sorts of reasons, the law says that it is dangerous for a jury trying such a case to convict the accused where the evidence depends upon the unsupported version of an accuser. That does not mean you cannot convict in the absence of other evidence that corroborates or supports the witness' version. It merely means that you should only do so after you have subjected that evidence to the most thorough and careful examination. Only after that examination and you are satisfied beyond reasonable doubt of the guilt of the accused.[26]
[26]Ibid 147–8.
That statement was fortified by a further direction concluding the warning, which said that:
If after examining the evidence beyond reasonable doubt of the guilt of the accused in accordance with the warnings I have given you, you are satisfied of the guilt of the accused it would nevertheless be open to you to convict him of these offences. What I am saying to you, the point of the warning is it is about a process of reasoning of how you consider the evidence, it is not a comment upon the evidence as such. It is a trial judge saying to 12 other trial judges, in cases like this, there is a potential for danger and the way an experienced trial judge would look at the evidence is carefully, cautiously and thoroughly. If after carefully, cautiously and thoroughly examining the evidence of the witness such as D, you are convinced beyond reasonable doubt of the guilt of the accused will mean [that] it is open for you to convict the accused of counts. If you are not satisfied, the verdict should be one of not guilty. It is like, as I said earlier, the experienced driver saying to an inexperienced driver on Tuesday morning when it is raining "be careful don't speed when you're going past Malmsbury there are roadworks there it's been raining, that road can be dangerous at times." You are not telling the inexperienced driver that he can't proceed through Malmsbury on the way to Melbourne, you are saying to him an experienced driver in those circumstances would be careful, cautious and thoroughly consider the circumstances of the road before driving through.[27]
[27]Ibid 148.
Osborn AJA said that in reiterating the ‘careful driver’ reference made in the first part of his judgment and saying that he was not making a comment about the evidence, the learned trial judge had in effect ‘returned the jury to the first direction given’.[28] His Honour concluded that the final warning was inadequate because:
(a)It did not identify the forensic prejudice necessarily confronting the applicant.
(b)It amounted to a direction to proceed carefully.
(c)It did not adequately emphasise that it would be dangerous to convict in the circumstances of this case and reduced this necessary emphasis to a background consideration of "potential for danger".
(d)It reduced the warning to a matter of common sense practicality and materially diminished the judicial authority with which the relevant forensic difficulties and danger of wrongful conviction must be expressed.[29]
[28]Ibid.
[29]Ibid 149.
I consider that the warning given in this case was stronger than the warning in KJ. Her Honour did not simply tell the jury to take care in reaching its verdict or reduce the warning to a matter of commonsense practicality. Instead she directed the jury that ‘it would be dangerous to convict the accused on the uncorroborated evidence [of the complainant] alone’. She also made some reference to the forensic difficulties faced by the accused, though she did not explain these in detail.
In R v Taylor (No 2),[30] a recent case involving sexual offences allegedly committed between November 1986 and March 1988, this Court held that a very similar jury direction to the one given in this case was inadequate. Kellam JA, who delivered the main judgment, considered that there was a risk that the jury might have perceived her Honour’s reference to police investigations as referring to the difficulties which the delay created for the Crown in establishing its case against the accused, rather than to the fact that the delay had denied the applicant the ‘forensic weapons that reasonable contemporaneity’ might have provided.[31] His Honour said that:
her Honour’s directions had the effect of providing a balance between the interests of the prosecution and the interests of the applicant. The directions did not state clearly that the necessity for the warning arose because after many years delay the evidence of the complainant could not be tested adequately and that therefore the fairness of the trial was necessarily impaired.[32]
[30][2008] VSCA 57.
[31]Ibid [84]; [91], citing Crampton v The Queen (2000) 26 CLR 161, [45].
[32]Ibid [93].
I note that in Taylor (No 2), the learned trial judge referred to particular evidence which might have been helpful to the accused if it had been available. In this case, by contrast, her Honour did not do so in the context of the Longman warning, though she referred to inconsistencies in the complainant’s evidence and between the evidence of the complainant and her aunt elsewhere in her jury charge. In particular, her Honour did not tell the jury that if the applicant had been able to adduce further evidence about his work schedule which was contrary to the complainant’s evidence about the time and regularity of the uncharged acts, this might have been relevant to the jury’s assessment of the complainant’s credibility.
