Robert Ford (a pseudonym)[1] v The Queen
[2020] VSCA 162
•29 April 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0024
| ROBERT FORD (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, McLEISH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 April 2020 |
| DATE OF JUDGMENT: | 29 April 2020 |
| PUBLICATION OF REASONS: | 17 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 162 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1663 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Conviction – Sexual offending – Crown concession on two grounds – Prosecutor’s intemperate and pejorative criticisms of conduct of defence case – Breach of prosecutor’s obligation of fairness – Whether criticism of defence counsel implicitly endorsed by judge – Substantial miscarriage of justice – Defence counsel’s failure to adduce evidence of prior inconsistent statements of complainant – Affidavit by trial counsel – Objective test – Failure to adduce not explicable as forensic decision – Complainant’s credibility in issue – Loss of valuable forensic opportunity – R v Livermore (2006) 67 NSWLR 659, considered, TKWJ v The Queen (2002) 212 CLR 124, applied – Leave to appeal granted – Appeal allowed.
CRIMINAL LAW – Appeal – Conviction – Sexual offending against children – Delay in complaint – Directions as to abuse victims’ psychological strategies and coping mechanisms – Whether authorised by Jury Directions Act 2015 ss 52(4), 53 – R v ERJ (2010) 200 A Crim R 270, AC v The Queen (2014) 42 VR 278, Hermanus v The Queen [2015] VSCA 304, considered – Relevance of charge book – R v Portelli (2004) 10 VR 259 – Whether expert evidence required – Unnecessary to decide.
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J R V Kelly SC with Mr S Gillespie–Jones | Mark Ryan Legal GP |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
McLEISH JA
FORREST JA:
On 22 August 2018, the applicant was found guilty by a jury of five charges of committing an indecent act with a child aged under 16, contrary to s 47(1) of the Crimes Act 1958. He was subsequently sentenced to a total effective sentence of 3 years and 1 month’s imprisonment with a non-parole period of 2 years’ imprisonment. He sought leave to appeal against his convictions.
In circumstances described later in these reasons, the respondent indicated on the morning of the hearing of the application that it conceded the appeal on the basis that, taken together, the matters raised under proposed grounds 2 and 5 gave rise to a substantial miscarriage of justice. After hearing argument from both parties as to those two grounds in particular, we concluded that the Crown’s concession was properly made. We therefore made orders granting leave to appeal, allowing the appeal, quashing the convictions and ordering a retrial.
These are our reasons for making those orders. In light of the order for a retrial, these reasons use a pseudonym in place of the applicant’s real name.
Summary of offending
The indictment contained five charges relating to two sisters. Like the sentencing judge, we shall refer to them as A and B in the interests of their privacy. The applicant was convicted of four offences against A, committed between April and June 2009, when A was about 10 years old. The circumstances of the offending in one charge also involved A’s younger sister B, then aged about 9. This accounts for the remaining charge.
The applicant was in a long term relationship with a woman who was a registered foster carer. In 2009, the relationship of A and B’s parents broke down. Together with their younger brother C, they were placed in the care of the applicant’s partner, who lived near Bendigo. The applicant lived on a farm a little over an hour’s drive away. He and his partner had a teenage daughter who lived with her mother but often visited the applicant on weekends and during holidays.
The following summary of the offending is drawn substantially from the judge’s sentencing remarks. On occasion, the applicant’s partner brought the children with her when she came to stay at his farm for one or two nights. On the first such occasion, A was sitting next to the applicant on a couch watching television after playing with C. The applicant put his hands under A’s underwear and touched her vagina. This was the subject of charge 1. On another occasion, the applicant’s partner had left the house for a time. While on a mattress in the spare room, the applicant put his hands down A’s underwear and touched her vagina, which hurt her (charge 2).
