R v VST
[2003] VSCA 35
•15 April 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.224 of 2001
| THE QUEEN |
| v. |
| V.S.T. |
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JUDGES: | WINNEKE, P. and PHILLIPS and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 March 2003 | |
DATE OF JUDGMENT: | 15 April 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 35 | |
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Criminal law – Sexual abuse of young daughter – Majority verdict taken – Whether jury had deliberated for “at least six hours” – Calculation of time allowed – Whether need for “perseverance direction” – Motive to lie suggested by defence – Whether prosecutor’s comment inappropriate – Whether directions on weighing complainant’s credibility by “categories” or directions as to delay in complaint constituted error – Right of complainant to seek exemption from giving evidence not canvassed at trial - Appeal dismissed – Juries Act 2000, s.46(1),(2),(3), Crimes Act 1958, ss.61, 400.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. T. Gyorffy | Ms K. Robertson Solicitor for Public Prosecutions |
| For the Applicant | Mr. P.F. Tehan, Q.C. with Ms G. Tsirmbas | Patrick Dwyer |
WINNEKE, P.:
I agree with Phillips, J.A. that the application should be dismissed for the reasons he has stated.
PHILLIPS, J.A.:
This is an application for leave to appeal against conviction. The applicant, who is now 38 years old, pleaded not guilty in the County Court to a presentment containing 11 counts of sexual misconduct with his daughter. The offences were allegedly committed between 10 April 1999 and 30 May 2000, which made the complainant 13 or 14 years old at the time, she having been born on 10 April 1986. The trial lasted four days and shortly before 5 p.m. on 21 June the judge accepted from the jury majority verdicts of guilty on each count. The applicant admitted two prior convictions of little relevance, in 1985, and a plea in mitigation was made on his behalf. On 20 August 2001 he was sentenced to a term of imprisonment on all 11 counts, being sentenced as a serious sexual offender on the counts after count 2. The total effective sentence was of six years’ imprisonment and a non-parole period was fixed of three and a half years. There was pre-sentence detention of 61 days. The applicant makes no complaint now about the sentence; he seeks leave only to appeal against conviction. Initially there were only three grounds of appeal, but another six were added by amendment on 18 February last. Ground 10 was added on 27 February.
Background facts
The offending was briefly described by the trial judge in his sentencing remarks. He said:-
"The first four counts all related to the one incident before Christmas 1999 when it was alleged you went into your daughter’s bedroom and committed four offences. The first one was an indecent act, feeling her breasts; the second one was another indecent act, feeling her vagina; the third one was putting your finger into her vagina, and the fourth one was getting your tongue into her vagina.
The next incident was in November 1999 after the party when the window was broken and it was a charge of penetration where you were found guilty of inserting your penis into her anus. The next three counts related to an incident after you had had a shower and you went into her bedroom in your robe. Count 6 was an indecent act, touching her vagina; Count 7 was penetration, putting your finger in her vagina; and the third was the penetration of inserting your penis in her vagina. Count 9 was the incident where you rubbed your penis between her breasts, and the final counts 10 and 11 were in relation to the pens [which the complainant had wanted her father to buy for her] in May 2000, and Count 10 was a penetration of finger in the vagina and Count 11 was a penetration of tongue in vagina.”
All 11 offences were allegedly committed by the applicant at the home he shared with his wife and three children, one of whom was the complainant.
The complainant was of course the principal witness at the trial, for she gave direct evidence in support of each of the counts. Evidence was called, too, from a work colleague of the applicant’s who on 14 February 2000 wrote a message for him, at his request, on a St. Valentine’s Day card which the applicant admitted he then sent to the complainant; from the applicant’s former wife, who had argued with the applicant over his sending of the card and to whom the complainant made complaint on 2 August 2000 about her father’s alleged misconduct; from a medical practitioner, who examined the complainant on 15 August 2000 and found no physical signs to confirm or deny the allegations of sexual abuse; and from a senior constable of police, who conducted an interview with the applicant on 17 August 2000 during which the applicant denied all allegations of sexual misconduct. The applicant did not himself give evidence at the trial, but he called evidence from his sister and from a neighbour. Real evidence included a photograph of the complainant’s bedroom and the St. Valentine’s Day card already mentioned.
That brief resume is sufficient, I think, to set the context in which to examine each of the grounds of appeal in turn. I deal first with ground 9 because Mr. Tehan put it at the forefront of his argument for the applicant.