Finally, I note that, in this case, the defence counsel did not take exception to the jury charge or seek any re-direction. Although this did not relieve the trial judge from her obligation to warn the jury of the forensic difficulties faced by the accused, the fact that counsel did not perceive the charge as prejudicing his client is a relevant factor in deciding whether the Longman warning was adequate.[33]
[33]R v Goss [2007] VSCA 116, [36] (Kellam JA).
If I were not constrained by authority I would have been inclined to consider that her Honour adequately warned the jury of the forensic difficulties faced by the accused, despite the reference to the police investigations which preceded her Honour’s reference to those difficulties. I have some reservations about the view expressed by Buchanan JA in AWT, followed by Kellam JA in Taylor (No 2), that the reference to police investigations would have been regarded by the jury as referring only to the strength of the Crown case against the accused, rather than as indicating that police investigation at the time of the alleged offence might have revealed inconsistencies in the complainant’s evidence. However, having regard to the High Court and Court of Appeal decisions to which I have referred, I consider that I am obliged to hold that her Honour did not give the jury a sufficiently clear warning of the forensic difficulties faced by the accused in the circumstances of this case.
Although I consider that the application for leave to appeal must be granted and the appeal allowed I note that there has been considerable criticism of the way in which the requirement to give a Longman warning has been interpreted and applied. As Wood CJ at CL noted in R v BWT:
[The relevant passages in Doggett, Crampton and Longman] have been taken up, so it seems to me, as requiring that an instruction in equally positive terms, be given in every case involving a substantial delay, irrespective of whether or not there is any evidence, or basis beyond suspicion, that the absence of contemporaneity between the alleged offence and complaint, or trial has in fact (not “might have”) denied to the accused a proper opportunity to meet the charge or charges brought: see for example R v Roddom [2001] NSWCCA 168, R v GJH [2001] NSWCCA 128 and R v Roberts [2001] NSWCCA 163.
Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant’s evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way.
The difficulty which I have with this proposition is that it elevates the presumption of innocence, which must be preserved at all costs, to an assumption that the accused was in fact innocent, and that he or she might have called relevant evidence, or cross examined the complainant in a way that would have rebutted the prosecution case, had there been a contemporaneity between the alleged offence and the complaint or charge. That consideration loses all of its force if, in fact, the accused did commit the offence. In that event there would have been no evidence available of a positive kind, relating for example to the existence or ownership of the premises, or of a motor vehicle or other item, associated with the offence charged, or going to establish an alibi for the relevant.[34]
[34](2002) 54 NSWLR 241, [13]– 15]. The comments were reproduced in the Tasmania Law Reform Institute, Warnings in Sexual Offences relating to Delay in Complaint, Final Report No 8 (October 2006), 18.
His Honour went on to criticise the requirement that the jury be directed that it is ‘dangerous or unsafe to convict’ the accused in certain circumstances. He said:
any direction, framed in terms of it being “dangerous or unsafe” to convict, risks being perceived as a not too subtle encouragement by the trial judge to acquit, whereas what in truth the jury is being asked to do is to scrutinize the evidence with great care.[35]
[35]Ibid [34].
The joint Australian, New South Wales and Victorian Law Reform Commission Report on Uniform Evidence Law also criticised the law relating to Longman warnings,[36] and suggested that the warning required now comes very close to the corroboration warning required in sexual offence cases at common law.[37] Since the accused was presented for these offences Victorian law on Longman warnings has been substantially modified by amendments to Crimes Act 1958, s 61.[38]
[36]Report on Uniform Evidence Law, ALRC Report 102, NSWLRC Report 112, VLRC Final Report December 2005, 611–634 [18.72-18.146]. Note that the NSWLRC did not agree with the reforms proposed by the other two Commissions.
[37]Ibid 18.88.
[38]Amended by Crimes (Sexual Offences) (Further Amendment) Act 2006.
