R v Wang
[2007] VSCA 296
•14 December 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 363 of 2006
| THE QUEEN |
| v |
| SIMON KHEING WANG |
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JUDGES: | BUCHANAN JA and COLDREY and CAVANOUGH AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 November 2007 | |
DATE OF JUDGMENT: | 14 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 296 | |
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Criminal Law – Sexual offences – Delay in complaint - Kilby direction not required in the circumstances of this case – Trial judge’s directions to jury on complaint adequate – Inconsistent verdicts – Verdicts of guilty not unsafe or unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams SC with Mrs C M Quin | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr M J Croucher | Galbally Rolfe |
BUCHANAN JA:
After a trial in the County Court, the applicant was convicted on one count of taking part in an act of sexual penetration with a child under the age of 16 years (count 4), one count of false imprisonment (count 6) and one count of committing an indecent act with or in the presence of a child under the age of 16 years (count 9). The applicant was acquitted on four other charges of committing an indecent act with or in the presence of a child under the age of 16 years and one count of sexual penetration with a child under the age of 16 years.
A plea was conducted and the applicant was sentenced to be imprisoned for a term of three years and six months on the count of sexual penetration, a term of six months on the count of false imprisonment and a term of one year on the count of committing an indecent act. The sentencing judge said that the total effective sentence was five years’ imprisonment, a result which could only have been produced by total cumulation of the individual sentences. His Honour fixed a minimum term of three years’ imprisonment before the applicant was to be eligible for parole.
The applicant seeks leave to appeal against both conviction and sentence.
The conduct the subject of the counts on which the applicant was found guilty was alleged to have occurred between November 2000 and April 2005, when the applicant was aged between 40 and 44 years and the complainant was aged between nine and 13 years. The complainant was the applicant’s niece by marriage. She lived with her parents in a house in the same street in which the applicant lived. The applicant and his wife and the parents of the complainant all had children and worked. They co-operated with each other in looking after the children. The offences were alleged to have taken place in the house of either the applicant or the complainant.
The principal prosecution witness was the complainant. Her evidence with respect to count 4 was that on some 50 occasions the applicant inserted his fingers into her vagina. She said that the acts occurred mainly at weekends, between November 2000 and November 2004. The Crown alleged that the conduct the subject of count 6 occurred at the same time as an indecent act with the complainant (count 7) and sexual penetration of the complainant (count 8). The complainant’s evidence was as follows. She was in a room at the applicant’s house with her cousin and her brother. The applicant pulled the complainant down to sit next to him and tried throwing a blanket over her. The complainant moved to stand next to her cousin, and the applicant pulled her down again. That happened a few times. The applicant then picked up the complainant, placed her over his shoulder and took her to a spare room. He closed and locked the door and put the complainant on the bed in the room. The complainant tried to get out of the room, but the applicant kept pushing her down on to the bed. He took off the complainant’s pants and underpants and started touching her vagina, which he penetrated with his finger. The applicant was acquitted on the counts of an indecent act and sexual penetration. The complainant’s evidence with respect to count 9 was that in November 2004 the applicant touched her breast with his hand under her brassiere.
The complainant said that on the day following the events constituting count 9, she telephoned her cousin, the applicant’s daughter. The complainant in evidence said: ‘I just remember telling her that her dad’s been abusing me.’ When asked whether that was the word she had used, she said: ‘Yeah, more harassing.’ Later, she gave evidence that she had said to her cousin: ‘he was touching me … just touching.’
At a voir dire, the cousin confirmed on oath that such a complaint had been made to her by telephone. An application, however, was made on behalf of the cousin pursuant to the provisions of s 400 of the Crimes Act 1958 to be exempted from giving evidence against her father. The application was granted. Accordingly the only evidence of the complaint heard by the jury was that given by the complainant.
The complainant’s brother and father gave evidence. The brother said that on four or five occasions he heard the complainant yelling words such as ‘get away’, ‘fuck off’ and ‘stay away from me’ to the applicant, who was in the habit of visiting the complainant’s house in the afternoon when the complainant’s parents were working. He said that he observed the applicant placing an arm around the complainant or touching her on the shoulder on a few occasions in the period between 2000 and 2004. The father of the complainant described the close relationship between his family and the family of the applicant and said that the applicant and he visited each other’s houses.
