R v Salter
[2002] VSCA 128
•22 August 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 403 of 2000
| THE QUEEN |
| v. |
| TY ROBERT SALTER |
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JUDGES: | WINNEKE, P., BUCHANAN, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 July 2002 | |
DATE OF JUDGMENT: | 22 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 128 | |
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Criminal law – Conviction on multiple counts of rape and threat to kill – Whether a Longman warning was required – Kilby direction given – Use to be made of uncharged acts in determining the probability or improbability of the charged acts.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.J. Ryan | Ms. Kay Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr. J.F. Desmond | Victoria Legal Aid |
WINNEKE, P.:
The issue on this appeal is whether the trial judge was in error, in the light of the evidence given in the trial, in failing to give to the jury a “Longman type direction”[1] and/or in failing to adequately direct the jury as to the significance of the delay on the part of the complainant in making complaints of the nine rapes and the one assault with intent to rape which she alleged against the applicant, and in respect of which the jury convicted him of six of such rapes (counts 7, 12, 14, 16, 17 and 18). The jury acquitted the applicant of the other three counts of rape alleged (namely counts 10, 11 and 13) and the count of assault with intent to rape (count 8). The rapes of which he was convicted accounted for eight of the eight-and-a-half years’ imprisonment imposed upon the applicant by the trial judge.
[1]Cf. Longman v. The Queen (1989) 168 C.L.R. 79.
For the purposes of this judgment, I gratefully adopt the summary of the evidence given at trial outlined in the judgment of O’Bryan, A.J.A. Because I have the misfortune to differ from his Honour as to the ultimate outcome of this appeal, I will endeavour to confine my reasons for doing so within short compass.
Most of the evidence at the trial was given by the complainant. There was some brief evidence given by some of her friends which touched upon the events of 27 and 28 September 1997 (counts 5, 6 and 7; namely “threat to kill”, “false imprisonment” and “rape”); and the events of 15 December 1997 (count 8; “assault with intent to rape”). None of this other evidence supported the complainant’s claims of sexual assault. Indeed the friend who was in the complainant’s house when the assault with intent to rape was alleged to have occurred gave evidence which was very different from that of the complainant, and no doubt led to the acquittal on this count. Further, there was a statement of Dr. Williams – the complainant’s general practitioner – which by consent was read to the Court. He said that he had examined the complainant on 28 January 1999 when she had complained to him that she had been assaulted by the applicant on that day; that he had found swelling at the back of the right ear which required no treatment or follow up. This visit must have been either on or very shortly after the day when the complainant said she had been raped three times by the applicant (counts 16, 17 and 18). No complaint was made to the doctor about that; nor was there on the following day when she reported events to police. Senior Constable Allan says that, on 29 January, the complainant had told him that she had “had sex with [the applicant] to calm him down”.
There were two quite unusual features about the complainant’s evidence. The first was the description which she gave of the relationship between the applicant and herself which lasted, with interruptions, from July 1997 until January 1999. On any view of the evidence, the relationship was a tempestuous one; but one which appears to have been held together by a strong mutual sexual attraction. The evidence revealed that there were scores of consensual sexual encounters before and after the alleged non-consensual ones. Although the complainant suggested, during evidence in chief, that – following the events of September 1997 – she had thereafter submitted to the applicant out of fear, those claims rang somewhat hollow after her cross-examination, during the course of which she conceded that they would, on occasions post September 1997, have intercourse several times per day in the course of which she would “fellate him” repeatedly. In the course of the statement which she finally made to police on 6 March 1999 she had said:
“During our relationship, there were many times that we had sex. Most times the sex was intimate and loving. It was only when he was drunk or having his power trips or mental states that the sex became threatening and violent."
As this statement demonstrates, the relationship was also characterized by acts of physical violence by the applicant towards the complainant, particularly after the applicant had been drinking. It was the physical violence which was the subject of reports by the complainant to her friends and the police, and which led to temporary separation in late 1997 and early 1998 following the obtaining by the complainant of interim and permanent “non-intervention” orders from the courts. Yet, and notwithstanding these orders, contact continued between them. Although, at the trial, the complainant explained such contact as the consequence of pressure and fear, she agreed that she had told the police in her statement of March 1999:
“I really thought I was in love with him. I felt sorry for Ty; I was hoping I could change him because he really did have some good qualities.”
At the trial the complainant, who by then was married, explained this statement as the product of “confused emotions”, said that she would not “class it as ‘love’ now” and that she had so described it “probably because I didn’t know any better.”
There was, however, a second unusual feature of the complainant’s evidence which sets it apart from other cases of its kind and which, on any view, depreciated its impact. The complainant had, and took advantage of, several opportunities to complain about the applicant’s conduct. Throughout the period of the relationship, she made complaints to friends, to the police, and, ultimately, to her general practitioner. However those contemporary complaints were confined to physical assaults. She made complaints to police on 7 October 1997 about the events which had occurred on 27 September and which were the subject of counts 5, 6 and 7 on the presentment; on 16 December 1997 about the events of 15 December (which gave rise to count 8; assault with intent to rape); on 26 February 1998 about the events of that day which gave rise to count 12; and on 29 January 1999 about the events which were the subject of the last four counts on the presentment. Those complaints, as I have said, were confined to allegations of physical abuse and made no mention of rape or any form of non-consensual sexual abuse. On the basis of the complaints relating to the events which were ultimately the product of counts 5, 6, 7, 8 and 12 on the presentment, the “non-intervention” orders were obtained and charges were preferred against the applicant for assault; which charges were prosecuted to conviction in the local court in March 1998 – as a result of which the applicant was imprisoned.