My observations do not, of course, affect the conclusion that the Longman warning given in this trial was, as the law stood at the time, inadequate. There does not appear to have been any forensic reason for counsel failing to take exception to this aspect of her Honour’s jury charge and it is most unfortunate he did not do so. I would therefore allow the appeal against conviction on counts 3 and 7.
The jury charge in the second trial
The relevant parts of her Honour’s jury directions in the second trial were very similar to the warning given in the first trial. Her Honour drew the jury’s attention to the effect of delay on the memory of the complainant. As in the first trial her Honour prefaced her remarks about the forensic difficulties faced by the accused by referring to the fact that the police ‘may have lost the ability to search for physical evidence or locate witnesses who may have been relevant.’ She also referred to the inability to locate two witnesses, ‘who may have been able to confirm or clarify details of the allegation in count 2’.
Her Honour continued as follows.
At the end of the day, members of the jury, what I am directing you in relation to these matters that I have mentioned, is that you must scrutinise the evidence carefully. You must satisfy yourself of its accuracy and reliability before you could proceed to convict this man.
Sorry, I will say that again. You must satisfy yourself of its accuracy and its reliability before you could proceed to convict, and you do this taking into account the evidence and the specific directions that I have given you in relation to that evidence, and what use you may make of it.
The specific aspects I have raised with you, such as the delay which has elapsed since the events, the age of the complainant, the effect on her memory, and the effect that the passage of time may have had on the possible evidence available, and on the potential to defend the allegations, plus the fact that there is no other direct evidence in relation to independent individuals, are matters which you must consider, and which I think are issues that are important to your consideration.
Obviously, when undertaking your scrutiny, you go about your task in any way that you consider appropriate, so long as you do look at the evidence carefully and scrutinise it for its accuracy and reliability. I am not saying to you, members of the jury, that there is error. The assessment of the evidence is very much a matter for you, but I am pointing out to you the existence of some of the circumstances that exist in the evidence in this case which do require scrutiny and consideration in your assessment.
Although this passage referred again to the forensic difficulties faced by the accused, the warning was expressed in weaker terms than the warning in the first trial. Her Honour’s jury charge did not allude to the dangerousness of convicting the applicant because of the delay but simply exhorted the jury to scrutinise the evidence carefully. In that respect it was similar to the Longman warning given in KJ. As I have explained, that warning was held to be inadequate because it amounted to no more than a direction to proceed carefully.
Because I have held that the Longman warning in the second trial was inadequate, it is unnecessary to consider the other grounds of appeal against the convictions in the second trial.
I would allow the appeal against conviction on counts 2 and 5 and order that these counts be remitted for retrial.
Ground 2 - Were the verdicts in the first trial unsafe and unsatisfactory?
The applicant also contended that the verdict in the first trial was unsafe. It is necessary to consider that ground in order to determine whether counts 3 and 7 should be remitted for a retrial or whether a verdict of acquittal should be substituted.
The applicant’s former wife RV, (PS’s aunt) was the only witness for the defence. The applicant did not testify. Counsel for the applicant submitted that the jury verdict was unreasonable and against the weight of the evidence having regard to inconsistencies in PS’s evidence and conflicts between her evidence and that of her aunt.
The test to be applied in deciding whether a jury verdict is unsafe and unsatisfactory was set out in Chamberlain v The Queen (No 2).[39] Gibbs CJ and Mason J said that:
It seems to us that the proper test to be applied in Australia is, as Dawson J. said, to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused. To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. We do agree that in many cases the distinction will be of no practical consequence; it will be merely a matter of words. That will not generally be the case where questions of credibility are decisive. However, whether it matters from a practical point of view or not in a particular case, it is not unimportant to observe the distinction — the trial is by jury, and (absent other sources of error) the jury's verdict should not be interfered with unless the Court of Criminal Appeal concludes that a reasonable jury ought to have had a reasonable doubt.[40]
[39](1984) 153 CLR 521.
[40]Ibid 534.
Similarly, in Morris v R[41] it was held that in determining whether a verdict is unsafe or unsatisfactory the obligation of an appellate court is to undertake an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offences with which he was charged.