The first ground of the application for leave to appeal against conviction is that the trial judge erred in his directions concerning delay in complaint, and in particular that he erred in failing to give a Kilby direction, in giving disproportionate emphasis to reasons why the complainant might have failed to complain and in putting to the jury in this connection arguments for the applicant that addressed a different issue.
Counsel requested the trial judge to give a Kilby direction. In R v Kilby Barwick CJ said:
It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given. [1]
[1](1973) 129 CLR 460 at 465. See also R v WEB (2003) 7 VR 200 at 209 (Charles JA).
The trial judge did not give a direction in those terms. Instead, he reminded the jury that, save for the complaint made by the complainant to her cousin with respect to the last incident, which was alleged to have taken place in November 2004, the complainant did not make any complaint which could be called a recent complaint. His Honour said that, in considering the question of complaint, the jury would need ‘to take into account the context, that is, her age at the time, the relationship between the two families and any sort of cultural issues.’ His Honour repeated the prosecutor’s observations as to the age of the complainant, the relative social isolation of the families of the applicant and the complainant, the fact that the complainant’s mother suffered from a mental illness and the fact that she was not very close to her father. The trial judge continued by reminding the jury that counsel for the applicant had asked the rhetorical question that if the assaults were being committed, why did not any other member of the family see what was happening? The trial judge canvassed particular instances when defence counsel was able to point to the presence of other members of the complainant’s family.
In R v Kilby Barwick CJ held that, in the particular circumstances of that case, the instruction which ‘ought as a general rule to be given’ might ‘reasonably be omitted.’ In R v EO Winneke P, dealing with a contention that a trial judge erred in failing to give a Longman warning, said:
It must be observed that the nature of any warning which is to be given to a jury in any particular case is very much a matter for the trial judge who is familiar with the atmosphere of the trial, and who has the primary responsibility for ensuring that the trial is fair. … It is of course obvious that no two cases are alike; and it is not possible to argue that, because a Longman warning was given in one case, therefore it must be given in another. The facts of the particular case will govern the nature and type of directions which the trial judge believes are appropriate. [2]
In my view, these observations are pertinent to a Kilby direction.
[2](2004) 8 VR 154 at 157 [7].
In the circumstances of this case I consider that the trial judge, having stated that there was no recent complaint, was not required to dilate upon the consequences or significance of delay in making complaint. His Honour did tell the jury that there was no recent complaint in respect of most of the counts and complied with the duty cast upon him by s 61 of the Crimes Act 1958 to inform the jury that there may be good reasons why the victim of a sexual assault may hesitate to complain about it. There was, however, reference to a recent complaint about the conduct said to constitute count 9 and that was the last occasion on which it was said that the applicant sexually assaulted the complainant. The complaint was in general terms and could have been viewed as referring to the whole of the applicant’s conduct. I do not think the trial judge’s reference to counsel’s reliance upon the failure of other members of the complainant’s family to notice the applicant’s conduct was entirely misplaced. Like the absence of complaint, the point went to the credit of the complainant.
In my view the directions which the trial judge gave were adequately tailored to suit the facts of this trial. The experienced counsel in the trial were of the same view, for counsel for neither the prosecution nor the defence took any exception to his Honour’s direction in respect of this matter.
The second ground made further complaints about the direction as to recent complaint. It was said that the trial judge erred,
(a) in failing adequately or at all to direct
(i) that it was for the jury to determine whether a complaint was made and, if so, whether it was consistent with the complainant’s account of the event giving rise to count 9;
(ii)that such evidence does not provide evidence of the facts stated in the complaint;
(iii)that it does not in any way at all assist to prove the truth of the facts alleged;
(iv) that those facts must be proved by other evidence;
(v) that it is not a source of corroboration; and
(vi)that, because the evidence of the complaint came only from the complainant, it was even less capable of bearing on consistency of conduct;
(b)in directing that “it does not provide independent evidence and to the extent that it does, it is used to try to bolster her evidence”;
…
(d)in misstating the evidence by directing that the complaint was made to “her friend and cousin” and then that “the complaint it seems was made at school but limited to complaining to her cousin”;
(e)in denying counsel the opportunity to develop his argument that the alleged complaint might not have occurred.