The statement made by the complainant to the police on 7 October 1997, which she agreed was made under pain of penalty for perjury if untrue, not only stopped short of alleging false imprisonment and rape (which, at trial, constituted counts 6 and 7), but, on one view, positively excluded such offences. In it she described the events of the night of 27 September in terms of physical violence by a man who was drunk. She said that she had gone to bed; that he dragged her out of the bed to drink with him; that when she went to the toilet, “he bailed me up in the hall and grabbed me by the bathrobe and slammed me into the door”; that he “slammed” her up against the wall and slapped her across the face five or six times; that he later punched her in the face. When she told him to get out of the house, he became enraged and “dragged [her] by the hair into the bedroom and threw [her] on the bed”. She then punched him; he “slapped” her to the face. He “then threatened to rape me and said ‘you reckon no man is ever going to rape [you] again. Well we’ll see about that’.” She said that he “started to undo my robe and I threw him … across the room. I was very sure he was about to rape me, and I’ve never seen him act like that before. … I ran to the door trying to get out but he grabbed me and threw me back on the bed.” Later she said that he had “jumped” on top of her, punched her on the side of the stomach and hit her “really hard” on the bridge of the nose. He had then apologized, started to cry, said he was “sorry” and went and ran a shower for her. She said that she had a shower and went to bed “hoping he would calm down and fall asleep, which he did”, When he did, she left the house and returned to the neighbour’s house where she had been for dinner. It was those neighbours who were called at the trial and said she had made no complaint to them of rape.
At the trial the complainant added to her description of these events. She said that not only had he “threatened to rape” her, he in fact did so and did it at the point of a knife which, for the purpose of terrorizing her, he had plunged into the bed inches from her head. Furthermore he had “locked” her in the bedroom by removing the door handle from the inside of the door. She explained these omissions from her police statement by saying that she did not wish to be “dragged through the courts”. She said she had not reported the “knife incident” because “it was all part of the rape and I was not going to report the rape at that time”.
The events which I have described occurred early in the tempestuous relationship between the complainant and the applicant. Thereafter, and notwithstanding non-intervention orders and a term of imprisonment in 1998, the evidence reveals that it continued, interspersed with allegations of violence but not, until her final statement of March 1999, including allegations of rape. Even when he went to live at the Hazelwood Accommodation centre as a result of the intervention order which the complainant had obtained, she paid for his accommodation and visited him there. When it was put to her, at trial, that she stayed overnight with him at the centre, she replied “I don’t recall” but added “he was making so many threats. If he said to do something I did it.” She visited him whilst he was in prison in 1998. Her visits were “contact visits”. When he was released, the relationship continued. Even when she made her statement to police on 29 January 1999, following the events which became counts 15, 16, 17 and 18 on the presentment (including three rapes), she told police that she “had sex with [the applicant] to calm him down”. The police informant, Senior Detective Allan, told the jury that, following this, she was sent to the Community Police Squad to obtain details about the relationship. She failed to meet appointments made for her and, ultimately on 12 February 1999, said she no longer wished to proceed. She was told that, if she no longer wanted to proceed, she had to come into the station and make a formal statement to that effect. A further appointment was made for 22 February 1999. She declined to keep it. Ultimately she made her statement, which formed the basis of her evidence at trial, on 6 March 1999. The applicant was then interviewed in April 1999. He denied that he had ever raped the complainant. The record of interview was produced in evidence, but the applicant gave no evidence upon his trial.
At the conclusion of the evidence, trial counsel for the applicant (who also appeared before this Court) submitted to his Honour that he should, during his charge, give to the jury a “Longman warning”[2] and a “Kilby direction”[3]. His Honour ruled that he would not give a “Longman warning”, even though he formed the view, as he stated, that “the complainant’s evidence is uncorroborated”. Of course, the fact that the evidence is not supported by independent material is not, by itself, a reason for the giving of the warning which applicant’s counsel had sought. His Honour said that, although “there is a significant delay in the complaints of rape”, the accused had been interviewed shortly after the complainant’s complaints of the offences charged in March 1999, and “all allegations were fully put to him.” He said:
“The accused was able, in his police interview, to respond to each of the charges and generally any prejudice to him in his defence of the charges is not of the sort that would … require a specific warning from me.”
During the course of his Honour’s charge to the jury, counsel again submitted that a “Longman warning” should be given having regard to the absence of corroboration and the matters in evidence which “tend to undermine” the reliability of her evidence; namely the failure to complain of sexual assaults on the occasions when she did complain. His Honour again declined to direct the jury that it would be dangerous or unsafe to act on the complainant’s evidence alone unless, having scrutinized it with care and paying heed to the warning, they were convinced of its truth and accuracy. He did however tell them:
“Keep in mind what I said earlier in relation to the sexual offences; the only evidence of those matters is the evidence of the complainant. The nature of sexual offences often means that it is only the complainant and the accused who will have been present. For this reason you will obviously need in this case to carefully scrutinize the evidence of the complainant.”
[2]Longman v. R. (1989) 168 C.L.R. 79.
[3]Kilby v. R. (1973) 129 C.L.R. 460.
In my opinion, his Honour was in error in failing to give to the jury a warning of the type which counsel sought. Of course, the days are long gone when the judge was required, as a rule of law or practice, to warn juries in sexual complaint cases that it would be dangerous to convict an accused person on the uncorroborated evidence of the complainant. In this State that rule was finally abolished in 1991[4] when s.61 of the Crimes Act was introduced which, by sub-s. (1)(a), forbade judges in cases such as the present one from “warn[ing] or suggest[ing] in any way to the jury that the law regards complainants in sexual cases as an unreliable class of witness”. The purpose of sub-s.(1)(a) was aimed at the “adverse reflection which a warning ‘required by any rule of law or practice’ casts indiscriminately on the evidence of all alleged victims of sexual offences, the vast majority of whom are women, and the corresponding protection which the giving of a warning confers on an accused …”[5]. However, as the courts have pointed out in many cases, the abolition of the rule was not intended to suddenly convert complainants in sexual cases into specially trustworthy witnesses[6]. As Toohey, Gaudron, Gummow and Kirby, JJ. said in Crofts (at 451), s.61 of the Crimes Act was introduced:
“… simply to correct what had previously been standard practice by which, based on supposed ‘human experiences’ and ‘the experience of the courts’, judges were required to instruct juries that complainants of sexual conduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to ‘sterilize’ complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. It would require much clearer language than appears in s.61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts.”