[41](1987) 163 CLR 454. See also M v R (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ).
I now consider the evidence relevant to each of the counts and to the uncharged acts, having regard to counsel’s submissions.
The alleged indecent assault in the house at Fawkner (Count 3)
Counsel for the applicant said that the jury must have had a reasonable doubt about the occurrence of the alleged indecent assault at the house in Fawkner, because RV would have been home at the time of the alleged offence. Counsel also relied on an inconsistency between the complainant’s evidence-in-chief that after the alleged assault she had ‘probably’ run to the ‘bedroom or the bathroom’ and her evidence in cross-examination that she ‘probably ran outside’.
The complainant’s evidence in chief about the alleged indecent assault was as follows:
COUNSEL:Did anything change in your relationship in around about the year 1979?
WITNESS:Yes. He started touching me in ways that made me feel uncomfortable.
COUNSEL:I want to take you to the year in which you had your 11th birthday, which according to your date of birth would be after April 1979?
...
COUNSEL:So far as you can remember, was [the applicant] employed at that time?
WITNESS:Yes, he was.
COUNSEL:Do you know where he worked or what he did?
WITNESS:He worked at the Herald Sun in Melbourne.
COUNSEL:Do you remember anything about the hours that he would normally work, what time of the day?
WITNESS:He did nightshift, afternoon shift.
COUNSEL:When he worked nightshift and afternoon shift do you remember anything about the times he would normally arise when he was on those shifts?
WITNESS:Mid afternoon.
COUNSEL:Did you ever take him anything about the time he woke up in 1979?
WITNESS:A cup of tea.
COUNSEL:Who asked you to do that?
WITNESS:My mother, [RV]
COUNSEL:Was it something that you frequently did or only did once or what was the situation?
WITNESS:I frequently did. I took it that that was what I had to do, yes.
COUNSEL:Now your aunt [RV], was she employed at the time in 1979?
WITNESS:Yes, she worked for Roundtree…
COUNSEL:Did she do shift work or did she work normal daylight hours at that time?
WITNESS:Shift work, I think.
COUNSEL:I want to ask you about an occasion in 1979 when you were asked to take [the applicant] a cup of tea. Do you remember any particular occasion on which you did that, that sticks out in your mind?
WITNESS:Yes. I gave him a cup of tea and he pulled me in to the – onto the bed, into the bed under the covers.
COUNSEL:Can I just stop you there? How were your dressed, do you remember?
WITNESS:I can’t recall.
COUNSEL:What time of the day was it, was it daylight or dark?
WITNESS:It was daylight but he had the curtains shut so I could still see there was light peeking through…
COUNSEL:All right. Do you remember whether this was a week day or a weekend?
WITNESS:It was a weekend.
COUNSEL:Apart from yourself and [the applicant] and your aunt, do you remember whether there was anybody else at home at the time?
WITNESS:I can’t recall.
COUNSEL:All right. You took the cup of tea in to [the applicant] and you’ve already given this evidence but he did what?
WITNESS:He pulled me in under the covers with him.
COUNSEL:How did he do that?
WITNESS:He grabbed my arm and forced me.
COUNSEL:Once you got under the covers with him did anything happen after that?
WITNESS:He put his arms around my shoulder and he touched me in an inappropriate way.
COUNSEL:Sorry, “He touched me in” --- ?
WITNESS:Inappropriate way.
COUNSEL:Sorry, did you say “appropriate” or “inappropriate”?
WITNESS:Inappropriate.
COUNSEL:Now, on which side of [the applicant] were you when that happened?
WITNESS:I was on the right side and then he pulled me in to the left side next to him.
COUNSEL:Did he say anything to you at the time that you remember?
WITNESS:No, I can’t recall.
COUNSEL:Do you have any recollection as to how you felt or behaved when he did this?
WITNESS:I was scared wondering what was going to happen. Yes.
COUNSEL:Did you say anything to him at the time?
WITNESS:No.
COUNSEL:I’ve asked you if you could recall what sort of clothing you were wearing. Can I ask you this, were you wearing day clothes or night clothes?