The trial judge’s direction to the jury with respect to the complainant’s evidence of her complaint to her cousin was initially confined to reminding the jury of the complainant’s evidence. After the prosecutor took exception, the trial judge said to the jury:
The other matter is evidence of recent complaint, and you have evidence from her that she ultimately complained to her friend or her cousin and that occurred after – in fact was the last occasion that it is alleged that a – when she was sexually assaulted by the accused man.
Recent complaint, it is not separate evidence, it comes from the same person, so it can only be used as evidence of consistency of conduct. And recent complaint, obviously, as evidence can vary greatly in its strength, you can have recent complaint of a woman in a disrobed state escaping from a room and complaining that she has been assaulted, or you can have it, as probably more often happens, at a later time but in this case it occurred very shortly after the last alleged indecent assault upon her, or assault upon her if you accept that assault occurred. She has not, or did not at the time complain specifically about earlier events. I think her complaint was made in global terms, but she does not refer specifically to the other incidents when she claims in her evidence that she was assaulted. However, the evidence can only be used as evidence of consistency of conduct. It goes no further than that. It is just that, I suppose, there is a presumption that if someone is assaulted then they are likely to complain about it. In this case she made a complaint initially to her cousin and then subsequently she says she complained to her school friend. But that is as much as you can – it does not provide independent evidence and to the extent it does, it is used to try to bolster her evidence, but, as I say, it still comes from the same source.
Counsel for the applicant took no exception to the redirection other than to say there was no evidence of a complaint to anyone at school. The trial judge then told the jury that ‘the complaint it seems was made at school[3] but limited to complaining to her cousin. There was not a second complaint.’
[3]The complainant’s evidence was that she telephoned her cousin.
In my opinion, having regard to the evidence relating to the complaint, and the issues in the trial, the trial judge’s directions were adequate. In his cross-examination of the complainant, counsel for the applicant suggested only that there was no complaint because there was no conduct of which complaint could be made. In his final address to the jury, counsel for the applicant took issue only obliquely with the complainant’s evidence of making complaint soon after the last assault.
The trial judge did emphasise to the jury that the complaint could only be used as evidence of consistency on the part of the complainant. He also told the jury that the complaint was made in global terms and did not refer specifically to any particular incidents. In my view, the judge’s aside, that ‘it does not provide independent evidence and to the extent it does, it is used to try to bolster her evidence’, was not likely to have led the jury to misuse the evidence. When the sentence is taken as a whole, I consider his Honour would have been understood to mean that the evidence of complaint did not provide independent evidence because it was evidence from the complainant. The trial judge did tell the jury that there was no corroboration of the complainant’s evidence in respect of any of the counts and that the only evidence of the complaint was that of the complainant herself, saying ‘it still comes from the same source’. In my view the absence of any exception to the content of the directions supports the conclusion that, considered as a whole, the directions were adequate.
As to the complaint that the trial judge prevented counsel for the applicant developing an argument that the complaint might not have occurred, the following transcript of discussion between defence counsel and the trial judge reveals a firm view on the part of the trial judge that counsel should not put to the jury that the complainant had not complained to her cousin:
HIS HONOUR: But I don’t think you can say that she didn’t make a complaint.
MR CASH: Yes your Honour, that’s right. But what I can also do with respect, is undermine the suggestion and cast doubt upon as to whether she did in fact make a complaint.
HIS HONOUR: No, I don’t think you can do that.
…
HIS HONOUR: I think it’s quite clear from the limited evidence [the complainant’s cousin] gave and from her witness statement – admittedly she may not have sworn up to her witness statement – she did see something of the nature of the complaint.
MR CASH: Yes.
…
HIS HONOUR: You can’t go to the jury and say no complaint was made.
MR CASH: I accept that, because the accused wasn’t there at the time. He can’t instruct me that the complaint was not made.
…
MR CASH: No we don’t know that a complaint was made, your Honour. We know that the evidence is that a complaint was made. The accused can’t say or can’t put that a complaint was not made because he wasn’t there. But given that he maintains there were no acts committed by him he’s able to, I suggest, legitimately seek to undermine the suggestion that there was a complaint made because
HIS HONOUR: I don’t think you can do that.
…
HIS HONOUR: I’m trying to skirt around the problem of knowing basically the evidence that could have been given but for s 400.
MR CASH: Yes, your Honour.
