R v T W K
[2003] VSCA 225
•9 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 328 of 2001
| THE QUEEN |
| v. |
| T.W.K. |
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JUDGES: | CALLAWAY and BATT, JJ.A. and HARPER, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 December 2003 | |
DATE OF JUDGMENT: | 8 December 2003 | |
DATE OF REASONS: | 9 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 225 | |
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CRIMINAL LAW – Indecent assaults on sister in 1968 and 1969 – Applicant not interviewed until 1997 – Longman warning insufficient – Nolle prosequi already entered to counts on which jury could not agree – Acquittal entered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr M.G. Perry | Nicholas O’Donohue & Co. |
CALLAWAY, J.A.: In this appeal the Court made orders yesterday for reasons to be given today. I invite Batt, J.A. to give the first reasons.
BATT, J.A.:
The applicant was born on 26 October 1953. On 18 December 2001, after a trial which (omitting preliminary argument and rulings) commenced on 4 December 2001, he was found guilty by a jury in the County Court at Melbourne of three counts of indecent assault upon the elder of his two sisters, whom I shall call “the complainant”. They were counts 1, 2A and 4. The jury also found the applicant not guilty on two counts of indecent assault of his younger sister and two counts alleging incest with her. The jury were unable to reach a verdict on the remaining counts, which alleged attempted buggery with and indecent assault of the complainant, and indecent assault (two counts) and carnal knowledge of the younger sister and buggery with her. A nolle prosequi was subsequently entered in relation to those remaining counts. The jury had earlier acquitted the applicant by direction of one count of carnal knowledge of the complainant and one count of indecent assault of the younger sister. Two of the indecent assaults of which the applicant was found guilty were alleged to have occurred between 1 January 1968 and 31 December 1968 and the other was alleged to have occurred between those days in the following year, 1969. The most recent offence alleged on the presentment, of which the applicant was acquitted, was stated to have occurred between 11 December 1976 and 11 December 1977. The applicant was not interviewed by police until 5 June 1997. He was not charged until 5 July 1999.
The maximum penalty for indecent assault at the time of the offending was imprisonment for five years. The applicant had no prior convictions. After hearing a plea in mitigation of penalty on 18 December 2001, during which medical reports relating to the applicant and a victim impact statement by the complainant were tendered, his Honour on 20 December convicted the applicant and fined him $1,000 on each of the three counts.
On 24 December 2001 the applicant filed notices of application for leave to appeal against conviction and against sentence. The notice relating to conviction contained eight grounds of appeal of which only three or at most four appeared to be pursued in the outline of the applicant’s argument. Of those it is necessary, in the view I take, to mention only two. Ground 7(a) alleged that the trial judge erred in charging the jury without warning it as required by Longman v. The Queen[1] or alternatively without giving a sufficient warning or giving such warning with insufficient emphasis. The next three paragraphs of ground 7 may be said to be particulars of that ground, alleging, as they do, an erroneous failure to direct the jury as to the unfairness of certain matters. Ground 8 alleged that the convictions were unsafe and unsatisfactory. The application relating to sentence was not pursued in the outline.
[1](1989) 168 C.L.R. 79.
Before considering the application relating to conviction it is necessary to refer to certain evidence, though not the evidence of the offences alleged to have been committed against the complainant. The complainant was born on 22 June 1958, so that the applicant was about four years eight months older than she was. Her younger brother was two years younger than she was and her younger sister a further two years younger. Both parents were deceased at the time of the trial.
The complainant gave evidence that, when she was about eight or nine years of age, the applicant began to touch her sexually. The sexual touching which thus commenced occurred on many occasions, almost always in the morning after their parents had gone to work. This evidence was evidence of uncharged acts which the judge had earlier ruled might be given.
The complainant recalled two specific incidents. The first occurred one morning before school in 1968 when she was in Grade 5. This incident covered counts 1, 2, 2A and 3. The complainant secondly recalled an incident one morning in 1969. She was in Grade 6 that year. Both parents were at work. This incident covered counts 4 and 5. That was the last time anything of a sexual nature happened between the applicant and the complainant.