Ground 9
Ground 9 attacks the course taken in the judge’s accepting majority verdicts. It reads:-
"The trial of the applicant miscarried by the receipt of majority verdicts in circumstances where:
(a)the learned trial Judge failed to properly give the jury a perseverance direction in accordance with Black v. R (1993) 179 CLR 44;
(b)the learned trial Judge could not be satisfied that the jury had spent at least 6 hours of orthodox deliberations;
(c)the learned trial Judge effectively indicated that should the jury deliberate for another 15 minutes a majority verdict would prevail; and
(d)the learned trial Judge failed to properly direct the jury on the duty of the jury to reach unanimous verdicts, and that in the absence of such verdicts being indicated, he had a discretion as to whether he would accept majority verdicts.”
What happened was this. On the last day of the trial the jury retired to consider a verdict at 10.26 a.m. At 4.20 p.m. or thereabouts, the judge was contemplating what course to follow, given the hour. According to the transcript this was said by judge and prosecutor in the absence of the jury:-
"HIS HONOUR: .... The jury have indicated to my tipstaff that there is an 11/1 agreement, but that does not constitute a unanimous verdict and I can’t do anything about it at this hour. Excluding lunch, as I am obliged to do, we have got at least another hour and a half to go
MR ROCHFORD: I’m sorry, Your Honour, doesn’t that depend upon whether they deliberated during lunch?
HIS HONOUR: Yes, I think that’s probably right but ---
MR ROCHFORD: I don’t know whether they stayed or left or what happened.
HIS HONOUR: They stayed. It's a grey area. There are cases both ways. I would rather err on the side of caution to be honest. I mean I know what you are talking about and there is a line of reasoning that if they used the lunch hour to deliberate then it can be included, but I don’t rally want to go into asking them whether they used some and if so how much and all that sort of thing. There is no need for pressuring them and I would rather that I didn’t.
MR ROCHFORD: Yes. If Your Honour pleases."
At 4.24 p.m. (and so just short of 6 hours after retiring), the jury entered the court room and were told by the judge that they would be sent home until the morning, once they had been sworn not to discuss the case in the meantime (which was in line with what the judge had just said to counsel). But the foreman then spoke up, and the transcript records this exchange:-
“FOREMAN: We have been discussing it all day and we have come to an 11/1 either way, we won’t tell you what we have decided, but the last person won’t change their mind either way on the evidence we have got and we don’t know how to ---
HIS HONOUR: OK.
FOREMANIt’s not going to make a difference tomorrow or the next day.
HIS HONOUR: There will be an hour tomorrow when I will be able to take an 11/1 verdict but it has not arrived yet. I mean, I have got to exclude the lunch hour from your deliberation period, unless you inform me that you did – did you deliberate through the lunch hour?
FOREMAN: Yes, we did.
HIS HONOUR: The whole of the lunch hour?
FOREMAN:Probably stopped for about 10 or 15 minutes and then we went on with it.
HIS HONOUR: What would the maximum time be that you would not include of the lunch break as being part of your deliberations?
FOREMAN: I would say 15 minutes.”
The foreman having thus fixed the time spent by the jury otherwise than in deliberating over the lunch break, the transcript then continues:-
"HIS HONOUR: 15 minutes. I suppose in that event if we reconvene in 15 minutes we could then take an 11/1 verdict. But I do not want to put any pressure on you. It is better that you reach a unanimous verdict, and you should strive to do so, and time may be of importance to you, it is not – I mean, the accused is entitled to, as you are I am sure well aware, your utmost attention in your deliberations and the court is not in any hurry. We don’t want to put any pressure on you in this respect. [I omit some words] My preference is that you should strive for unanimity even if I allow you another couple of hours. But if you are so entrenched, if you can tell me you are so entrenched that that would be lacking in commonsense, well I will defer to that and we will reconvene in another quarter of an hour. So it is a matter for you, really.”
FOREMAN: We will take that 15 minutes, your Honour.
HIS HONOUR: Are you all agreed on that course? Yes, all right. We will convene again in quarter of an hour.
(At 4.29 p.m. the jury retired to consider its verdict.)"
And as soon as the jury had departed, this was said:-“HIS HONOUR: Obviously I changed direction in mid-stream for reasons of what I hope were commonsense.
MR DOYLE: Yes, Your Honour.
MR ROCHFORD: If Your Honour pleases.
HIS HONOUR: We will resume at a quarter to 5.00.”
At 4.51 p.m. the jury came back into court. The judge said: "Can I take it from what you said before that in each case the verdict will be an 11/1 verdict, a majority verdict, is that the case?" to which the foreman assented. The verdicts were then taken.