The right and duty of the judge to make such comments is preserved by s.61(2), which although now qualified by sub-s.(3)[7] remains operative in cases where such “comments” are required to ensure a fair trial. As this Court pointed out in Miletic (at 603), the word “comment” where used in the context of s.61(2) includes a binding direction to the jury. However, whether a warning carrying the authority of the judge’s office is called for, and in what form, will depend upon what the interests of justice require in the particular case. In general terms, it can be said that such a warning should be given whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case[8]. Although the test prescribed by these authorities might be said to provide little guidance to trial judges (and, no doubt, they will need to be guided by their own instincts) there will usually have to be identifiable factors which call for such a judicial direction. They are factors of a nature, the significance of which will, or might, not be readily apparent to the jury – left to their own devices with the assistance of counsels’ addresses – but more apparent to the judge. It should not be thought, however, that the so-called “Longman warning” is confined to the circumstances which the High Court identified in that case as calling for such a warning.
[4]By Act 9509 of 1980, the Victorian Parliament had introduced a new sub-s. (3) in s.62 of the Crimes Act by which it had modified the rule by providing that:
“where a person is accused of a sexual offence, no rule of law or practice shall require the judge … to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the person with or upon whom the offence is alleged to have been committed, but nothing in this sub-section restricts the operation of any enactment requiring the evidence of a witness to be corroborated.”
(The effect of this modification of the rule of practice was explained in R. v. Kehagias & Ors. [1985] V.R. 107 at 110-1 per Starke and Hampel, JJ.; R. v. Rosemeyer [1985] V.R. 945 at 968 per Ormiston, J.; R. v. Pahuja (1987) 49 S.A.S.R. 191 at 196-8 per King, C.J.)
[5]Longman at 85-6.
[6]Longman v. R. at 86-7; R. v. Miletic [1997] 1 V.R. 593 at 602; Crofts v. R. (1996) 186 C.L.R. 427.
[7]Introduced by Act No.81 of 1997.
[8]Longman at 86; Robinson v. R. (1999) 197 C.L.R. 162 at 168.
In my view, as I have said, the circumstances of this case did call for a direction by the judge that it would be dangerous or unsafe to convict the applicant upon the evidence of the complainant alone unless, having thoroughly scrutinized her evidence, and paying heed to the warning, they were satisfied of its truth and accuracy. In the peculiar circumstances of this case, it was not enough, in my view, for general directions to be given (as they were) as to the use which the jury could make of prior inconsistent statements made by witnesses; or the use which they could make of the “delay” which occurred between the alleged rapes and the complaint made in evaluating the complainant’s evidence and its credibility. Those directions were, to my mind, altogether too bland to avoid the perceptible risk of a miscarriage which was inherent in the circumstances of this case. This was not so much a case of “delayed complaints” as it was, on the complainant’s own evidence, of “selective complaints”. The selectivity employed by the complainant in making her complaints to the police created, in itself, prejudice to the applicant. It meant that the applicant came before the jury as a person charged and convicted of violent offences arising out of the very events upon which the prosecution relied to prove counts 6, 7, 8 and 12. It was inevitable that these convictions, and the circumstances from which they arose, were going to be ventilated before the jury because they were inextricably interwoven with the circumstances upon which the Crown was relying to prove the counts charged on the presentment. Indeed, the record of the applicant’s interview with the police alluded to them; the applicant understandably saying to the police, when questioned about the events giving rise to the above counts, that he had already been “dealt with” for those matters. In the course of instructing the jury as to the use which they could make of “uncharged conduct” his Honour referred to “alleged conduct associated with the events giving rise to the charge[s] on the presentment”. In particular, he referred to the events out of which counts 6, 7, 8 and 12 had arisen. He told the jury that these were matters in respect of which, as the jury had heard, “the accused man has been dealt with already”. However, his Honour went on:
“The accused’s guilt must be proved, generally speaking, by evidence related only to the charge or charges brought against him. However, in this case, evidence has been given that the accused has been convicted of other criminal offences for which he was sent to prison. …
In the record of interview, the accused identified the matters for which he had been dealt with as relating to the events leading up to the charges covered by counts 6 and 7, 8 and 12 of the presentment. …
Now, I give you the following direction of law about the use you can make of that evidence. You are entitled to use the evidence as to the credit of the accused. That is to say, you may use it against the accused when considering what weight you should attach to the answers which the accused gave to the questions the police asked him in the interview on 6 April 1999. That is what you can do. You may, if you choose, consider what the accused says is less to be trusted because of his bad character. … .”
Leaving aside altogether the strict accuracy of this direction and issues of “abuse of process” and “double jeopardy” (particularly with regard to the offences charged in counts 6 and 8), it is clear that the applicant had to suffer this unfavourable direction as a direct consequence of the manner in which the complainant had chosen to make her complaints. It was a significant prejudice to a man relying, for his defence, upon the acceptance by the jury of his answers in the record of interview.
Even more importantly, it seems to me that in the absence of a warning, of the type to which I have referred, and in the presence only of directions as to the use which could be made of “delayed complaint” (if the jury found there was “delay”), a danger arose that the jury would not understand the forensic impact of the “selectivity” employed by the complainant. This was not really a case of a witness making a prior inconsistent statement upon a matter relevant to an issue to be determined. This was a case where the Crown’s principal witness, put before the jury as reliable and accurate, had previously made statements to the police, averred to be true, in which she had given a version of the same events, now said to support the counts on the presentment, which was materially different from the version being given to the jury. Indeed, as I have already noted, the version which she had previously given to the police of the events which occurred on 27 and 28 September 1997, on one view, excluded any form of sexual assault. It would seem to me, at least in respect of those events, no convictions could be recorded on the relevant counts unless the jury could exclude, as a reasonable possibility, that the previous version was true. The fact that she had previously given a version of events in such a materially different form so undermined her reliability as a witness of truth as to require more from the judge than a direction upon the impact of “delay”, if a perceptible risk of injustice was to be avoided. Similar comments, as it seems to me, can be made about the complainant’s statement to the police on 29 January 1999, shortly after the events which gave rise to the counts of rape charged in counts 16, 17 and 18, all of which resulted in convictions. According to the evidence, she told Senior Constable Allan that, on the day when these events occurred (which appears to have been very shortly before 29 January), she had had sex with the applicant to “calm him down”. On the day before she had told her local medical practitioner that she had been assaulted by the applicant. Yet when she made her final statement on 6 March 1999, she said she had submitted to the applicant through fear, due to the fact that he was threatening her with a “knife”. Although, in one sense, it might be contended that the events, as later described, could be said to be consistent with her earlier statement that she had had sex with the applicant “to calm him down”, that statement would appear to be far more consistent with the version of events given by the applicant in his record of interview that he became upset because the complainant said she no longer loved him and threatened to kill himself by over-dosing.