On the following morning, A and B were eager to make breakfast. As they were passing the applicant’s bedroom he said, ‘Come on girls, come and get into bed with [Bob], girls’.[2] The applicant was lying naked in bed and lifted up the blankets so as to expose his penis. The complainants said ‘No’ and, without entering the room, told him that they were going to make breakfast (charge 3). B’s recollection of this event was somewhat different to A’s. She said that when she woke up on the morning in question, the applicant came into their bedroom naked and said to the two girls, ‘Come in here’. They walked into the applicant’s bedroom and he said, ‘Come on, get into bed with [Bob]’.[3] Then they lay on the bed while he was under the blankets. B said that the applicant was naked and that they could see his penis when he spoke to them (charge 4).
[2]In her evidence, A used a familiar form of the applicant’s first name.
[3]B used the same familiar form of the applicant’s real name.
On a further occasion, guests were being farewelled at the front of the applicant’s partner’s house and everybody had walked inside except A and the applicant. A had walked ahead of the applicant. He held her around her waist and put his hand down inside the front of her pants but outside her underwear. He moved his fingers a bit and then let her go after about five minutes (charge 5).
Neither A nor B made any complaint about these incidents at the time, but A made notes about the offending in her diary and later told her friend D about it when they were in primary school. A’s mother read the diary. It was later put in a rubbish bin by A because she did not want anyone else to read it.
The applicant was interviewed by police on 15 October 2015 and denied the offending.
Grounds of appeal
Given that the Crown’s concession, and our decision, were confined to grounds 2 and 5, these reasons deal principally with those grounds. It is, however, necessary also to say something about grounds 1 and 7A.
Ground 1
Ground 1 contended that a substantial miscarriage of justice was occasioned by the introduction of evidence from A’s father about the contents of a family law affidavit sworn by her mother in connection with an application for custody. A’s father gave evidence that he had learnt from the affidavit that A had made a diary entry in which she reportedly stated that she had been ‘touched inappropriately’ by the partner of a carer. The prosecutor put to the father, and he agreed, that A had ‘indicated in the diary that this [Robert] person’ had touched her inappropriately.
The complaint advanced was that (a) the affidavit was never produced or disclosed to the defence, (b) the mother refused to provide a statement to police and was not called to give evidence, (c) the diary entry was never produced or disclosed to the defence and (d) the jury received no directions about what use they could, and could not, make of the evidence from A’s father about the allegation reportedly contained in the diary entry.
Given our order for a retrial, two points need to be made. The first is that it is quite unclear how the father’s evidence about the contents of the diary was thought to be admissible, given its obvious hearsay character. Secondly, even if properly admissible, the evidence carried with it clear potential for misuse by the jury and it was essential that there be clear directions in that regard.
Ground 2
Ground 2 contended that a substantial miscarriage of justice was occasioned by the trial prosecutor’s ‘persistent denunciation of the cross-examination of the complainants’ in his closing address. In accordance with the usual practice, the cross-examination had taken place at a special hearing held in advance of the trial. Unusually, counsel who represented the applicant at the special hearing, and conducted the cross-examination, did not appear as defence counsel at the trial. The trial prosecutor was also different.
The applicant submitted that allegedly intemperate remarks made by the trial prosecutor about the previous defence counsel went unchallenged by the judge, and had the effect of ‘nullifying the one weapon available to the applicant to impugn the reliability and credibility of the allegations against him’. It was contended that, although no exception was taken to the relevant aspects of the prosecutor’s closing address, comments which belittle or ridicule any part of an accused’s case call for the censure of appellate courts.[4]
[4]R v Livermore (2006) 67 NSWLR 659; Saddik v The Queen [2018] VSCA 249, [98]–[103] (Kaye and Niall JJA, Whelan JA agreeing at [1]–[8]).
The trial prosecutor commenced his closing address by saying:
One of the things that I’m going to do is criticise, and criticise heavily, defence counsel who cross-examined those children, which is what they are. And he was an experienced barrister, and they were children, and the way in which he conducted that cross-examination, which quite frankly I submit to you was a disgrace. And the prosecutor must have been asleep as well, because she didn’t jump up and say anything.