The applicant contends that, by virtue of the express provisions of the Juries Act 2000, the judge was not empowered to take a majority verdict until after at least six hours’ had been spent by the jury in deliberation and then, after the expiry of that six hours, considering whether the jury had had a reasonable time for deliberation, having regard to the nature and complexity of the trial: s.46(2) and (3). In this case, Mr. Tehan submits, the judge fell into error by telling the jury before the expiry of the six hours that he would be willing to take a majority verdict at the end of the six hours, thereby depriving the applicant of his right to have the jury deliberate for at least six hours before the possibility of taking a majority verdict was considered under sub-s.(3): see and compare Cheatle v. R.[1], R. v. Muto & Eastey[2].
[1](1993) 177 C.L.R. 541 at 552-3.
[2][1996] 1 V.R. 336 at 338.
The argument turns of the meaning and operation of s.46. The term "majority verdict" is defined by sub-s.(1) to mean, inter alia, a verdict in which 11 out of 12 jurors agree, and sub-ss.(2) and (3) then proceed thus:-
“(2) If, after deliberating for at least 6 hours a jury in a criminal trial-
(a) is unable to agree on its verdict; or
(b) has not reached a unanimous verdict-
the court may discharge the jury or, subject to sub-sections (3) and (4), take a majority verdict as the verdict of the jury.
(3) A court must refuse to take a majority verdict if it considers that the jury has not had a period of time for deliberation that the court thinks reasonable, having regard to the nature and complexity of the trial.”
Subsection (2) refers to the jury's "deliberating for at least six hours" and so the calculation of time spent by the jury "deliberating" is critical to the taking of a majority verdict. (There can be no substantial compliance with such a requirement, as I apprehend what was said by Dawson, J. in Hunter Resources Ltd. v. Melville[3]; the jury either has or has not "deliberated" for at least six hours.) What, then, is the meaning of the word "deliberating" as used in s.46(2)? It cannot mean actually deliberating because that would need inquiry into what happened in the jury room; it surely refers therefore to the time allowed for deliberating, which requires no such intrusive inquiry - and so much seems to me to be borne out very clearly by sub-s.(3); for once time has expired under sub-s.(2) sub-s.(3) poses the question for the judge whether the jury has or has not had a reasonable "period of time for deliberation". That change in expression confirms to me what otherwise appears to be the meaning of "deliberating" in sub-s.(2).
[3](1988) 164 C.L.R. 234 at 249.
Now, in calculating what time has been allowed to the jury for deliberating, it has been held (albeit in relation to a comparable provision of the Criminal Justice Act 1967 in England) that one does not exclude, when once the jury have retired to consider a verdict, time subsequently spent by them in the court room when asking a question of the judge: R. v. Adams & Hogan[4]. Similarly, I suppose, one should not exclude time spent seeking direction, being given further instruction or being reminded of the evidence upon their request: R. v. Rodriguez[5] (a case under s.47 of the Juries Act 1967, the precursor to the present s.46). What surely is excluded is the time spent during any definite break when the jury is away from the jury room; for example at lunch in a hotel, on a stroll through the park, or in overnight accommodation: and so much was opined by Callaway, J.A. in Rodriguez[6]. But one does not exclude a lunch break if the jury remain in the jury room, having a light lunch there (R. v. Doherty[7]) and that is what appears to have happened on this occasion, as disclosed by the exchange which took place between the judge and prosecuting counsel just before the jury came into court at 4.24 p.m. His Honour told counsel that they had "stayed", meaning stayed in their jury room.
[4](1968) 52 Cr.App.R. 588.
[5][1998] 2 V.R. 167.
[6]At 186.
[7][1999] 3 V.R. 436 at 437, another case decided under the previous s.47 which for present purposes was not dissimilar to the current s.46.
In those circumstances, had the judge abstained from inquiring of the foreman about time not spent deliberating during the lunch break, it must have followed that six hours had already been allowed for deliberation by the time the jury returned to their room at 4.29 p.m. But the judge did inquire (contrary to his first intention as conveyed to counsel) and was told that 15 minutes had been spent not deliberating. I am not at all clear that that inquiry was permissible and, it having been made, I am not sure that the result ought not to have been ignored. That, I think, would have been consistent with both Rodriguez and Doherty. After all, it is not difficult to conclude that so long as the jury remained in the jury room the time allowed for deliberation was not interrupted by the eating of a sandwich, any more than it is interrupted by a visit to the toilet. But that was not the argument before us and so I proceed upon the assumption that, once the foreman had made his disclosure about the 15 minutes, that time was properly excluded from the calculation of time allowed for deliberation On that basis, by 4.29 p.m. six hours had been so allowed since 10.26 a.m., less only 12 minutes.