In my opinion, the manner in which the complainant made her complaints, and the nature of those complaints, so impacted upon the credibility of the complainant that the directions which the judge gave in the nature of a “Kilby direction” (and which have been referred to by O’Bryan, A.J.A. in paragraphs [53] and [54] of his reasons) were insufficient to alert the jury to the significant erosion of the complainant’s reliability to which the evidence pointed. To simply tell the jury that they could take “such delay [in making complaint] into account when evaluating the complainant’s evidence and in determining whether to believe her or not”, but then to go on and tell them that he was “able to recall” the events, and that it was “appropriate” for them “to consider whether the accused has been significantly disadvantaged in defending himself because of the delay in complaining, or whether the fact that he has been able to identify all but … one of the incidents indicates that there was not significant disadvantage”, suggests to me that the balance of fairness between the complainant and the accused – which was intended to be restored by s.61 of the Crimes Act – was (in the peculiar circumstances of this case) being unfairly distorted against the interests of the applicant.
For the reasons stated, it is my view that counsel was right to request the judge to give the warning which he called for, and the judge was in error in failing to
give it. I would allow the application and the appeal. In the circumstances there should be a new trial.
BUCHANAN, J.A.:
I have had the advantage of reading the draft reasons of the President and O'Bryan, A.J.A.
Initially I was disposed to think that the significance of the failure of the complainant to raise the question of rape when she was lodging complaints of assault, which caused her to produce statements in which she lied by omission, would have been brought home to the jury without a warning that it would be dangerous to convict the applicant unless her evidence was corroborated.
On reflection, however, I have formed the opinion that, in the ways explained by the President, the inconsistent positions adopted by the complainant created serious doubts as to the veracity of her evidence in court which would not necessarily have been brought home to the jury by defence counsel's animadversions on her credibility. In his charge to the jury to the trial judge in my opinion did not adequately deal with the problems created by the complainant's changes of position. A warning in terms of Longman with the weight of the judge's office should have been given.
Accordingly, I agree with Winneke, P. that the application should be allowed.
O'BRYAN, A.J.A.:
This is an Application for Leave to Appeal against Convictions in the County Court at Morwell on 11 September 2000 on the eighth day of a trial before a judge and jury. The applicant had been arraigned on a presentment containing 18 counts.
On counts 3 and 4 (making threats to kill), by direction of the judge, the jury found the applicant not guilty. On count 1 (stalking), count 2 (making a threat to kill), count 8 (assault with intent to rape) and counts 10, 11 and 13 (rape), the jury returned verdicts of not guilty. On count 5 (making a threat to inflict serious injury), count 6 (false imprisonment), counts 9 and 15 (making a threat to kill) and counts 7, 12, 14, 16, 17 and 18 (rape), the jury returned verdicts of guilty. The victim of every count, save counts 3, 4 and 5, was BJS, who will be referred to hereafter as the complainant. The person the subject of count 5 was Miguel Marino.
Following a plea, the applicant was sentenced to serve a term of imprisonment on each count on which he was found guilty. With cumulation, a total effective sentence of 8½ years was imposed and a non-parole minimum term of 6 years was fixed. The applicant did not appeal that sentence.
The rape counts, including counts 10, 11 and 13, took place between 28 September 1997 and 27 January 1999, a period of about 16 months.
In about March 1997 the complainant first met the applicant. She was then living in a house in Churchill with a female companion, who vacated the house shortly after. The complainant gave evidence that she was troubled by someone, whom she described as a “stalker”, after her companion left in April. Her house was entered and the contents disturbed on a number of occasions. She received telephone calls from an unidentified male who made sexual suggestions to her. She moved out of the house to avoid the harassment, but returned about four weeks later. The applicant approached the complainant stating that he needed somewhere to stay and the complainant agreed to his doing so as a security measure. The applicant moved into her house at the end of July or early August 1997.
The complainant said that they had separate bedrooms, but had sexual intercourse together from time to time. The complainant denied that she was living in a “relationship” with the applicant. She said she was studying and had her own life with university friends. After a time, the applicant became aggressive and threatening and was consuming a lot of alcohol.
Count 5 – Threat to kill
On Saturday, 27 September 1997, the complainant said she and the applicant were visiting neighbours, Miguel and Yolande Marino when a threatening incident occurred at around 9.30 p.m. between the applicant, and Yolande Marino. The applicant was aggressive and drunk. During the incident the complainant said the applicant became angry with Yolande Marino who began to cry. Miguel Marino asked the applicant to leave, there was yelling and the applicant said to Marino in an angry manner: “I will have the Rebels come and rape your daughter and kill you.” The Rebels referred to a motorcycle gang. The threat was made to Marino and the complainant on the road outside Marino's house. In a police interview, the applicant denied making the threat, but when asked whether he might possibly have made the statement but could not recall it, he said: “It's possible but I doubt it.” This episode constituted count 5.
Count 6 – False imprisonment
After the complainant returned home she said she made preparations to go to bed. The applicant stayed up drinking a bottle of bourbon. After a time the complainant visited the bathroom and as she returned the applicant became aggressive, yelling out that he would like to kill her father and calling her a slut. Next an assault took place, not a charged act, and the applicant dragged the complainant by her hair into the bedroom. The applicant unscrewed the door handle and imprisoned the complainant in the room. This incident constituted count 6. In a police interview, the applicant said he did not recall taking the handle off, but later said: “I don’t know, I probably did, I don’t know.” At the end of the interview, he said: “The false imprisonment might have happened, I can’t remember.”
Count 7 - Rape
The complainant said that the applicant returned to the bedroom and threw her on the bed. She said that he punched her stomach and face and undid her robe. She said that he returned with a knife and punched it down next to her head, puncturing the pillow slip, the pillow protector and the mattress protector. He put the knife blade against her throat and then had sexual intercourse with her. She said he then struck her on the bridge of the nose, making it bleed. Later, she ran to her neighbour’s house and her injuries were confirmed by Miguel and Yolande Marino. Her face was described by Yolande as red and puffed up and looked like it was going blue. She made no complaint of a sexual assault to them, nor did she do so on 7 October 1997 when she made a statement to the police and complained about the physical assaults. Neither the imprisonment nor the rape were mentioned to the police. This episode constituted count 7. The false imprisonment and rape occurred in the early hours of 28 September 1997.