There were only two bedrooms in the family’s flat and the four children shared one of them. Neither their mother nor their siblings were in the bedroom when the sexual activity between the applicant and the complainant was occurring. The younger brother gave evidence that their mother worked five days a week at the relevant time, starting at 6 a.m. and not returning until well after 4 p.m.
In cross-examination the complainant stated amongst other things that she told her husband in 1994 that the applicant had abused her. She conceded that she sought counselling for the abuse. She was adamant that she did not receive counselling until after her parents died in late 1996. She had received counselling until early 2001. She denied receiving any counselling procedure that had altered her memory. She admitted reading many books on incest and sexual abuse after first disclosing the abuse to her husband. She did not reveal the abuse to her parents while they were alive. She did not think anyone would believe her. She had had nightmares on and off over the years. She made her statement to the police in 1997 when she discovered the level of abuse her sister had suffered at the hands of the applicant. That discovery occurred after their parents had died.
In re-examination she denied that the allegations surfaced as a result of the unlocking of repressed memories.
The applicant was interviewed by investigating police on 5 June 1997, as already mentioned. He denied the allegations. He stated that they were only raised after he had indicated that he was going to contest the will of one (or, it may be, each) of his parents. The applicant gave sworn evidence at his trial. He stated that he shared a room with his siblings during the relevant period. He agreed that their mother worked an early morning shift during week days. He stated that the allegations made by the complainant were totally false. Until 1995 he and she had a normal relationship. But the relationship soured after she began seeing a person he said was a psychiatrist. The answers given in his record of interview were true.
The applicant called Dr Andrew Gibbs, a clinical neuro-psychologist who had expertise in human memory. He stated that memory is subject to decay. The process of recollection can also be tainted by external influences. Exposure to a book such as the complainant might have read carried certain dangers, one being that it conveys certain expectations to the reader and encourages the reader to dig for memories. Where there has been a significant passage of time, this carries with it a risk of contamination or distortion of memory and even of the creation of false memories. The witness also made reference to repressed memory, stating that there was no scientific basis for the theory. He said that he would have benefited from looking at any records of counselling attended by the complainant. There were no such records in evidence.
I come now to ground 7(a). The most striking feature of this case is the extreme age of the offences at the time they were first put to the applicant. They were then 28 or 29 years old. There was no corroboration of the complainant’s evidence. This was the type of case par excellence that the direction enunciated in Longman v. The Queen was designed to meet. In that case, Brennan, Dawson and Toohey, JJ. pointed out[2] that there was one factor which might not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them. That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution. It was imperative that a warning be given to the jury. Their Honours continued:
“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”
Such a direction has to be balanced, where appropriate, by the statement, required in Victoria by s.61(1)(b) of the Crimes Act 1958, informing the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it.
[2]At 91. (Emphasis added.)
His Honour dealt with the effect of delay over some six pages of his charge as transcribed. He pointed out that memory on either side can fade; that after the passage of time accused persons sometimes lose the means of defending themselves, exemplifying this by reading a passage from earlier on the same page of Longman[3] as has been cited; that the psychological counselling notes relating to the complainant had been destroyed; that the parents were dead and their work records unavailable; and that there had been no fresh complaint in this case. His Honour then informed the jury as required by s.61(1)(b) and referred to the sisters’ explanations for not making an earlier complaint. He then said that the fact was that the victims had now made allegations and given evidence and been cross-examined and the issue was for the jury to assess them and their evidence. He continued:
“The circumstances such as I have referred to, the delay, the nature of the allegations, the age of the respective victims at the time of the offences involving such respective complainant or victim, the problems of faulty recollections of memory, the absence of complaint, all point to the potential for error inherent in evidence of this nature. What I am saying to you is that these things point to the potential for error. That is what you must keep in mind. I am not saying that there is error. Questions of the assessment of the evidence are very much for you.
The sort of circumstances I mention highlight the problems from the defence point of view in explaining the circumstances surrounding the alleged offences, not that there is any onus of proof on the accused. The existence of those circumstances is such as to require any trial judge in such circumstances to do what I have just done; that is, to give judicial authority and to comment that such circumstances must be earnestly considered by you, the jury. These matters mean that to fulfil your duty of fact-finding, you must be fully aware of the dangers of convicting on the evidence of the respective complainants alone, unless having scrutinised evidence as to that particular count with great care, you are satisfied as to its truth and accuracy. If you are satisfied of its truth and accuracy, you are bound to convict in relation to that particular count.