The argument of Mr. Tehan was that what happened in court before the jury went back into their room at 4.29 p.m. in the expectation that they would return in 15 minutes or so, was “a charade” designed to lend an air of propriety to what was in effect the taking of a majority verdict before the jury had been allowed at least six hours for deliberation, contrary to s.46. There were two errors, he submitted. First, he said, under sub-s.(2) there must be at least six hours allowed for “orthodox deliberation” (as he put it) before a majority verdict could be taken and, secondly, under sub-s.(3) the judge had no power to consider whether to take a majority verdict unless and until the expiry of that six hours. As I apprehended it, the term “orthodox deliberation” was used to mean time for deliberation properly so called, as distinct from time for lunch or a stroll in the park or other defined break. In this case, said Mr. Tehan, the extra 15 minutes was not allowed for deliberation in any meaningful way.
Should, then, the last 15 minutes for which the jury returned to their room be dismissed as irrelevant under s.46? It is interesting to note, in passing, that the transcript records that at 4.29 p.m. “the jury retired to consider its verdict”, but of course Mr. Tehan rejected that description. It was, he submitted, no more than a retirement in order to wait out time so that the six hours could expire, necessary to the taking of a majority verdict. But it seems to me that that 15 minutes cannot be so easily dismissed as irrelevant. It was time allowed to the jury for deliberation, however pointless the foreman had indicated such deliberation might be. The judge was concerned with whether to allow another hour or two for deliberation (which meant the jury's returning the next day) or whether, if the jury was so entrenched that there would be no shift in opinions, it would be lacking in common sense not to hear from them again in another quarter of an hour. Mr. Tehan pointed to the fact that, through their foreman, the jury were allowed to choose between these courses, but the question answered by the foreman was as I have just said - whether they should be brought back into the court room in another 15 minutes or sent home so that they might be allowed another hour or two for their deliberations. Given what he had been told, his Honour was prepared to accede to the proposal that the jury might return to the court room in 15 minutes time, but nothing, it seems to me, gainsays that that 15 minutes was time allowed for deliberation. Accordingly, I reject the argument that when the jury returned at 4.51 p.m., more than six hours had not by then been allowed for deliberation. That seems to me to follow because further enquiry into what happened in the jury room is not permitted. Moreover, however pessimistic the foreman was about the likelihood of all agreeing, had all 12 jurors managed to reach agreement during that 15 minutes, the result would certainly not have been flawed.
That being so, the remaining question is whether the judge, in speaking with the jury about the possibility of taking a majority verdict, was acting altogether outside power on the ground that sub-s.(3) comes into play only after the relevant six hours has expired, not before. Again, I reject the argument of error. This was a relatively simple trial, depending all but wholly upon the credibility of the complainant. It had lasted only a matter of days and the evidence was in relatively short compass. There was not the common complexity of the lapse of many years between the offending and the trial; the witnesses were recounting events of comparatively recent origin. Having regard to "the nature and complexity of the trial" as directed by sub-s.(3), it cannot readily be supposed that six hours was not a reasonable period of time for deliberation; quite the contrary. More important, however, is the content of the duty imposed upon the trial judge by sub-s.(3). It is a statutory obligation to "refuse to take a majority verdict" if satisfied that the jury "has not had a period of time for deliberation that the court thinks reasonable”. That obligation did not arise here; for, given what happened and the considerations made relevant by sub-s.(3), it seems plain enough that the judge was quite satisfied that six hours was long enough - that is, that it was a period of time for deliberation that was reasonable (to adapt the words of the subsection). Subsection (3) was simply not called into operation.
For these reasons, I am satisfied that ground 9 is not made out. There was no transgression of sub-s.(2), which empowered the judge to take a majority verdict when the jury returned to court at 4.51 p.m. There was no transgression of sub-s.(3), because, given the circumstances, the court was plainly of the view that a reasonable time had elapsed for deliberation and there was therefore no obligation on the court, at 4.51 p.m., to refuse to take a majority verdict. As to the failure to give a Black direction, such a direction that the jury persevere in their deliberations might have been called for if s.46(3) had come into play or if the judge otherwise thought it proper not to take majority verdicts for the time being, even after the lapse of six hours. But that was not this case. In Black, it should be remembered, the jury had been deliberating only for three hours when they were told to persevere: here they had been deliberating for only minutes short of six hours and the circumstances were markedly different. There is nothing, then, in ground 9.