WITNESS:I would have been wearing day clothes, yes.
COUNSEL:After he got you into bed you say he began touching you inappropriately. Exactly what happened, can you tell the jury?
WITNESS:He put his fingers inside my vagina, back and forth.
COUNSEL:Now, do you have – sorry?
WITNESS:And back and forth, touching my breasts. His hands were everywhere.
COUNSEL:Do you have any recollection as to whether you had any underwear on or not?
WITNESS:Yes, I did. He pulled my underwear off.
COUNSEL:When he placed his fingers in your vagina did you feel anything?
WITNESS:Yes, it hurt.
COUNSEL:Did you say or do anything at the time that you remember to indicate anything to [the applicant] when this was happening?
WITNESS:No, I didn’t. I was frozen.
COUNSEL:Did that activity eventually stop?
WITNESS:No. It kept going for a few times.
COUNSEL:So, you understand my question, you’ve told us about what he did with his fingers. What I’m asking you is, was there a point in time whenever it was, whenever it was, when that activity stopped?
WITNESS:No.
COUNSEL:On that day?
WITNESS:No.
COUNSEL:How long did it go on for?
WITNESS:Well, to me it seemed forever, probably ten, 15 minutes.
COUNSEL:Did you ever get out of the bed?
WITNESS:Yes, I did.
COUNSEL:When you got out of the bed did he say anything to you?
WITNESS:“Good girl, bubby”.
COUNSEL:What did you do then?
WITNESS:I just cried and ran out.
COUNSEL:Do you have any recollection as to whether you had your underpants with you?
WITNESS:Yes. I picked them up.
COUNSEL:Where did you run to?
WITNESS:Probably the bedroom or the bathroom.
COUNSEL:Once you left the room where this happened – perhaps I had better ask you where that was. What room of the house did this happen in?
WITNESS:The front room.
COUNSEL:That was used as what, normally?
WITNESS:His room.
COUNSEL:What about your Aunt [RV]?
WITNESS:Yes, that’s right.
COUNSEL:So, it was their bedroom, was it?
WITNESS:That’s right.
COUNSEL:When you ran out to wherever it was, was your Aunt [RV] in the house?
WITNESS:I can’t recall.
COUNSEL:Do you have any recollection of seeing her shortly after you left the room?
WITNESS:(No audible response.)
COUNSEL:I’m sorry, you’re shaking your head?
WITNESS:No, I don’t.
COUNSEL:In relation to what you’ve described the accused having done with his fingers, had that happened to you before that day?
WITNESS:No, it didn’t. It was the first time.
COUNSEL:Did you say anything to your Aunt [RV] or anybody else about it that day?
WITNESS:No, I didn’t.
The complainant’s evidence in cross-examination was as follows:
COUNSEL:It was the first time you took a cup of tea in to him?
WITNESS:Yes, that’s right.
COUNSEL:Was it a school day?
WITNESS:No, it was a weekend, I think. So it would have been …
COUNSEL:So, the other children would have been around the house too, then.
HER HONOUR: Sorry, she hadn’t finished.
COUNSEL:I’m sorry, I apologise, Your Honour.
HER HONOUR: What --- ? ---
WITNESS:They wouldn’t have been home. They would have been home about 3.30 or four o’clock.
COUNSEL:What time do you say that it happened?
WITNESS:Between 12, three.
COUNSEL:Between 12 to three?
WITNESS:Twelve, one, two three.
COUNSEL:Certainly [RV] wasn’t working at that time, was she, on the weekends?
WITNESS:I’m not sure. I know she was working at Rowntree Hoadley, that’s ---
COUNSEL:I suggest to you that she was only working during the day, a shift from 7.30 until about four o’clock?
WITNESS:I don’t know, sorry.
COUNSEL:If I can go back again; put the question. So other children would have been around the house as well if it was a weekend?
WITNESS:Not necessarily, they came and go.
COUNSEL:When you were ten, [C] would have only been five?
WITNESS:Yes, that’s right, yes; he would have been around.
COUNSEL:What about the others?
WITNESS:I don’t know.