As Coldrey AJA has explained in his reasons, counsel could not dispute the fact that complaint had been made to the complainant’s cousin without undermining the basis upon which he had successfully excluded evidence of later complaint.
The third ground of the application for leave to appeal against conviction was in these terms:
The learned judge erred in failing adequately or at all to warn the jury of the dangers of convicting on the evidence of the complainant, particularly in view of the forensic disadvantages to the applicant in defending such imprecise and delayed allegations, the complainant’s age at the time of the alleged offences, her poor memory, the lack of details surrounding some of the allegations and the absence of corroboration.
As I have said, the trial judge did tell the jury that there was no evidence corroborating the testimony of the complainant. Earlier, he had said:
It is important that you scrutinise her evidence with the greatest of care and look to see whether there is any other evidence that has been led in this trial which supports her evidence of the events which took place.
His Honour went on to say that the prosecution bore the onus of proving its case beyond reasonable doubt, a burden which never shifted, and that if there were any deficiencies in the prosecution case, the defence was to benefit by it. He reminded the jury that the complainant conceded that she had difficulty remembering events some years in the past. He said that the fact that the events were now some years old caused disadvantage to the applicant. His Honour also said that the lack of precision in the complainant’s evidence made it difficult for the applicant to respond. He said:
If a date is fixed, or an approximate date, he may be able to think back and say, “Oh, well, I was in another city when it occurred” or whatever, but here the date is a floating concept and so it puts any accused person under a severe disadvantage in attempting to defend themselves … because of the delay and the significant delay in making any complaint, you need to scrutinise her evidence very carefully and you need to look to any other evidence that you find which would support her evidence, and I have told you that there is no corroboration in respect of any of the offences.
In the circumstances of this case, in my view the trial judge was not required to say more as to the consequence of the delay or as to factors that bore upon the credibility of the complainant. The facts that might be said to have created a danger that the complainant’s evidence might be unreliable must have been apparent to the jury without further direction from the trial judge. See Bromley v R[4]. His Honour did refer to the lack of corroboration, the delay, the age of the complainant, and the difficulties posed to the defence by the lapse of time and imprecision in the complaints.
[4](1986) 161 CLR 315 at 319 (Gibbs CJ); R v Miletic [1997] 1 VR 593 at 606 (Winneke P).
The fourth ground is that the charge to the jury was disjointed and confused. Counsel complained that the concepts of delay in complaint, the reasons for the delay and the forensic disadvantages caused by it to the applicant were all run together, that directions on false imprisonment were left out of the original directions on the elements of the offence and the summary of evidence and were given at later points in the charge, that directions on the evidence relating to count 4 were not given in the summary of evidence, but were given later in the course of redirection, that limited directions on recent complaint were originally given followed by more detailed directions almost a day later, and that there was disruption and delay in complying with the jury’s request to have the VATE tape replayed.
The evidence in the trial occupied but one and a half days. The duration of the charge and redirections were mainly the result of the jury requesting the replaying of the complainant’s evidence and issues that arose concerning the witness whose evidence was excluded pursuant to the provisions of s 400 of the Crimes Act. The central issue in the case was the credit of the complainant, and in my view that issue and its ramifications were put before the jury so that they could have been under no misapprehension as to how they were to deal with the evidence. No complaint was made by counsel for the applicant at trial that undue prominence was given to any parts of the Crown case by reason of the structure of the charge.
The fifth ground is that the aggregation of errors identified in grounds 1 to 4 caused the trial to miscarry. In my view none of the alleged errors individually or in combination brought about a miscarriage of justice.
Ground 6 was that the verdict of guilty on count 6 was inconsistent with the acquittals of counts 7 and 8.
Counts 6, 7 and 8 arose out of the same incident. The complainant’s evidence was that, while her brother and cousin were present, the applicant picked her up, put her over his shoulder, took her to another room, locked the door and placed her on the bed, and, whilst there, removed her pants and rubbed her vagina and digitally penetrated her vagina.
The counts reflected different aspects of one incident or transaction. There was nothing about the manner in which the complainant gave her evidence or any matter put to her in cross-examination which could serve to distinguish the credibility of one part of her account from another. In my opinion the jury could not consistently believe her account of the events up to and including the locking of the door and disbelieve her account of events after the door was locked. I regard the verdict of guilty on count 6 as ‘an affront to logic and common sense and strongly suggest[ing] a compromise of the performance of the jury’s duty … [or] confusion in the minds of the jury or the misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.’ [5]
[5]Mackenzie v R (1966) 190 CLR 348 at 368 (Gaudron, Gummow and Kirby JJ).