Ground 3
Ground 3 was sought to be amended. Both as formulated initially and in amended form it was in substance that the judge erred by failing to give the jury directions in relation to the prosecutor’s submission in final address “regarding the complainant’s motive to lie”. That submission came about in the following way.
In the course of the defence case, evidence was led from the applicant’s sister, the complainant's aunt. She said that on the complainant’s birthday on 10 April she had a telephone conversation with the complainant in which the latter complained that she did not like school and wanted to leave “but her dad wanted her to stay at school”. When the aunt suggested that the complainant speak to her parents about the possibility of her leaving school and going to work, the complainant said (according to the aunt in the witness box):-
“That won’t work ‘cos dad’s too strict and he doesn’t let me do what I want to do or go out when I want to go out, and he wants to know what I am doing all the time”.
The witness added:-
"She said to me that she wasn’t happy with it because ‘Dad’s too strict’ and she said, ‘I am going to make him pay for it’. At the time I didn’t even think anything of it because I just thought it was just a figure of speech of a teenager.”
In cross-examination, the witness agreed that this was “just a normal conversation”, she made no note of it, and there was no reason to make any note of it.
In the earlier cross-examination of the complainant, applicant’s counsel put this conversation to the complainant as a motive to lie. First, counsel adverted to the conversation with her aunt in which she said that her father was “too strict”, which led to the complainant's saying that she would “have only been joking”. Nor could she recall discussing with her father's sister her wish to get some extra cash, or wanting a part-time job. Counsel then moved to the motive to lie in these questions (at 94):-
"You told [your aunt] that he [the applicant] was too strict and he wouldn’t let you do what you wanted? --- I don’t remember this conversation.
You told [your aunt] you were going to make him pay for that? --- I do not remember saying that. I never said that. I am not that kind of person. You can ask anyone I know. I don’t go out of my way to hurt people.”
Though the complainant denied the critical exchange, it was common ground on this application that, given the subsequent evidence of the aunt, counsel's questions to the complainant had suggested a motive to lie with the result that the prosecutor was entitled to rebut the existence of the motive or to eliminate or reduce its influence: R. v. Hewitt[8]. The complaint now made is that prosecuting counsel went beyond this, suggesting instead that she had no motive to lie and that the jury should on that account accept her evidence as credible. This, it was said, was forbidden ground: R. v. Palmer[9].
[8][1998] 4 V.R. 862.
[9](1998) 193 C.L.R. 1, a case on the cross-examination of an accused, not a complainant.
In his final address, which of course preceded that of applicant’s counsel, prosecuting counsel mentioned the conversation which the aunt had recounted and which the complainant had denied. Anyway, counsel continued:-
"It wasn’t a big deal. That’s what [the aunt] told you. Just the sort of thing teenagers say. She didn’t pay it any particular attention. ... Well, it’s going to be suggested to you this is a motive for her to make all this up.
Give that whatever weight you think is proper. Consider it. And I say reject it. Because it’s nonsense. What, because her father was too strict she’s made all this up? She’s come here and given evidence. This is fun for her? Do you think she was having fun when she was being cross-examined in the last few days as you saw? Or do you think it was a fairly traumatic event in her life to come here and do this? So she’s going to make it all up, to get [the applicant], to make him pay. If that’s what it was about – assess it, give it critical analysis – if that’s what it was about, she doesn’t even need to go to the police. [The applicant has] gone in July. It’s three weeks later that the police get told about it. He’s gone. He’s out of the house. The strict father – phtt - gone. He’s been asked to leave and he’s left. She doesn’t have to make a complaint to the police and give evidence about it, subject herself to a possible charge for perjury, if she’s telling lies and made it all up. And the real point of [the aunt’s] evidence – she doesn’t, she can’t say precisely what was said because it wasn’t a big deal. No reason to remember it at the time. Just another conversation you had with a teenager and that’s the end of that.”
The reference to "three weeks" between the applicant’s leaving the house and the making of complaint to police was later corrected: it was really only 7 days, but in itself that does not matter now. In the absence of the jury, defence counsel objected to the address of the prosecutor as going beyond what was permitted and the prosecutor, without agreeing, revisited the point when, in resuming his address, he corrected the error about the three weeks. But again defence counsel objected. The judge said he thought that the way in which it had been argued “in this session was valid” and applicant’s counsel said that he agreed. The judge expressed the opinion that what had just been said “overrode what he [counsel] said before”, but that if applicant’s counsel desired him, the judge, to say something more to the jury about it, he would consider it. Applicant’s counsel said he would think about that “because it might accentuate the problem”, which the judge said he fully understood. His Honour added:-
"It hasn’t been a major matter and I think by the time everybody has finished I don’t think it will stick out in their minds”.