… [W]hilst a jury is not bound to have regard to any comments made by counsel or the judge about matters of fact, it would be wrong for a jury in a case such as this to ignore what I have just said by way of warning about the dangers and the potential for error where the events are alleged to have occurred many years ago. However, having noted these comments and warnings that I give you, it is then open to you as a jury to convict, but only after careful scrutiny of all the evidence, bearing in mind the difficulties for the defence, bearing in mind … the onus of proof … .“
At the first break in the judge’s charge after the foregoing, counsel for the applicant took exception to the Longman warning on the ground that his Honour had not really given a judicial direction but a comment and that the difficulty was that his Honour had earlier told the jury (as he had in substance directed them) that they were not bound to act on his comments but only on his directions of law.
[3]At 91.
In my opinion, the exception was well taken. First, his Honour did refer to the essence of what he told the jury as a comment and had earlier directed the jury that they might disregard comments by him. His reference at that point to giving judicial authority would not have conveyed to a lay jury that what he was about to say was a direction of law. It is true that a little later his Honour told the jury that it would be wrong to ignore what he had just said by way of warning about the dangers and the potential for error, but that did not, I think, eliminate the effect of his Honour’s use of the word “comment”. If anything, it must have left the jury in a state of confusion as to the status of the warning.
There is a second and independent reason why I respectfully consider the charge on this aspect to this point defective. Whilst it may not always be necessary to use language the same as or fairly close to that quoted above from the judgment of Brennan, Dawson and Toohey, JJ., this case was one of extreme delay and accordingly required strong language equating closely to that of their Honours. The language of the trial judge, on the other hand, was discursive, did not direct the jury that they could only reach satisfaction after they had paid heed to the warning, and contained passages which, to my mind, detracted from such strength as the warning given had.[4] With regard to the last point, I instance his Honour’s elaboration of “the potential for error” and his reference to the circumstances as requiring any trial judge to do what he had just done. Mr Gyorffy with his usual fairness did not suggest that his Honour’s initial instruction was adequate.
[4]Compare the criticism in R. v. W.E.B. [2003] VSCA 205 at paras. [33], [46] to [50] and [52] to [56] by Charles, J.A., and Winneke, P. and Eames, J.A. respectively.
His Honour re-directed the jury as follows:
“In relation to offences occurring a long, long time ago, and the existence of the circumstances to which I referred as giving difficulty to the defence, well those circumstances are such as to require any trial judge in such circumstances to do what I did do. That is to give judicial authority in a direction that such circumstances must be earnestly considered by you. Now, my language was complained of as not being strong enough and it’s quite correct that I should make it quite strong to you that I give my judicial authority to the direction that such circumstances must earnestly be considered by you, the jury.
This time the prosecutor took exception to the re-direction on the ground that the direction should not be simply that the circumstances arising from the delay should be “earnestly considered” by the jury. Rather, he submitted, the direction should be in terms of the passage set out earlier from the judgment of Brennan, Dawson and Toohey, JJ. Defence counsel criticised the prosecutor for not taking the exception at the earlier time and instead seeking to have the judge come back to the point for a third time. However, after reading overnight more recent High Court decisions,[5] counsel joined in the exception, taking the point that the re-direction was unemphatic and that “the whole thing” had been disjointed and lacked sufficient emphasis and clarity. After further argument his Honour said that he was satisfied that the direction was sufficient having regard to the authorities and that he did not propose to re-direct on Longman.
[5]Crampton v. The Queen (2000) 206 C.L.R.161 and Doggett v. The Queen (2001) 208 C.L.R.343.
In my opinion, the re-direction did not cure either of the defects I have identified in the initial portion of the charge and, further, the respective criticisms of the re-direction by the prosecutor and defence counsel are valid. In addition, his Honour’s statement that the circumstances were such as to require any trial judge to do what he had done seems to me, with respect, to suggest that the direction he was about to give was really a matter of form only and thereby to dilute it.[6] Mr Gyorffy did not suggest that the re-direction was adequate.