Later in his address, the trial prosecutor referred sarcastically to the cross-examination of the complainants at the special hearing as ‘masterful’ and ‘brilliant’. He characterised as ‘appalling’ a line of cross-examination in which it was put to A that, if she had said certain things to a DHS worker (including that the applicant had his hand in her underpants on the occasion of charge 5), those things would have been lies. The trial prosecutor reiterated that the prosecutor at the special hearing must have been asleep at the time and added that it looked like the judge must have been as well. At another point, the trial prosecutor said that he did not know what previous defence counsel ‘was smoking that day’. This was said in reference to a suggestion put in cross-examination that A had been mistaken when she nominated the applicant as the person who had offended against her.
It is necessary to place the prosecutor’s closing address in context. A significant line of cross-examination of A had been directed at establishing that her evidence should not be accepted because she regarded her memory as having improved over time. Immediately after the tape of the special hearing had been played, the judge said the following in the presence of the jury:
HIS HONOUR: And this is a comment, members of the jury, and a comment specifically about one specific aspect of this evidence, and that is about questions in cross-examination of a young child about memory. And asking a young child whether — or putting it to her — proposition, ‘So your memory gets better with time’, or asking her when or at what point her memory is better or worse, in my view, should carry little weight.
Now, that’s a comment that I make for you to consider. If you disagree with me in that comment, then put it aside. If you’re assisted by that comment in your thinking about questions about memory, then you may use it I suppose. Memory requires a large number of steps. That is, first, retention of what took place, then an ability to recall that observation or whatever was created in your mind when you made that observation or an event that happened to you, and then an ability to recall precisely when questioned at a particular time.
And asking children — to ask whether of a child, whether their memory is better at one point or another, in my view, there’s a question mark over the weight of such questions. I make no comment about the rest of the cross-examination, but specifically saying to a child, ‘So your memory gets better with time’, in my view, irrespective of the answer which is usually ‘I don’t know’, should carry questionable weight in your consideration.
The judge did not foreshadow with counsel that he was considering making a comment of this kind. No submissions were invited. Doubtless taken by surprise, defence counsel did not challenge the making of this comment. In this Court, however, the applicant submitted that the comment had the effect of giving the judge’s imprimatur to the prosecutor’s subsequent criticism of defence counsel who conducted the special hearing. The comment had effectively encouraged the prosecutor to ‘seize the moment’, as he appeared to do when he said in his closing address:
… don’t lose sight of the fact that what you had was an experienced defence barrister questioning children, all right?
And his Honour himself made a comment yesterday about the nature of some of that questioning, that is how, to put it in English — his Honour was very measured in the way he said it, but to put it in English, it’s a pathetic way to cross-examine a child, to try and cross-examine them about comparing their memory of something now and their memory of something a couple of years ago. It just doesn’t fly.
The prosecutor urged the jury to conclude that the delay in A complaining about the alleged offending was readily explicable because she had tried to put the matter out of her head. As explained below under Ground 7A, the judge had already given directions under ss 52 and 53 of the Jury Directions Act 2015,[5] as to delay in complaining and the possibility of there being good reasons why a person might delay in complaining about a sexual offence. Referring to those directions, the prosecutor said in relation to A’s answers:
You hear what she said? She didn’t tell anyone, i.e. adults, leave aside [her friend D]. She didn’t tell anyone because if she didn’t tell anyone, somehow it would not be real and it wouldn’t have happened. The psychology of a child.
Just what His Honour was saying the other day when he gave you the direction in law about good reasons for lack of complaint. Remember there was one in there, one of those reasons, using psychological mechanisms to cope. That’s exactly what this girl was doing. She didn’t want to believe it was real. She knew it was real, but by telling someone that would make it real.[6]
[5]These provisions are described in our brief discussion of proposed ground 7A. The directions under s 52 must be given before evidence is adduced as to delay in making a complaint.
[6]Emphasis added.
In turn, the judge implicitly endorsed this submission in his charge, in the course of giving further directions under ss 52 and 53. The judge said:
And I direct you as a matter of law that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining, or may not make a complaint at all.