Some time later, during a break in the judge's charge, applicant’s counsel said:-
“Your Honour I thought about that issue in relation to an absence of motive direction overnight and it’s my view that it would only highlight the matter and therefore basically it’s better that that direction is not given.”
To which the judge responded:-
"Yes I’m sure that’s a correct interpretation. As you I think yourself conceded, quite correctly, it is by no means a case where it has been made a central issue in the Crown arguments or evidence, so from my own point of view I am happy with the fact that it was a fairly minor reference and it was covered by a second expose which I think was done in a more proper fashion.”
The judge then continued with his charge.
In all the circumstances I see nothing in the point now raised by applicant’s counsel. First, I do not agree that prosecuting counsel went beyond a submission that there was nothing in the suggested motive to lie. He contrasted the suggested motive, which he implied was slight, with the task, which he said was considerable, set by the complainant for herself when she told the police of the alleged offences. I do not read what was said as amounting to a submission not only that the suggested motive to lie was not credible, but that the complainant had no motive to lie and that therefore her evidence should be accepted. Counsel's address simply did not go so far and there is nothing therefore in ground 3. That counsel himself abandoned any application to have the judge say something about motive to lie in his charge can only reinforce that conclusion.
Ground 5
Ground 5 asserts error in the judge’s failing to direct the jury upon prior inconsistent statements. It is the fact that during cross examination defence counsel put to the complainant what she had said on earlier occasions (when she made her statements to police or at the committal proceeding) and counsel relied in particular upon passages in the transcript at 78-80 and 98-102. But on examination what had been put were not previous statements inconsistent with her present testimony but a failure to state before what she was now saying on oath. When this was pointed out, Mr. Tehan did not pursue ground 5.
Grounds 6 and 7
Ground 6 alleges error in the judge’s failing properly to relate the facts of the case to the elements of the offence and ground 7, error in the judge’s directing the jury that they should evaluate the evidence of the complainant by determining “which category of credibility and reliability the complainant fell into”. As argued, the burden of the complaint was the latter rather than the former.
It is common ground that the central issue of this trial was whether the jury accepted the complainant’s evidence that the alleged offences had occurred. The case was a straightforward one, consisting of a series of allegations made by the complainant about sexual misconduct by her father. If the jury accepted her as a reliable witness, all of the elements of each of the offences were made out. In charging the jury, the judge did not summarise the evidence, nor did he summarise counsel's addresses; for the trial had been relatively short. Instead he dealt with the respective approaches taken by counsel in their addresses to what were called "glitches" in the complainant's evidence. When he turned to the jury's task of evaluating the evidence, after adverting to the significance of demeanour, age, memory and the like, he said:
"Use your commonsense, as I said before. If I can just steal a bit of what Mr. Rochford said for a minute; and, I mean, that is what probably, to a large extent, one of the major features of this case will be; to what extent are you going to be affected in your assessment of her, Christina’s evidence, by the fact that she obviously had glitches in her evidence. There is no question about it. There were occasions when her memory was faulty; there were occasions where she gave inconsistent evidence; there were occasions where she said things one minute and said different things the next minute. I do not propose to go – well, counsel, this very afternoon, have each put their slants on different aspects of that, and I will not go through that again”.
His Honour then told the jury that when evaluating evidence in such circumstances they might properly distinguish between core factors and peripheral factors, making the point that errors in the latter were ordinarily quite common and might not be so significant as errors in the former. He then proceeded:
"Now that does not mean that you ignore the peripheral aspects, obviously. If the witness gets too many of those wrong - well, it is a matter for you - I mean, you might say if they get any of them wrong; but it would seem - and this is, I suppose, a comment from me rather than anything binding - but I suppose there comes a point in evaluating a witness where you may say ‘Well, look, he or she was just getting so many things wrong, so many dates wrong, so many peripheral facts wrong, that I just cannot regard her or him as reliable on the core factors’. Now you will get that situation, obviously. But you will get other cases, where you say, ‘Well look I’ve heard the person give the evidence, I’ve heard the core things described pretty much to my satisfaction. Of course, yes, certainly there were inconsistencies and memory lapses on some other factors, but I find that forgivable as part of human frailty and it doesn’t prevent me from accepting the core events beyond reasonable doubt.’"