Expert opinion evidence was offered by a forensic scientist that damage he observed to the pillow and other bedding material beneath looked like stab marks. During the trial the three punctured items and photographs of them were tendered as exhibits.
In a police interview, in April 1999, the applicant said he dragged the complainant into the bedroom but didn’t know why. He said that in the bedroom, he tripped on clothing and a knife he was carrying accidentally went into the mattress about 6 or 7 inches from the complainant’s head. He denied having sexual intercourse with the complainant that night and had not forced himself upon her. He admitted hitting the complainant on the nose and that she left the house and went to the Marino house.
The physical assaults were not the subject of counts in the presentment because they had been dealt with in the Magistrates’ Court.
Count 9 – Threat to kill the complainant, and Count 10 – Rape - both occurred in Geelong on 19 December 1997 and will be considered together.
On 19 December 1997 the complainant visited her parents in Melbourne. The complainant said that the applicant rang her from Geelong and asked her to come to Geelong and pick him up. She said that when she refused, he said that now he was in Geelong he was closer to the Rebels and it would not take much to arrange to have them execute her parents. She said that she felt frightened. She said that the threat was repeated in similar terms the next day. The complainant said she drove to Geelong and picked up the applicant. She said he directed her to the beach, saying he wanted to talk to her. She said he asked her for sex on the beach and she refused and he asked again. He made a further threat to ring the Rebels, after which he removed her clothes and pushed her onto her back on the foreshore and had intercourse without her consent. She said she started crying, but he continued until ejaculation.
In a police interview, the applicant denied making threats about her parents and said that the complainant rang him at Geelong. He said they had consensual sexual intercourse on the beach.
Count 12 – Rape – 26 February 1998
The complainant said that on her return from a friend’s dinner party, she found the applicant at home, naked, on a couch. She said that he accused her of having an affair, banged her against a door and head-butted her to the forehead extremely hard. The door and part of the wall were broken. He dragged her to the bedroom and put her on the bed. She was crying. She said he undid her skirt and had sexual intercourse with her, first on top of her and then from behind. The complainant said she did not consent and next morning went to her friend’s house where the dinner party was held, rang the police, and later obtained an intervention order.
The complainant made a statement to the police on 26 February 1998, but she did not make a complaint about being raped or sexually assaulted by the applicant.
The applicant told the police in a Record of Interview in April 1999 that he recalled the dinner party evening, which he did not attend because he was depressed. He said that when the complainant returned home, he was naked and asleep in bed and no sexual intercourse occurred that night.
Count 14 - Rape – 14 January 1999
After holidaying interstate for several weeks, the complainant said that she returned home on 13 January. The applicant wanted “sex” but she said no and visited friends. When she returned she said the applicant again said he wanted “sex” and she again said no. She said the applicant threatened to trash the house and kill the complainant and her family. She said that the following day, they visited friends and an argument broke out when the applicant’s car would not start. She said that upon returning home, the applicant berated her for making him look like an idiot. He took a kitchen knife and held the blade at her throat. They moved to the bedroom, where the applicant put the knife on a pillow. The complainant said she was crying and the applicant told her to shut up. She said he laid her on the bed and had sexual intercourse with her against her will.
The applicant told the police in his interview in April 1999 that he had consensual sexual intercourse with the complainant on 13 January, but did not have “sex” the next night after visiting their friends. The applicant agreed there had been a disagreement over the car, but denied holding a knife to the complainant’s throat. He said he went to bed on a waterbed because his back was hurting.
Counts 15 to 18 may be considered together. The offences: Count 15 – Threat to kill the complainant, and Counts 16, 17 and 18 – Rape – all occurred one evening in the second half of January 1999
The complainant said that after returning home from a barbecue at Marino’s house, there was an argument between herself and the applicant, at the conclusion of which the applicant took a bread knife and a handful of pills, Panadol, Valium and other drugs. He said to the complainant: “I might as well kill myself, imagine the police finding me dead in your house. If I’m going to kill myself I might as well kill you too, no-one else is going to have you.”
The applicant in his record of interview denied having a knife in his hand or threatening to kill the complainant. He said he did threaten to kill himself by overdosing on pills. That is count 15.
The complainant said the applicant put the knife on a table near the bed and removed her shorts and top before lying on top of her and putting his penis in her vagina and thrusting until he lost his erection. That is count 16. Then he put his penis in her mouth with his legs on either side of her head and moved it in and out until he regained an erection. That is count 17.
The complainant said the applicant then put his penis inside her vagina again and had sexual intercourse with her until he ejaculated. That is count 18.
The complainant said she was a non-consenting party to the sexual acts. The applicant told the police in the interview in April 1999 that he and the complainant did not have sex on that occasion either vaginally or oral sex and that he had never forced himself on her. He said that she was always an active participant in sex.
The complainant made a number of statements to police before her relationship with the applicant finally ceased in January 1999 after the incidents described in counts 15 to 18. The first statement was made on 7 October 1997, about nine days after the incidents described in counts 5, 6 and 7. The second statement was made on 16 December 1997, shortly after an alleged offence of assaulting the complainant with intent to rape, the subject of count 8, of which the applicant was found not guilty. The third statement was made on 26 February 1998, after the rape incident described in count 12. A fourth statement was made on 29 January 1999, after the rape incidents described in counts 15 to 18. A fifth statement was made by the complainant on 6 March 1999. In the fifth statement, for the first time, all the rape offences with which the applicant was later charged were detailed. As a consequence of the allegations made in the fifth statement, the applicant was interviewed on 6 April 1999 and responded to the allegations in the manner earlier indicated.