One of those matters that I put to you at the beginning as a direction of law was something that was picked up in the address of the prosecutor when he said to you that this is what the comment about, ‘It would not be real’ if she did not say it out loud. I said to you, and I say to you again, one of the reasons why — one of the good reasons why there may be complaint is that victims often or sometimes employ psychological strategies to cope with the abuse, such as repression, suppression of those acts, disassociation, or an internal explanation such as the one that the prosecution says was given in this case.[7]
These directions formed the subject of proposed ground of appeal 7A.
[7]Emphasis added.
After remarking in his charge that ‘there was a lot made about questions of memory and things of that nature’, the judge said it was ‘interesting’ that the applicant had said in his record of interview that he would ‘probably remember more things’ as he thought about matters further. He said to the jury ‘as a comment’ that they should be cautious when they considered ‘issues of memory, especially asked of children, and not only’.
These comments appeared to imply an inconsistency in the defence attack on A’s evidence that her memory improved over time. We note that they were made before the High Court made it clear in McKell v The Queen that judges should not make comments indicating to a jury their opinion as to the proper determination of disputed issues of fact.[8] In the context, these comments might well have been seen by the jury as endorsing the prosecutor’s criticism of defence counsel’s cross-examination of A.
[8](2019) 264 CLR 307, 313 [5], 323–6 [46]–[55] (Bell, Keane, Gordon and Edelman JJ).
The applicant submitted, and the respondent conceded, that the remarks of the prosecutor about defence counsel who conducted the special hearing were intemperate and unrestrained. The applicant went further and characterised the remarks as an attack calculated to diminish the jury’s confidence in the whole special hearing, thereby unfairly undermining defence counsel’s ability to persuade the jury that the answers of A affected her credibility. It was emphasised that in a historical sexual offence case such as the present, the accused’s best — and perhaps only — prospect of mounting a successful defence may be to persuade the jury that there is a reasonable doubt as to the complainant’s credibility. Otherwise, the accused may be left with little more than bare denials. That being so in the present case, the prosecutor’s inappropriate statements went to the heart of the applicant’s defence.
We agree. In our opinion, the pejorative statements of the prosecutor as to the conduct of the special hearing were quite improper. They constituted a breach of the prosecutor’s obligation to address the jury in a scrupulously fair manner.[9] The comments were intemperate and inflammatory, and belittled opposing counsel and the defence case. More seriously still, by suggesting that defence counsel must have been ‘smoking’ something, and that both the then prosecutor and the judge conducting the special hearing must have been asleep, the prosecutor effectively portrayed the special hearing as a farce.
[9]Bugeja v The Queen (2010) 30 VR 493, 503 [56] (Weinberg JA, Bongiorno JA agreeing at 506 [76]) (‘Bugeja’).
This seriously and improperly undermined the applicant’s primary defence, which was that the answers given by A at the special hearing raised sufficient doubt as to her credibility that the jury could not safely convict on her evidence. Crucially, in our view, the non-intervention of the judge, coupled with his own observations referred to above,[10] would have had the effect of reinforcing and adding weight to the prosecutor’s inappropriate submissions.
[10]See [19], [22] above.
It is true that defence counsel made no objection to those submissions and sought no discharge of the jury or other judicial intervention. Instead, he sought to turn the situation to his advantage by urging the jury to set aside their passions, and the ‘impassioned address’ of the prosecutor, and to engage instead in a ‘calm, dispassionate, objective, analytical analysis of the evidence’. Given the context we have described, however, we were satisfied that there was a serious miscarriage of justice as a result of the prosecutor’s conduct.
In that regard, we respectfully endorse the following observations of the New South Wales Court of Criminal Appeal in R v Livermore,[11] about intemperate or inflammatory comments in a Crown final address which tend to arouse prejudice or emotion in the jury or which belittle or ridicule any part of an accused’s case:
it is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any, of these features nonetheless gives rise to the prospect that an accused has not received a fair trial. However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed.