[6]Compare again R. v. W.E.B.
Despite the ruling against re-directing, when the jury had returned to court the judge, after giving a direction concerning a tainted or potentially unreliable witness of whose evidence there was no corroboration, continued:
“Accordingly, I repeat the warning which I gave you yesterday. Where the alleged offences occurred a long time ago, it is dangerous to convict an accused person upon the uncorroborated evidence of a complainant.”
For the respondent, Mr Gyorffy did submit, though not with great force, that in that passage his Honour did put the full weight of his judicial authority behind his warning and that the exceptions by counsel were adequately addressed. But, for two reasons, I consider that again the re-direction was inadequate. First, the jury might well have missed the point. For the change of topic from a warning about a tainted or potentially unreliable witness would have been entirely unexpected by the jury as his Honour had told them on resuming his charge that there was “one matter of law, further matter of law” that he thought it appropriate to direct them about. Nor was the word that introduced the short passage in question, namely “Accordingly”, apposite, since the passage did not follow from the other warning. It reads as though it was inserted by his Honour as he was going along. Secondly, whilst on one interpretation the passage might be understood as a direction not to convict at all, it was open to be understood by the jury as permitting conviction despite the danger, and on that interpretation it was inadequate because it omitted the conditions on which alone conviction was permissible despite the danger, being the conditions introduced by the word “unless” in the passage set out earlier from Longman.
It is not possible, I consider, to uphold this direction by aggregating it with what his Honour had said in his two previous attempts, despite his reference to “the warning which I gave you yesterday”. That would, in my opinion, be asking too much of the jury. In any event, the conditions just mentioned were not stated in the first re-direction and were, as I have held, inadequately stated in the initial portion of the charge. What was required to cure the defects or deficiency was, as it seems to me, a fresh, free-standing direction warning the jury, in light of the judge’s earlier review of the circumstances of the case, that it was dangerous to convict on the complainant’s evidence alone unless the conditions stated in the passage cited above from Longman were satisfied.
Ground 7(a), therefore, succeeds and the application for leave to appeal must be granted. In the ordinary course, it would have been necessary to consider ground 8 alleging that the convictions were unsafe and unsatisfactory and, unless that ground succeeded to the extent of requiring an acquittal, there would have been a direction for a new trial on counts 1, 2A and 4. But this was an exceptional case in view of the antiquity of the alleged offences and the very significant fact that the Director had already seen fit to enter a nolle prosequi on the counts on which the jury were unable to agree, and perhaps also in view of the medical condition of the applicant. Moreover, whilst he did not consent, Mr Gyorffy did not oppose the Court’s exercising the discretion conferred on it by s.568(2) of the Crimes Act in favour of directing the entry of a judgment and verdict of acquittal on the three counts even though it had not been held that the evidence at the trial was insufficient to sustain the convictions. This case was, in my opinion, an appropriate one for the discretion to be so exercised.[7]
[7]Compare R. v. Tadic [2003] VSCA28 at paras. [24] and [25], where the importance of the ordinary course is emphasised, whilst the existence of the discretion in exceptional circumstances is demonstrated.
The foregoing are my reasons for joining in the orders which the Court pronounced yesterday, namely:
1. The application for leave to appeal against conviction is granted.
2.The appeal is treated as instituted and heard instanter and is allowed.
3.The convictions sustained by the appellant on counts 1, 2A and 4 are quashed and the sentences passed thereon are set aside.
4.The Court directs a judgment and verdict of acquittal to be entered on each of those counts.
CALLAWAY, J.A.:
I joined in the orders made yesterday for the reasons Batt, J.A. has given.
HARPER, A.J.A.:
I too joined in those orders for the reasons expressed by Batt, J.A.
CALLAWAY, J.A.: Are there any applications?
MR PERRY:If Your Honours please, I apply for a certificate under the Appeal Costs Act.
CALLAWAY, J.A.:
The Court grants the appellant a certificate pursuant to s.14 of the Appeal Costs Act 1998.
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