The judge added:-
"Well, you are going to have to decide which category this case falls in, because, obviously, as I say, there have been glitches in [the applicant’s] evidence, and [defence counsel] says they are sufficiently significant that you cannot rely on her on the major descriptions, whereas [the prosecutor] says the opposite, and says, ‘Well, look, when you analyse it, perhaps you should be forgiven for some of these inconsistencies, or alternatively, in any event, they are not so major that you should wipe off her evidence about the major offences in any case.’"
His Honour then rounded this aspect off by saying:-
"Because after all, it is true that you do not have to accept all of what a witness says to be able to accept the major part of what they say. It is not an all or nothing situation, it is quite open to a jury in any case to accept some of what a witness says beyond reasonable doubt and not be satisfied of other things beyond reasonable doubt.”
Mr. Tehan's submission was that the judge's reference to the complainant's falling into one "category" or another was unacceptable, and he sought to call in aid this court's decision in R. v. Hyatt[10]. But that related to the evidence given by an accused, which is very different from this, and I am not persuaded that there was any relevant error here. In the context of this case, the contrast in result between accepting the complainant's evidence as proof of guilt to the required standard and not doing so was properly brought home to the jury; and, as both counsel in final address had made play of the "glitches" in her evidence, it was appropriate for the judge to deal with the consequences of those "glitches" as he did. Indeed it was defence counsel who had emphasised the complainant’s mistakes “around the fringes" of "the basic story", as undermining her credit. Mr. Tehan's argument tended, I think, to overlook that, in the passages which I have set out the judge was dealing in particular with errors in what might be regarded as peripheral matters (as distinct from errors in core matters), and so understood what his Honour said cannot be impugned. Mr. Tehan submitted that his Honour was wrongly putting the defence arguments into the category of peripheral matters, but that is not a fair reading of what was said. In context, his Honour was doing no more and no less than trying to assist the jury in their evaluation of the evidence, and in particular the evidence of the complainant, and I cannot detect error in that regard. Grounds 6 and 7 are not made out.
[10][1998] 4 V.R. 182.
Ground 8
Ground 8 alleges error in the judge’s suggesting to the jury that his directions upon delay in making complaint were in the nature of comments.
First, the judge described the evidence about complaint, saying:-
"The matter has arisen, and the defence has raised the criticism, if you like, leaving aside the complaint when she was six or seven years old, that there was really no complaint by her until, I think, it was mid or late July of 2000, and then there was another one a couple of weeks later that led to things coming to a head in early August of 2000. So, effectively, the evidence before you – and it is a matter for you to what extent you accept it, of course – is to this effect, as I see it: That [the applicant] raised the matter of her father touching her inappropriately initially when she was six or seven or thereabouts, but for some reason, whether it was concern about her father’s reaction or whatever, she reneged on it and ended up saying it was uncle George, that it deflected the allegations against uncle George. I mean, it is a matter for you – this is a comment from me – but whether you place much emphasis in any way about reactions of a six or seven year old is a matter for you.
But in any event, if we put that to one side, it does not seem to be arguable that there was no further complaint made or report made in any way by [the complainant] until the July and then August of 2000. So the July one, you will remember, was when she told her mother a part of it, and then she reneged again, allegedly through concern or fear of her father, but at the same time she said she secretly told her mother that she was not lying. And then in August of 2000 she made the final revelation of everything the day that she was home from school and was going to the youth group meeting, and you will remember that.”
The point being made by the defence was then put thus:-
"If there was no complaint made till July or August, well, then why? That was a criticism made; no complaint, mother knew nothing about it, no suspicion till around July of 2000.”
That was the context in which the judge proceeded to tell the jury how they should approach the evidence of complaint and any delay in making it. First, he said, a complaint was only hearsay: it was not evidence of the facts. Secondly, as to delay his Honour said that "there may be good reasons for delay by a victim of a sexual offence, particularly a child against a family member, hesitating before bringing it up." After elaborating a little on that aspect, the judge then told the jury of "a balancing consideration which you should also be aware of" namely "that you may, if you think it is appropriate, treat [the applicant’s] failure to complain as a factor affecting the credibility of her evidence".