Accordingly, I would set aside the conviction on count 6 and order that a verdict of acquittal be entered on that count.
The last ground of the application for leave to appeal against conviction is that the verdicts of guilty were unsafe and unsatisfactory in the sense that no reasonable jury properly instructed could be satisfied beyond reasonable doubt of the applicant’s guilt. The applicant relied upon the complainant’s concession that she had a poor memory of the incidents, the lack of detail in her evidence, the absence of evidence of recent complaint, the absence of corroboration, the delay between the commission of the offences and the trial, the applicant’s good character and the jury’s acquittal on other counts.
I refer to what I have already written in respect of particular complaints made on behalf of the applicant. There were aspects of the Crown case which might be criticised, but in my opinion it is important to distinguish between matters which were capable of being viewed by a jury as undermining the strength of the Crown case and matters which would require any reasonable jury to conclude that the Crown had not proved its case beyond reasonable doubt. In my opinion the matters advanced on behalf of the applicant in this case fall into the former category. The complainant’s evidence was capable of being accepted by the jury and, if accepted, did establish the elements of each of the offences in respect of which the applicant was convicted. The jury were directed that they could accept some parts of the evidence of particular witnesses and not others. Having regard to the nature of the allegations and the events surrounding them, in my view the jury were entitled to entertain a reasonable doubt as to parts of the complainant’s evidence, but were not required to have reasonable doubt as to those parts relating to counts 4 and 9.
For the foregoing reasons, save as to the conviction on count 6, I am of the opinion that the application for leave to appeal against conviction should be dismissed.
As I think the conviction on count 6 should be quashed, it is necessary to re-sentence the applicant.[6]
[6]See s 569(1) of the Crimes Act 1958.
The applicant is now 47 years’ old. He has no prior convictions. The applicant was born in Laos in 1960 and came to Australia at the age of 19 years. He came to Australia alone. His family live in America. The applicant originally lived in Adelaide where he conducted a clothing business. In 1989 he moved the business to Melbourne. The applicant is married with children. The applicant and his wife own a house in Mill Park, which is subject to a restraining order made pursuant to the provisions of the Confiscation Act 1997. As a consequence of the charges brought against the applicant, he closed down his clothing business and sold machinery to pay for his legal representation. The applicant will be required to continue to comply with the reporting obligations imposed by the Sex Offenders Registration Act 2004 for the remainder of his life.
The offences encompassed by counts 4 and 9 were grave. Although the complainant said that there were many occasions upon which the applicant placed his fingers in her vagina, she gave no evidence identifying particular offences. The judge said:
I accept your counsel’s submission that in sentencing you on [count 4], I should sentence you only on the basis of the evidence which she gave as a single act of digital penetration and there is no basis upon which I could properly sentence you as if there was evidence that you had committed multiple acts of sexual penetration …
Nonetheless, the offences represented a gross invasion of a vulnerable girl by an older relative trusted with her well-being.
I would re-sentence the applicant to be imprisoned for a term of three years on count 4 and to a term of one year on count 9. I would cumulate six months of the sentence on count 9 on the sentence on count 4. The total effective sentence would be three years and six months’ imprisonment. I would fix a minimum term of two
years’ imprisonment before the applicant is to be eligible for parole.
COLDREY AJA:
I agree with the reasons advanced by Buchanan JA in concluding that this application must be dismissed. I also agree with his proposed disposition of this matter.
I do, however, wish to comment upon the submission that the trial judge was in error in preventing counsel for the applicant developing an argument that the complainant had not complained to her cousin about the applicant’s sexual behaviour.
In a voir dire, held prior to the empanelment of the jury, the complainant’s cousin (the daughter of the applicant) indicated that she did not wish to give evidence against her father and sought to be excused from doing so pursuant to s 400 of the Crimes Act1958 (the Act). Nonetheless, she affirmed her evidence on the VATE tape that, towards the end of 2004, the complainant had informed her that her father was touching her. At no stage did the witness resile from her evidence that the complainant spoke to her about these activities of her father. In fact, when questioned on the voir dire as to why she did not wish to give evidence, she stated:
Because it will be too difficult and hard for me to give evidence against my father.