COUNSEL:You don’t know whether they were around or not?
WITNESS:No.
COUNSEL:So when you look back and look at that you definitely can’t say there was no other child in the house on that occasion?
WITNESS:(No audible response.)
COUNSEL:Were you asked this question, it’s p.144, Your Honour, at line 6. (To witness) Were you asked the question and referring to that time, “Do you say definitely no, at the house on that occasion?” Were you asked that question?
WITNESS:Probably, yes.
COUNSEL:Did you give the answer: “No”?
WITNESS:Probably. I don’t know whether they were there or not, no.
COUNSEL:So what you’re saying is that on that previous occasion you were incorrect?
WITNESS:I don’t know what other people were doing. All I know was what happened to me. I don’t know what was around me.
COUNSEL:Why would you answer a question as specific as that, “Do you say definitely no other child was at the house on that occasion?” Why would you answer it so specifically if you’re not sure?
WITNESS:Well, I probably thought that I was, that they weren’t around.
COUNSEL:Certainly [RV] was there?
WITNESS:Yes.
COUNSEL:Were you asked the question at line 10: “[RV] was there?” Were you asked that question?
WITNESS:Yes, that’s right.
COUNSEL:Did you give the answer: “[RV] was there, yes, but no other children.” Was that your answer?
WITNESS:Yes.
COUNSEL:Certainly it would have been ---?
WITNESS:I remember [RV], yes.
COUNSEL:Pardon?
WITNESS:I remember [RV] being there, yes.
COUNSEL:You remember ---- ?
WITNESS:[RV] being there.
COUNSEL:But it would have been unusual for the children to be away, all the children to be away at the one time, wouldn’t it?
WITNESS:They could have taken [C] out or – I don’t know.
COUNSEL:Wasn’t it unusual for all the children to be away at the one time?
WITNESS:I suppose it’s unusual.
COUNSEL:I beg your pardon?
WITNESS:I suppose.
COUNSEL:Who made this cup of tea?
WITNESS:[The applicant] did.
COUNSEL:You went (indistinct) and took it into the bedroom?
WITNESS:Yes.
COUNSEL:How long ---?
WITNESS:Sorry?
COUNSEL:Do you remember now what you were wearing?
WITNESS:Did he? I don’t know.
COUNSEL:I suggest to you that those shifts were such that he left for work every – at five or six times a week at 5.00 p.m. or about 7.00 p.m?
WITNESS:Right.
COUNSEL:Pardon?
WITNESS:Okay.
COUNSEL:Do you agree with that?
WITNESS:I don’t know.
COUNSEL:That of course would mean that on nearly every night that you were at Costerfield he was in the city at the Herald and Weekly Times?
WITNESS:Okay.
COUNSEL:Would you agree with that?
WITNESS:No.
COUNSEL:So which part of it do you disagree with, that he left or-?
WITNESS:All I know is he was there at nine o’clock.
COUNSEL:Nearly every night?
WITNESS:Yes, that’s right.
COUNSEL:You in fact have the view certainly that he was doing night shift at that time?
WITNESS:I recall Fawkner he did, yes.
COUNSEL:No, I’m asking about Costerfield.
WITNESS:No, I don’t know his shifts.
COUNSEL:Pardon?
WITNESS:I don’t know his shifts.
COUNSEL:Wasn’t it the case that you certainly were of the view that you thought he was still doing night shifts when you were living at Costerfield?
WITNESS:I don’t know what his shifts were.
Counsel also asked the complainant whether anyone came to look for the applicant when he was in her bedroom and she said that this did not happen because he used the pretext that he was going outside ‘to check the chook eggs and he usually wandered around’.
RV’s evidence-in-chief about the applicant’s working hours while the family were living in Costerfield was as follows:
COUNSEL:First of all when you moved to Costerfield did [the applicant] – where was he working at that time?
WITNESS:When we went to – when we lived in Costerfield he was working at the Herald & Weekly Times in Flinders Street.
COUNSEL:Was he working a regular shift at that time?
WITNESS:He worked regular nightshift.
COUNSEL:What time did he leave home?