In the four statements made to the police before 6 March 1999 the complainant complained only of physical assaults. Consequently, the complainant was subjected to searching cross-examination about her statements and the suggestion was made to her that those statements were untruthful because they did not mention the sexual assaults. She explained her reluctance to mention the knife incidents to the police following the episode on 7 October 1997 because "it was all part of the rape and I wasn't going to report the rape at that time". She said that on occasions when she sought court intervention orders she complained only of physical assaults and she brought the applicant to court for breaching the orders on account of further physical assaults.
There was considerable scope for cross-examination of the complainant as to her truthfulness based upon inconsistency in previous statements and in her evidence on other occasions, including the committal proceeding. The complainant admitted that on numerous occasions during “the relationship” she had consensual sex with the applicant, but it was “casual sex”, in her view, because the applicant was not her “boyfriend”. She explained that she became frightened of the applicant when he informed her that he had been the “stalker” and that, finally, she told the police the full story in March 1999 because of his violence and alcoholism.
The statements of the complainant were not tendered in evidence, no doubt because they would have disclosed to the jury uncharged acts of misconduct in greater detail than did the oral evidence. This would have been most prejudicial to the applicant.
Nevertheless, it seems to me that the principal attack on the complainant’s credibility was not made upon the basis that her earlier statements about the physical assaults probably disclosed the whole truth and the last statement and her oral testimony contained prevarication that were untrue. Be that as it may, the credibility of the complainant about the sexual complaints was a very real issue in the trial and her evidence had to be scrutinised very carefully by the jury before it could be acted upon.
The applicant did not give evidence or call witnesses at the trial. His counsel relied upon cross-examination of the complainant, in particular, and other witnesses and he attacked the credibility of the complainant through the earlier inconsistent statements. Counsel also had available the applicant’s denials in the Record of Interview that rape ever occurred. In the Record of Interview the applicant was able to recall the several incidents charged and in answer to the counts of rape either denied that sexual intercourse had taken place on the occasion alleged, or said that when sexual intercourse occurred it had been consensual.
At the conclusion of the evidence counsel for the applicant asked the judge to give the jury a Longman-type warning and a Kilby direction.[9] In essence, counsel asked the judge: (i) to instruct the jury that it would be dangerous to convict the applicant in the absence of corroboration because of inconsistencies of the complainant’s accounts of the incidents to the police and in court and, (ii) to instruct the jury that the failure of the complainant to complain would be a factor to consider in deciding the credibility of the complainant.[10]
[9]Longman v. R. (1989) 168 C.L.R. 79; Kilby v. R. (1973) 129 C.L.R. 460.
[10]Transcript at pp.400-403.
His Honour declined to give a Longman-type warning.
Counsel renewed his application after the judge had given the jury a warning that the only evidence in relation to the sexual offences was the evidence of the complainant and that the jury needed to scrutinise the evidence of the complainant carefully. Counsel said:
“In my submission your Honour should be in plain words saying to them, there is no corroboration and if they were to proceed to conviction before they do so they must pay heed to that direction that your Honour has given them.”
His Honour declined to accede to the request, ruling that such a direction was unnecessary in the circumstances of the case.
He did, however, twice give the jury warnings concerning delay in complaining of sexual assaults and the care that a jury must take in a case involving sexual offences to carefully scrutinise the evidence of the complainant as the only evidence of those matters was the evidence of the complainant.
The following passage in the charge constituted a warning to the jury:
“Firstly, in relation to the counts which comprise sexual offences. The only evidence of those matters is the evidence of the complainant. The nature of sexual offences often means that only the complainant and the accused will have been present. For this reason in this case you will obviously need in your deliberations to scrutinise the evidence of the complainant carefully.”[11]
[11]Transcript at 452
His Honour informed the jury of the effect delay may have in the reporting of sexual offences on the complainant’s evidence and detailed the dates when she made statements to the police, omitting reference to rape or sexual assault. He then proceeded to say to the jury:
“As a matter of law I must tell you that delay in complaining of sexual assaults does not necessarily indicate that a complainant's allegations are false. There may be good reasons why a victim of sexual assault may delay or hesitate in complaining about it. In the present case there was no complaint of sexual assault made at the time of the alleged offences although, as I have just referred to, other complaints of physical assaults were made on three occasions. You must consider whether in this case there are good reasons why no complaint was made earlier.
The explanations given by the complainant were that she was frightened of the accuser's threats, she was embarrassed and ashamed as to what had happened and she was apprehensive of the court processes if she made a complaint of sexual assault. You may also think it relevant the fact that the complainant was 19 or 20 or 21. Also the fact that she was apparently living as husband and wife in a de facto relationship might have meant that she would not readily complain of intimate matters in the relationship even though she was prepared to complain to her neighbours and to the police about physical assaults to her.
You have heard the evidence of the complainant about the threats she said the accused man made. You have heard his response in the police interview when these matters were put to him. I will go through the specific counts with you shortly.
You must consider firstly, whether you accept the evidence of the complainant about these matters and whether in the circumstances it provides an explanation for the delay in complaint. That is a matter for you. It is necessary, however, that you take such delay into account when evaluating the complainant's evidence and in determining whether to believe her or not. In this case the accused man was able to recall or identify all but I think one of the particular incidents referred to and to give in some cases a detailed response. Some details he was unsure of and they have been referred to by counsel and some of them I'll refer to in going through the particular offences.
It is appropriate for you to consider whether the accused has been significantly disadvantaged in defending himself because of the delay in complaining or whether the fact that he has been able to identify all but perhaps one of the incidents and to give detailed responses indicates that there was not significant disadvantage. Now, that is a matter for you. It is open to you to take into account the delay; the delay in complaining or the failure by the complainant to make complaints as a factor in your determination of whether the allegations made in this case are made out or not.”[12]
[12]Transcript at 453-454
At the request of the applicant’s counsel, the judge made a correction to the words “de facto relationship”, saying:
“I was simply attempting to describe the fact that since July or August 1997 they resided in the same house, had a sexual relationship and appear to have been perceived as a couple. You have heard evidence, including the complainant's description of the relationship at different times and how she referred to it in earlier statements and evidence. It is a matter for you what you make of that evidence and the reasons which might explain the complainant's failure to complain of what she says were sexual assaults.”[13]
[13]Transcript at 486
Near the end of the charge the judge said to the jury:
“Keep in mind what I said earlier in relation to the sexual offences, the only evidence of those matters is the evidence of the complainant. The nature of sexual offences often means that it is only the complainant and the accused who will have been present. For this reason you will obviously need in this case to carefully scrutinise the evidence of the complainant.”[14]
[14]Transcript at 498
The Notice of Application for Leave to appeal against Conviction contained the following grounds:
1.The learned trial judge erred in law in failing to discharge the jury on the application of the accused in his opening remarks to the jury, informing the jury that Mr Desmond of counsel would outline or detail the defence case.