In what way? - Well, I love him and that it will put a lot of strain against me and my family if I was forced to give evidence under my free will, and although I’m mad at him and upset with what he did, I still want to maintain … a close relationship with him and I want to rebuild what we had despite I’m angry at him.
Following the trial judge’s ruling exempting the cousin from giving evidence, there was discussion about whether further, and later, complaints to other persons could be characterised as recent. In the course of that discussion this exchange occurred between the trial judge and counsel:
HIS HONOUR: But, in fact, she [the complainant] did make a complaint at
the first opportunity.
DEFENCE COUNSEL: As soon as possible, yes.
HIS HONOUR: And so it’s very hard – and I come back to that, because it seems to me to create a problem.
DEFENCE COUNSEL: She can still give that evidence that she complained to the cousin.
HIS HONOUR: Yes, she can certainly give that evidence, and you can’t say anything about it.
DEFENCE COUNSEL: I would have to be particularly careful about what I said.
HIS HONOUR: You would.
DEFENCE COUNSEL: Yes. Conscious –
HIS HONOUR: Conscious of what a cross judge might do.
DEFENCE COUNSEL: What a cross judge might do; and that’s why, Your Honour – that’s one of reasons why, if Your Honour appreciates that counsel isn’t going to be making the sort of submissions which would be prohibited, this latter complaint evidence should more readily be excluded. [My emphasis].
However, notwithstanding these comments, defence counsel subsequently cross-examined the complainant on this issue in these terms:
If that’s the case, if the first episode on the couch occurred in 2000 or 2001, it was either four or five years later that you say you’ve spoken to [your cousin] for the first time – Yes.
Despite seeing her every day almost, that’s the case. Do you still maintain that? - Yes.
I want to suggest to you that you couldn’t have said anything to [your cousin] on the day after or nearing the time of your birthday in 2004 because these acts that you say happened did not happen. [My emphasis]
HIS HONOUR: Which acts?
DEFENCE COUNSEL: These acts, all of these acts, they’ve not happened? – They did. [My emphasis]
DEFENCE COUNSEL: You see you wouldn’t have had anything to complain about. This is the reason why I’m suggesting that you couldn’t have complained to [your cousin] because if nothing happened there wouldn’t have been any reason to make an honest complaint about it to her. [My emphasis]
…
DEFENCE COUNSEL: Just so that you understand, that’s all I’m putting. I’m not going any further.
There was an objection to this line of questioning by the Crown Prosecutor and, after some discussion, the question was re-phrased in a more limited (but still somewhat ambiguous) manner:
DEFENCE COUNSEL: All I’m trying to suggest is you know this first incident on the couch? – Yes … I’m suggesting to you … that these things didn’t happen, and given that they didn’t happen on the couch, you couldn’t have complained about them four or five years later – Okay.
DEFENCE COUNSEL: You say no, that’s not right, don’t you? – Yes.
It may be that the latter questions would be permissible depending on the state of the cousin’s evidence as to the terms of the complaint received. But the earlier question certainly was not. Counsel did not have specific instructions that a complaint was not made, and all of the sworn evidence was to the effect that it was. Moreover, defence counsel had sought (and obtained) the exclusion of subsequent complaints substantially on the basis that this initial complaint had been made.
The matter of the complaint was canvassed further in re-examination:
CROWN PROSECUTOR: Why did you delay all that time before you told your cousin on the phone in about the end of 2004 – I guess because I was older and I kind of like understood more, and I guess ‘cause I couldn’t stand it anymore …
CROWN PROSECUTOR: … What was your state of mind, what did you feel about making a complaint up until the time you ultimately spoke to your cousin – I guess I was kind of scared to tell someone, and she was like closest to me at that time … I thought it would be the right thing to tell someone.
Trial counsel for the applicant appreciated the difficulty of the situation and further discussion occurred prior to his final address. It is not necessary to quote this discussion some of which is set out by Buchanan JA at para [19] of his judgment; it is sufficient to note that the trial judge was alert to the situation. He expressed the view that counsel could not assert that the complaint was not made but could attack its veracity and/or vagueness.