Mr. Tehan accepted that in so saying the judge's remarks properly encompassed the considerations arising both out of s.61 of the Crimes Act 1958 and R. v. Kilby[11]: see also R. v. Hewitt[12]. His complaint focussed on the judge's concluding remarks on the topic, which were as follows:-
"So you have got two considerations, and it is a matter for you. My task is to make you aware of both factors, and I have. It is a matter for you what you do with that information, but be aware of it. On the one hand, it may be understandable about the hesitancy for the reasons I have mentioned; on the other hand, you may wish to use it if you see it as appropriate as affecting the credibility of the person concerned, namely, [the complainant]. So you have got a comment going both ways on that.”
[11](1973) 129 C.L.R. 460.
[12][1998] 4 V.R. 862.
Counsel levelled his criticism at the last sentence, which, he urged, relegated what had just been said, including "the Kilby direction" (as it commonly described), to mere comment by the judge (which ex hypothesi could be disregarded), as distinct from a direction (which could not). But the point is more apparent than real. Both under s.61 and Kilby what is required of the judge is that he tell the jury how they may approach delay in complaining; both require a direction about what may be taken into account when weighing the significance of delay because of two competing possibilities: the one, that delay is explicable and does not go to credit at all and the other, that it may not be so explicable and may go to credit. But because both involve directions only about how the jury may view delay, I cannot see how the judge's final statement about “comment going both ways” could possibly have misled. His Honour obviously meant only that what he had just said to them (albeit that he was required by law to say it) tended in different directions; that is, it was "a comment going both ways" - and I see no error when that remark is taken in context. There is nothing in ground 8.
Ground 10
Ground 10, the ground which was added as late as 27 February last, is that the trial miscarried because the judge failed to satisfy himself, under s.400(6) of the Crimes Act 1958, that the complainant was aware of her right to apply for exemption from giving evidence under s.400(3). The complainant had that right because she was a child of the accused, but it is quite unreal, in my view, to suppose that the complainant might have availed herself of that right when the trial depended wholly upon her evidence (and indeed upon her complaint in the first place) and she had already given evidence at the committal. It is highly improbable that any of the considerations mentioned in s.400(6) would justify granting an exemption: for example, given the complaint and the committal hearing there was surely no relevant "relationship" to protect. The position of a child who, after complaining to police of sexual abuse by a parent, has given evidence at the committal proceeding seems to me very different from that of a witness under subpoena brought to court by some third party to testify against a parent or child. However that may be, Mr. Tehan accepted that, by virtue of R. v. DJT[13], the failure of the judge to make inquiry of the complainant about the possibility of her seeking exemption was not such an error as on its own to cause a miscarriage; he said that the error was only being relied upon under ground 1, in conjunction with other errors. As will be seen, there is therefore no need to express any final view on ground 10, and I refrain from doing so. I would add only that, although Mr. Tehan attempted to distinguish DJT on the ground that there the witness had been told, albeit on a separate occasion, of the right conferred by s.600, the case cannot be so distinguished because that other occasion was subsequent to the conclusion of the trial at which the evidence in question was given.
[13][1998] V.R. 784. Special leave to appeal against this decision was refused by the High Court.
Ground 1 and conclusion
Grounds 2 and 4 were not relied upon in argument and so ground 1 is the last remaining ground in the notice of application. It asserts generally that the verdict was unsafe and unsatisfactory. Mr. Tehan, however, does not contend that the verdicts are unsafe and unsatisfactory in the sense explained in M v. R.[14]. Rather, he submits that a re-trial should be ordered because of a combination of errors made during the course of the trial: R. v. Kotzmann[15]. As for the reasons already given I see nothing in any of the other grounds relied upon, it follows that ground 1 too must fail.
[14](1994) 181 C.L.R. 487 at 493.
[15][1999] 2 V.R. 123 at 157.
Accordingly I would dismiss this application.
Before leaving this matter, I add a word about the course to be followed if the sort of argument we heard in relation to ground 9 is to be avoided. Where a jury returns pleading deadlock shortly before the expiry of the six hours referred to in s.46, then, even in a case where the judge considers that six hours is a reasonable time for deliberation, it would perhaps be wiser for the judge, instead of mentioning the possibility of taking a majority verdict once the six hours has expired, to send the jury back to their room to persevere in their deliberations, for the time being. In this case, that would have meant sending the jury back at, say, 4.30 p.m. to deliberate for a further period and then at, say, 5 p.m., recalling them to the courtroom, without any need for prior notice, to see if they had reached a unanimous verdict. If at that point the foreman said that they were still deadlocked although 11 were in agreement, it would be time enough for the judge to consider s.46(2) and (3). That should avoid any problem such as was agitated on this application.
BUCHANAN, J.A.:
I agree with Phillips, J.A. that the application should be dismissed for the reasons he has stated.
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