[11](2006) 67 NSWLR 659, 667 [31]–[32] (McClellan CJ at CL, Johnson and Latham JJ). See also Basic v The Queen (2015) 251 A Crim R 91, 102–3 [64] (Priest JA, Ashley and Redlich JJA agreeing at [29]); [2015] VSCA 109; Smith v The Queen [2018] VSCA 139, [78] (Whelan, Beach and McLeish JJA).
There is a particular danger of unfairness in a case such as the present, where intemperate language on the part of a prosecutor may be seen as amounting to an attack upon the accused.[12] Although the prosecutor’s address in this case did not directly attack the accused, in our view there was a real risk that the prosecutor’s emotive criticism of the previous defence counsel, in circumstances where the respective credit of the applicant and the complainant lay at the heart of the case, could be seen by the jury as criticism of the applicant for authorising an improper challenge to the complainant’s credibility.
[12]Bugeja (2010) 30 VR 493, 503 [57] (Weinberg JA, Bongiorno JA agreeing at 506 [76]).
For the reasons given, we upheld this ground.
Ground 5
Ground 5 contended that a substantial miscarriage of justice was occasioned by the failure of the applicant’s trial counsel to adduce evidence of prior inconsistent statements made by A to DHS workers.
During the special hearing, A initially indicated that she did not recall speaking to a particular DHS worker. When prompted, however, she recalled the fact of the conversation but not the contents of what was said. She had also given evidence that she was terrified of DHS. It was then put to A by defence counsel that, if she had said something to DHS which was different from statements made in her VARE, then her statements to DHS would be untrue. She answered in the affirmative.
Specifically, A denied telling the DHS worker on 18 March 2014, in relation to charge 3, that she had been in bed with the applicant. She agreed that, if she had said this, it would have been a lie. In relation to charge 5, she agreed that, if she had told a DHS worker on 28 March 2014 that the applicant had put his hand in her underwear, it would have been a lie. In relation to charge 1, she denied that the touching complained of was painful. She denied telling DHS that she remembered the episode hurting and agreed that, if she had said that, it would not be true, and would have been a lie.
The applicant submitted that DHS notes disclosed prior to the trial recorded conversations between A and DHS workers, where A was said to have made each of the prior inconsistent statements upon which she was cross-examined. Defence counsel did not seek, however, to have evidence of these previous statements adduced at trial. In the absence of A adopting the statements, there was no evidence before the Court of them having been made.
At the close of the evidence but before final addresses, the jury asked one question, namely:
In a legal sense, what differentiates the testimony given in cross-examination, testimony given to police and testimony given to a DHS public servant?
The judge answered the jury before final addresses by saying:
[It’s] not a question of understanding the legal sense, as they are of two different natures. So the differentiation between them is that two of them were evidence before you on which you can rely and the third is not evidence before you in that it is not something that amounts to testimony … so, it is not, in any legal sense, [of] the same calibre …
The applicant submitted that it was clear from the question that the jury was concerned about what use it could make of the representations put to A in cross-examination. The respondent did not dispute this proposition.
Before the appeal hearing, the Court invited submissions from the parties as to whether we should be provided with the DHS notes and whether trial defence counsel should be invited to give any explanation as to the fact that they were not tendered. The respondent submitted that both steps should be taken. The applicant then short-cut the process by filing a copy of the DHS notes and, later, an affidavit of trial defence counsel.[13]
[13]It was sensible for the applicant to take this course in light of time constraints. Normally, however, the Court should itself inform trial counsel of an allegation amounting to incompetence and invite any response, making it clear that there is no obligation to respond and that no adverse inference will be drawn if he or she does not do so: Knowles v The Queen [2015] VSCA 141, [144]–[147] (Ashley, Redlich and Priest JJA) (‘Knowles’).
In that affidavit, counsel deposed to the circumstances in which he was briefed. The trial in the present matter commenced on Friday 17 August 2018.[14] Counsel had been briefed in another trial on the same circuit, which resolved the previous day. Previous trial counsel for the applicant was ‘jammed’ and the brief was in Melbourne. The prosecution sent counsel a copy of the indictment and amended opening, transcripts of the special hearings, the defence response, an edited record of interview transcript and a notice of additional evidence. Counsel was then formally briefed. He watched the VAREs and special hearings at the court and prepared the matter over the weekend.