2.The learned trial Judge erred in law in failing to give the jury a Longman direction.
3.The learned trial Judge erred in law in failing to state in plain words that in respect of the rape counts there was no corroboration of the complainant’s evidence.
4.The learned trial Judge erred in law in failing to direct the jury that in respect of the “uncharged acts” the standard of proof, before they could be satisfied the same occurred, was beyond reasonable doubt.
5.The jury verdicts on the rapes were inconsistent.
6.The learned trial Judge erred in law in failing to give a full and proper direction as to the failure to call witnesses.
7.The learned Judge erred in law in failing to give a full and proper Kilby direction which was required in the interests of justice.
8.Further, insofar as the trial Judge refused to give a Longman direction, he erred in law in so doing, and further erred in law in failing to at least give the jury a modified Longman direction.
Counsel for the applicant abandoned grounds 1, 5 and 6.
Grounds 2 and 3 were argued together by Mr Desmond. Those grounds assert that a Longman warning or a modified Longman warning ought to have been given to the jury in the circumstances of the case. It was not made clear to the Court what would constitute a “modified” Longman warning, nor was any authority cited. It was submitted in relation to the rape charges that the following circumstances required a Longman warning:
(a)the complainant’s evidence was entirely unsupported by other evidence led at the trial, so that proof of the offences was dependent upon her evidence alone;
(b)there was a very significant delay in any complaint of sex offences by the complainant to the police or anyone else.
As already indicated in paragraph [49] the judge directed the jury on two occasions that the complainant’s evidence was unsupported by other evidence and proof of the offences was dependent upon her evidence alone. In this regard, in my opinion, the charge was more favourable to the applicant than it ought to have been, for the Crown led evidence as to the knife marks in the bedding items found by the police after the incident on 28 September 1997. That evidence was capable of supporting the evidence of the complainant in relation to counts 6 and 7. However, my comment is not intended to detract from Mr Desmond’s principal argument. In relation to the delay argument it is desirable to remember that delay in complaining about the sexual offences does not apply to counts 14 to 18 which took place between 14 and 27 January 1999. The delay in relation to the sexual offences in 1997 and 1998 is better expressed as a failure to make a complaint at all when the opportunity to do so first arose. The failure to complain particularly in relation to counts 7, 8, 10, 11, 12 and 13, was at the forefront of the defence case. Coincidentally perhaps, the jury found the applicant not guilty on counts 8, 10 and 11 (rape counts), allegedly committed in December 1997 and January 1998 and not complained about until March 1999.
In Longman, in the joint judgment of Brennan, Dawson and Toohey, JJ., their Honours considered a warning should have been given that it was unsafe to convict in the circumstances of the particular case. The circumstances included the nature of the allegations, a long delay before the prosecution commenced, the tender age of the victim when the incidents occurred and the absence of a complaint. Those circumstances, save for the absence of a complaint in relation to some counts, are not to be found in the present case. The circumstances of the case will dictate when a trial judge should give a Longman warning.[15]
[15]R. v. Young [1998] 1 V.R. 402; R. v. DSJ [1998] VSCA 63 particularly para.[25]; Miletic [1997] 1 V.R. 593.
In my opinion, the criteria present in this case did not require a Longman-type warning. The circumstance that the complainant did not complain about the earlier sexual offences when she had the opportunity to do so, in the course of police investigations into personal assaults, was a matter forcefully exposed by counsel during the trial. The judge twice directed the jury that the only evidence of the sexual offences was the evidence of the complainant and that her evidence needed careful scrutiny. This Court may assume that the jury understood and heeded the warnings given regarding the complainant’s evidence. It was not a complex matter.
During the charge, and in the absence of the jury, counsel informed the judge that his reason why a full Longman warning should be given was because of the absence of corroboration of the complainant’s evidence. He said:
“The Crown’s case turns on this complainant alone and in those circumstances it is absolutely necessary that the jury’s attention be focused on this fact, that it is her evidence and it is her evidence alone and that there are matters tending to undermine its reliability.”
He added:
“Because of those matters that tend to undermine her reliability it may very well be dangerous to convict.”
The judge repeated the warning he had already given and, in my opinion, went as far as it was necessary to go. It would have been undesirable to refer to the legal concept of corroboration for to do so would have resurrected the common law doctrine that it is dangerous to act upon the uncorroborated evidence of a female when a sexual offence is alleged. In 1980, the Crimes (Sexual Offences) Act (Act No. 9509) added to the Principal Act s.62(3) in Part 1, Division 1, Sub-Division (8G). Section 62(3) abolished the common law rule which required a judge, where a person was accused of a sexual offence, to warn the jury that it was unsafe to convict the accused on the uncorroborated evidence of the person with or upon whom the offence was alleged to have been committed. Section 62(3) was replaced by s.61 in 1991. Since 1991[16] with the insertion of s.61(1)(a) in the Crimes Act 1958 a judge is not required to give the jury any warning or suggest in any way to the jury that the law regards complainants in sexual cases as an unreliable class of witness. The warning sought by counsel under the Longman principle might have transgressed s.61(1)(a) of the Act.
[16]Crimes (Sexual Offences) Act 1991 (No. 8 of 1991).
Counsel also made the point again about delay in complaint about rape, or that there was no complaint, in at least four police statements made prior to her statement on 6 March 1999. When the charge resumed his Honour immediately revisited “the issue of delay by the complainant in making a complaint” and said:
“I told you that delay in complaining does not necessarily indicate that a complainant’s allegations are false and there may be good reasons why a victim of sexual assault may delay or hesitate in complaining.”
In doing so his Honour was complying with s.61(1)(b) of the Act.