WITNESS:He would leave the house at seven because he started work at nine but sometimes he did an overtime shift which was called a “sixth shift” which he would do – would sometimes be the same hours, but sometimes on his ordinary week he would leave at five o’clock because he did overtime and I think they did something to the ink, I’m not sure.
COUNSEL:On how many days a week did he work?
WITNESS:Five days a week with – with sometimes six on the overtime.
COUNSEL:On those times that he worked was he ever at home at nine o’clock at night?
WITNESS:Never, unless it was the night off or a weekend – like, a Sunday that he didn’t work.
COUNSEL:When you were at Costerfield you had some chooks?
WITNESS:Yes.
COUNSEL:Can I ask who used to feed the chooks?
WITNESS:I did.
COUNSEL:When was that [d]one?
WITNESS:Well, [the applicant] – coming home early in the morning, he would sleep and I had quite a few animals, I had chooks and goats so that – I would spend my time outside so that he could sleep and keep the house quiet.
COUNSEL:Who would collect the eggs?
WITNESS:Well, sometimes he collected the eggs during the day when he got up or mainly I collected them because they needed to be washed because he used to take them down and sell them to his friends at work.
COUNSEL:Are you aware of the eggs being collected after dark?
WITNESS:Never because we used to get snakes in the shed.
In cross-examination RV said that the applicant began to work night shift in Bendigo some time after they moved to Costerfield but that she could not recall whether he started work at nine or ten in the evening. She thought he left home at eight o’clock to start work at nine o’clock.
Counsel submitted that the aunt’s evidence about the times when the applicant left home to go to work in Melbourne and later in Bendigo meant that the complainant’s evidence that she was regularly assaulted around 9.00pm could not be believed. He also said that there was a conflict between the complainant’s evidence that when the applicant went to her bedroom he used the excuse that ‘he was going to check the chook eggs’ and RV’s evidence that the hens’ eggs were collected in the day time, rather than in the evening. It was contended that these inconsistencies in evidence made the jury verdict on both counts unsafe.
The inconsistencies to which I have referred above related to the complainant’s evidence as to uncharged acts. In my opinion there was no necessary inconsistency between the aunt’s evidence that the ‘chook eggs’ were, in fact, collected in the day time and the complainant’s evidence that the applicant used checking the eggs as an excuse to wander off and visit her in her bedroom. I also note that the aunt’s evidence about the time the applicant left for his Bendigo job, namely that he probably started at nine or ten in the evening and he would have left at eight to get there by nine, was not necessarily inconsistent with the complainant’s evidence that he assaulted her in the evening.
The complainant did not contradict RV’s evidence about the applicant’s shifts, but said she did not know when he left for work in Melbourne. She was firm in her evidence that the assaults had occurred.
In my opinion it was open to the jury to accept the complainant’s evidence that the applicant sexually assaulted her in her bedroom at Costerfield on a number of occasions, whilst not accepting her evidence about the precise time that this occurred.
Conclusion
The statement of Brennan J (as he then was) in his dissenting judgment in M v R[45] is relevant to this proposed ground of appeal. His Honour said that:
[45](1994) 181 CLR 487.
The evidence in the trial reveals no feature on which a court's assessment should prevail over the assessment made by the jury. It is the jury's composite and broad experience of life that is paramount in our structure of administering criminal justice. Words in a printed transcript may tell one story to the critical legal mind and another to those who test a story for truth or falsehood according to a broad experience of life. Inconsistencies which loom large when painted with the colours of advocacy may be insignificant minutiae once a witness convinces a jury that he or she is honestly attempting to tell the truth. It is the sad but salutary experience of every counsel for the defence that the prosecution's "weak point" is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution
witness.[46]
[46]Ibid 493.
Having reviewed the whole of the evidence in this case I do not consider that the evidence is such that ‘a court's assessment should prevail over the assessment made by the jury’ or that this is a case in which the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the accused. It follows that ground 2 is not made out.
For the reasons given above I would grant the application for leave to appeal, allow the appeal and remit the matter for retrial.
DODDS-STREETON JA:
I agree with the disposition proposed by Neave JA for the reasons stated.
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