In the event defence counsel dealt with the matter in his final address as follows:
I put it to her that there were no complaints the day after the occasion of the last count. She said that there was a complaint, but if there was a complaint ladies and gentlemen, consider this: it comes possibly four years after the events, the subjects of counts 1, 2, 3 and 4, is [sic] a real oddity.
This provoked a protest from the Crown Prosecutor.
The trial judge expressed his concern in a ruling in which he recognised the difficult situation facing both counsel because of the unconsidered consequences of the s 400 ruling and he acknowledged that they were doing their best in the circumstances. In any event, his Honour indicated that he would not make any comment about the matter to the jury.
The fact that a piece of evidence has been ruled to be inadmissible, for example on the basis that its prejudicial effect outweighs its probative value, or is not before the jury following the excusing of a witness pursuant to s 400 of the Act, does not give counsel free reign to assert its non-existence with impunity. In the present case it would have been open to counsel to challenge the veracity of any complaint but he was not entitled in the existing circumstances to allege that no complaint had ever been made. To permit such cross-examination would be to distort the trial process. It should not be forgotten that the need to ensure fairness does not apply solely to an accused; it extends also to a complainant.
The applicant suffered no injustice in the manner that this aspect of the trial played itself out. Indeed he obtained an unwarranted forensic advantage.
CAVANOUGH AJA:
I have had the benefit of reading in draft the reasons for judgment of Buchanan JA and Coldrey AJA respectively.
As to the first ground of the application for leave to appeal against conviction, namely the alleged failure of the trial judge to give a ‘Kilby warning’, I agree with what Buchanan JA has said. I would add the following.
In R v Glennon (No 2)[7] the applicant advanced a ground corresponding to the ground presently in question. In that context Callaway JA (with whom Winneke P and Ormiston JA agreed on this point[8]) said[9]:
[7](2001) 7 VR 631.
[8]At [28].
[9]At [132]-[134]. Emphasis added to the last sentence of the quotation. Footnotes elevated into the quotation with full citations and set out within square brackets.
Section 61(1)(b) of the Crimes Act used to require the judge to warn the jury that delay in complaining does not necessarily indicate that an allegation is false and to inform them that there may be good reasons why a victim of a sexual assault may hesitate in complaining about it. Section 61(2) provided that nothing in subs (1) prevented the judge from making any comment on evidence given in the proceeding that it was appropriate to make in the interests of justice. There were numerous cases which established that, as a general rule, the warning and the information formerly required by s 61(1)(b) and its equivalents in other States should be balanced by a statement that delay in complaining is a fact that the jury may take into account in evaluating the complainant’s testimony and in determining whether to act on it. [See, for example, Crofts v R (1996) 186 CLR 427 and R v Hewitt [1998] 4 VR 862 and the authorities to which they refer.]
Section 61 was amended by the Crimes (Amendment) Act 1997. Section 61(1)(b) now requires the judge, in a case to which it applies, simply to “inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it”. Subsection (2) remains the same, but the amending Act inserted a new subs (3), which reads:
Despite sub-section (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which sub-section (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial.
Accordingly the law now is that, in a case to which s 61(1)(b) applies, the judge must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it but must not make any comment on the reliability of the complainant’s evidence unless there is a reason to do so in the particular proceeding in order to ensure a fair trial. Cases decided prior to the amendments must be read with that in mind. A Kilby direction is not to be given automatically in every case, for that would be to ignore the new subs (3). In particular, a balancing statement will often be unnecessary in the case of complainants who were children at the time of the alleged offences. [R v TJB [1998] 4 VR 621 at 634 and the cases there cited: R v JMS [1998] VSCA 19 at [7]].
The complainant was aged between nine and 13 years old at the time of the alleged offending. There was a close relationship between her family and the applicant’s family. Each was a migrant family and they were somewhat isolated from the broader community. The complainant was extensively cross-examined about why she had not complained prior to November 2004. She gave evidence that she did not complain because she was scared and did not have anyone to talk to and because she was worried about the effect it would have on both families if she complained. The trial judge reminded the jury of this evidence. In my view the jury could not have been in any doubt that the defence was asserting that the complainant’s delay undermined her reliability. Further, I think it was implicit in the judge’s reminder to the jury about this evidence that delay may indicate that an allegation is false. This message was reinforced to an extent when, at a later stage, in re-directing the jury about the single alleged recent complaint, the judge said:
It is just that the – I suppose there is a presumption that someone is assaulted, then they are likely to complain about it.