[14]However, the trial was adjourned early that day so that openings would commence on Monday, 20 August 2018.
Counsel stated that he had perused his notes for the final address, which contained numerous references to the DHS notes, whose contents he knew. He stated that he had ‘assumed that the documents were admissible’. Counsel stated that he could not now recall what reason he had for not leading the evidence of A’s prior inconsistent statements, but a perusal of his notes ‘suggests that it was an oversight’. The defence barrister was relatively new to criminal trial practice.
The central question to which this ground gives rise is whether the fact that the DHS notes were not tendered is explicable as following from a legitimate forensic decision on the part of defence counsel. That is an objective test. The issue is whether the course taken is capable of explanation on that basis.[15] Ordinarily, therefore, counsel’s explanation for a course adopted at trial will not assist determination of the question whether the course taken gave rise to a miscarriage of justice.
[15]TKWJ v The Queen (2002) 212 CLR 124, 131 [17] (Gleeson CJ), 132 [27] (Gaudron J), 157 [101] (Gummow J), 158–9 [107]–[111] (Hayne J); Knowles [2015] VSCA 141, [144] (Ashley, Redlich and Priest JJA).
On one view, the tender of the DHS notes could have exposed the defence to some risk. A question may have arisen as to whether the tender of prior inconsistent statements could have had the ‘knock on’ effect of making other parts of the notes tenderable, at the prosecutor’s option. We have considered the content of the balance of the notes. Clearly, there were some portions of them which, if tendered, would have been inimical to the defence case. The notes contained sexual allegations that went beyond the trial allegations. At the same time, the notes recorded factual assertions made by A that were consistent with other parts of her trial allegations.
On another view, there was not much risk attached to the tender of those parts of the notes which were put to A. There was nothing in the DHS notes that obviously clarified, explained or qualified the prior inconsistent statements and so, to that extent, there was little risk in tendering the relevant portions of the DHS notes. There is, however, always a risk, as every trial counsel knows, that attaches to such a tender — its ‘knock on’ effect. An enthusiastic prosecutor might have persuaded the judge that, if the defence can tender portions of notes as demonstrating prior inconsistent statements, fairness demands that the prosecution be able to tender other portions.
Of course, defence counsel could have sought an advance ruling from the judge under s 192A of the Evidence Act 2008 which might have been used to provide some comfort as to the ‘knock on’ consequences of the tender. That counsel did not do so, as he could have sought to do even after the jury question had been asked, is some evidence that the failure to tender the documents was the product of an oversight. Other evidence tends towards that conclusion. The applicant’s trial counsel was relatively inexperienced and was doing back-to-back trials on circuit, which is no easy task. The split nature of the trial — into a special hearing and a separate hearing before the jury — meant that the initial burden of tendering the prior inconsistent statements fell upon the first defence counsel briefed in the matter. In our view, this magnified the potential for an oversight. Further, we are of the view that there was little or no strategic merit in not seeking to tender the relevant parts of the notes. Like many cases of this nature, the contest reduced to word against word, and the failure to adduce this evidence foreclosed a substantial plank of the applicant’s attack upon A’s credibility.
We concluded, on the objective evidence, that trial defence counsel could not reasonably have made the strategic decision to decline the tender of the relevant portions of the DHS notes. We were positively satisfied that this failure was the product of an oversight. We were reinforced in this conclusion by the respondent’s concession, on this appeal, that that was the likely explanation.
In our view, this was a significant omission in the trial context, particularly given the jury’s obvious interest in the content of those notes. We considered that the failure to tender the notes gave rise to a substantial miscarriage of justice. We accepted the respondent’s concession that the combination of grounds 2 and 5 gave rise to such a miscarriage, although we considered that both grounds had enough merit to stand alone.
We therefore also allowed the appeal on this ground.