Before this Court Mr Desmond made reference to many passages in the cross-examination of the complainant where her credibility was seriously in issue on account of omissions in her early police statements, inconsistencies in her evidence on other occasions and selectivity of the applicant's offending. He submitted that a Longman warning was required because the jury would not have appreciated just how deprived of credibility the complainant was as a witness. In my opinion, it was not the function of the judge, under the guise of a Longman warning, to give a direction of the kind sought. There will be cases in which the evidence of significant witnesses is so potentially unreliable or tainted that in the interests of justice a Faure-type direction will be required.[17] This was not such a case, in my opinion, and counsel did not ask for a Faure direction.
[17]DPP v. Faure [1993] 2 V.R. 497.
The jury in the present case may be presumed to have understood from the evidence, the submissions made for the defence, and the directions of the trial judge, that the critical issue was the credibility of the complainant’s evidence of the sexual offences. The jury was correctly directed about the onus of proof and must have been fully aware that it could not convict the applicant of rape unless satisfied beyond reasonable doubt that her evidence of the sexual offences was true. In my view, in the circumstances of the case, the judge’s directions were appropriate and sufficient for the jury. Grounds 2 and 8 fail, in my opinion.
Ground 4 was amended by leave of the Court. The ground as amended reads:
“The learned trial judge erred in law in directing the jury that in respect of the uncharged acts ‘your view of the evidence, of the circumstances of the sexual activity and other activity between the parties may assist you in determining the probability or improbability of the charged acts having occurred in the manner alleged by the Crown’.”
The words in italics were preceded by the following words: “a specific direction as to the limited use you may make of evidence not relating to a particular count in your consideration of the counts on the presentment” and were followed by: “Ultimately you must of course be satisfied of the elements of each particular charge beyond reasonable doubt.”
Earlier in the charge, the judge had directed the jury as to what use the jury may make of evidence relating to “the other alleged inappropriate or improper conduct which is not the subject of the particular charges you will be considering” (the other acts). The judge correctly directed the jury that it may use the evidence of other acts in considering the relationship of the parties and thus the probability or improbability of the charged acts having occurred in the manner that has been alleged. This was in conformity with authority.[18] The evidence of other acts was clearly prejudicial and would have been inadmissible if it showed no more than propensity on the part of the accused to carry out violent acts, particularly against the complainant. The other acts evidence went further, to prove that the nature of the relationship between the complainant and the applicant was, at times, tempestuous and violent.
[18]R. v. Beserick (1992) 30 N.S.W.L.R. 503 at 515-516; R. v. Vonarx [1999] 3 V.R. 618; R. v. Loguano [2000] 1 V.R. 235.
The evidence of other acts was not tendered as propensity evidence and the judge made this clear to the jury in his preliminary instructions. Following the passage just cited, the judge directed the jury:
“But it would be prejudicial and contrary to law for you to reason that because you are satisfied beyond reasonable doubt that the accused had engaged in some improper conduct at some other time, whether he has been dealt with for that conduct or not, that he is the kind of person who is likely to have committed the crimes charged and to use such a conclusion as evidence that he had committed them or any of them.”
A charge should not be fragmented, but read as a whole. The passage relied upon by Mr Desmond as showing error came towards the end of the charge. In my opinion, the direction in the passage sought to be impugned was correct. The other acts evidence did bear in a relevant way upon the probability or improbability of the charged acts having occurred at all. The jury was then reminded that the elements of each particular charge had to be proved beyond reasonable doubt. Ground 4 fails.
Mr Desmond next submitted that the judge erred in failing to give a full and proper Kilby direction[19] which was required in the interests of justice. Mr Desmond conceded that in conformity with s.61(1)(b) of the Act 1958 the judge was required to, and did, warn the jury that delay in complaining does not necessarily indicate that a complainant’s allegation is false and that there may be good reasons why a victim of sexual assault may hesitate in complaining about it. His complaint was that the judge did not clearly tell the jury that it was entitled to take delay into account in assessing the complainant’s credibility. Further, in referring to the reasons why the complainant did not complain at all, or delayed making a complaint the Kilby direction was ineffective or “played down”, to use Mr Desmond’s expression.
[19]Kilby v. R. (1973) 129 C.L.R. 460.
A Kilby direction, in essence, requires a trial judge, in circumstances where there has been a failure to complain, to direct the jury that a failure to complain should be taken into consideration by them when they are considering whether they would accept the complainant’s evidence.[20] The judge in the present case did just that, in the following passage in the charge:
“It is necessary, however, that you take such delay into account when evaluating the complainant’s evidence and in determining whether to believe her or not.”
[20]At 465.
Shortly afterwards the judge directed the jury:
“It is open to you to take into account the delay; the delay in complaining or the failure by the complainant to make complaints as a factor in your determination of whether the allegations made in this case are made out or not.”
In my view, in the passages I have cited the judge correctly and fully gave the jury a Kilby warning. No exception was taken by counsel to the direction given. Ground 7 fails.
Before concluding I consider it is desirable that I add some further observations about the trial. As is often the position in this type of case, the strength of the prosecution evidence will depend upon the credibility of the complainant. Throughout the trial in the County Court it is fair to say that the complainant was herself on trial. That is not to imply that she was in any way exposed to unfair treatment in the witness box, but she was a vital witness. However, at the end of the evidence no application was made by counsel for the applicant for a direction to acquit the applicant on the rape counts on the ground that the complainant’s evidence had been so discredited that no reasonable jury could find the charges proved. As I noted earlier, no Faure direction was sought. The grounds of appeal did not include a ground that the verdicts are unsafe and unsatisfactory.
The complainant’s credibility was plainly an issue for the jury. They saw her and heard her evidence and made an assessment of the evidence. The judge adequately and correctly charged the jury as I have found and the jury returned verdicts which indicated that it entertained reasonable doubt as to the guilt of the accused on some counts and not on others.
This Court was not asked to determine whether the guilty verdicts are unsafe and unsatisfactory according to the test formulated in M. v R.[21]. Essentially, the guilty verdicts were made because the jury was prepared to accept the complainant’s evidence on some counts after scrutinising her evidence carefully as the jury was directed to do.
[21]M. v. R. (1994) 181 C.L.R. 487. See also Jones v. R. (1997) 98 A.Crim.R. 107.
In my opinion the application to appeal against the convictions should be dismissed.