In any event, even if nothing said by the judge should be interpreted as including an indication to the jury that the complainant’s delay could be taken into account against her, I would not uphold this ground. In the light of the passage from R v Glennon (No 2) set out above, and taking into account in particular the youth and the family situation of the complainant, there was, in my view, no obligation on the judge to give a ‘Kilby warning’ in all the circumstances of this case.
I turn to ground 2(b), which alleges that the trial judge erred in directing that the recent complaint ‘does not provide independent evidence and to the extent that it does, it is used to try to bolster her evidence.’
I agree with Buchanan JA that this ground is not made out. As his Honour points out, the words complained of were merely part of a sentence which must be read as a whole and in context. Further, it must be remembered that the words were, of course, spoken orally, not delivered in writing. The transcript is unrevised. In R v Yates[10], in the course of a passage quoted with approval by Callaway and Buchanan JA in R v Mathebula[11], the South Australian Court of Criminal Appeal said:
It must never be forgotten, when assessing a summing up, that the art of communicating by the spoken word is different from that of communicating by the written word. …
The ultimate test must always be: What was the final impression left with the jury by the spoken word, bearing in mind the course of the trial, the addresses of counsel, and the circumstances generally?
Coldrey AJA made similar observations in R v Mathebula. In a passage with which Callaway and Buchanan JA ‘specifically’ agreed[12], Coldrey AJA said[13]:
Finally, I would add these general comments. Appellate courts must be astute to guard against any practice by counsel of taking isolated words or phrases (on some occasions out of context) from a judge's charge and seeking to build upon them, like an inverted pyramid, an edifice of judicial error. Juries do not analyse a trial judge's directions as if they were interpreting the provisions of a will or construing the words of a statute. The jury system is predicated upon an approach to criminal liability grounded upon robust common sense and experience of life. To endeavour to project upon juries the practice of drawing fine verbal distinctions and indulging in the semantic exercises beloved of lawyers is to divorce the criminal justice system from the real world in which it operates.
[10][1970] SASR 302 at 306.
[11][2004] VSCA 74 at [2].
[12][2004] VSCA 74 at [1].
[13][2004] VSCA 74 at [50].
In the present case it seems to me very likely that the trial judge corrected himself, and would have been understood to have corrected himself, in the course of speaking the words in question. I think that, in effect, he took back the words ‘it does’ and replaced them with ‘it is used’. Hence, like Buchanan JA, I consider that his Honour meant and would have been understood to mean that to the extent that the complainant’s complaint might be used to bolster her other evidence (by showing consistency of conduct) it was still not independent evidence because it came from the same source. This makes better sense of his Honour’s words than the construction advanced on behalf of the applicant. It is also far more consistent with the context – his Honour had told the jury no less than three times that there was no corroboration of the complainant’s evidence as to any of the alleged offending.
As to ground 2(e), being the ground that the trial judge prevented counsel for the applicant developing an argument that the complaint might not have occurred, I agree with Buchanan JA and Coldrey AJA that the ground has not been established. In my view, if a piece or pieces of evidence (even sworn evidence) of the happening of a particular event has been excluded from the jury (whether under s 400 of the Crimes Act 1958 or otherwise), the question whether defence counsel may nevertheless suggest that the event did not happen will depend on all the circumstances of the case. In the present case, as Coldrey AJA points out, defence counsel had sought and obtained the exclusion of evidence of several subsequent complaints on the basis that the actual making of the complaint to the cousin in November 2004 demonstrated that the ‘first reasonable opportunity’ for complaint was that very occasion. In these circumstances it was not open to defence counsel to ‘approbate and reprobate’ even in the limited way he did[14], much less in the unfettered way that appeal counsel now submits he should have been permitted to do. The unfairness to the Crown is manifest. The applicant has suffered no unfairness or miscarriage of justice in this regard.
[14]The notion that a party should not be permitted to approbate and reprobate can have application not only in civil proceedings but also in criminal proceedings: see, eg, R v Magistrates’ Court at Lilydale Ex Parte Ciccone [1973] VR 122 at 135 (failure to object on the ground of apprehended bias).
With the addition of the above, I agree with the reasons for judgment of Buchanan JA and with those of Coldrey AJA and I agree with their Honours’ proposed disposition of the matter.
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