Ground 7A
The final substantive ground, added by amendment, was in the following terms:
A substantial miscarriage of justice occurred by the learned trial judge:
(a)failing to sufficiently distinguish between directions of law and comments that he made;
(b)directing the jury that to cope with the abuse victims often employ a psychological strategy of —
(i)repression;
(ii)suppression;
(iii)dissociation;
(iv)in the absence of expert evidence;
(v)when it was not a matter for judicial function;
(c)endorsing the prosecution position of dealing with sexual abuse by the employment of psychological mechanisms;
(d)directing the jury that victims often employ psychological strategies or an internal explanation such as the one given by the prosecution in this case; and
(e)departing from the directions required to be given.
Before any evidence was called, the prosecutor requested the judge to give the directions provided for by ss 52 and 53 of the Jury Directions Act 2015. Counsel suggested that it might be appropriate for those directions to be given before the recordings of the VARE and the special hearing were played to the jury. The judge proceeded to give the directions requested by the prosecutor. It was the direction given under s 53 which was the subject of this ground of appeal. Section 53 provides as follows:
The prosecution may request under s 12 that the trial judge direct the jury that there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.
In the event, the judge gave a ‘good reasons’ direction twice, once before the recorded evidence was played and then again in the course of his charge. The first of these directions was the fuller of the two, and was in these terms:
The experience of the law … is that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about such an offence or may not complain at all. And some of the examples, some of the good reasons for this delay may be one of many and I'll give you some examples.
A victim of a sexual offence who is a child, for example, may be ignorant about the nature, quality and character of the act performed if they are not sexually mature. A victim may feel powerless particularly where an offender is a family member or an acquaintance and there may be a significant power imbalance between a young complainant and an adult.
There may be issues of past trust between a victim and an offender. There may be issues of emotional dependence from a victim to an adult who's offending against them. They may fear the dissolution of their family or their dismemberment from other family members if they complain. They may fear punishment for the offender. They may have been sworn to secrecy. They may be compelled not to complain by threats. They may feel responsible, guilty and ashamed of what's happened to them. They may feel embarrassment in describing what's happened to them.
Victims may adopt psychological strategies to cope with the abuse by dissociation from what's happened. By repression of memories. By suppression of the acts done to them and for example, they may also feel discouragement in complaining because they feel they will not be believed by family or by officials. All of those and probably more are good reasons why victims of sexual assault do not complain. You will remember and apply that direction when you go to the question of the assessment of the evidence given to you about this sexual offending.
In his charge, the judge said (as noted earlier):
And I direct you as a matter of law that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining, or may not make a complaint at all.
One of those matters that I put to you at the beginning as a direction of law was something that was picked up in the address of the prosecutor when he said to you that this is what the comment about, ‘It would not be real’ if she did not say it out loud. I said to you, and I say to you again, one of the reasons why — one of the good reasons why there may be complaint is that victims often or sometimes employ psychological strategies to cope with the abuse, such as repression, suppression of those acts, disassociation, or an internal explanation such as the one that the prosecution says was given in this case.
The applicant submitted that psychological matters such as repression, suppression and dissociation were matters for expert evidence, and should not be the subject of a purported direction of law.[16] No expert evidence had been adduced and, it was said, s 53 of the Jury Directions Act gave no authority for this kind of direction. It was submitted that the judge ‘slipped seamlessly from the directions that were required to be given’ under ss 52(4) and 53 of the Jury Directions Act to ‘psychological opinions that he was not qualified to give’, which he gave in ‘emphatic terms’.[17]
[16]HG v The Queen (1999) 197 CLR 414, 431–2 [57]–[59] (Gaudron J); R v Bartlett [1996] 2 VR 687, 694–6 (Winneke P, Charles JA agreeing at 699, Southwell AJA agreeing at 700).
[17]Section 52(4) provides for a direction that experience shows that people may react differently to sexual offences, some may complain immediately, others not for some time and others may never make a complaint, and delay in complaining in respect of a sexual offence is common.
The applicant submitted that there was an added danger in the direction as to psychological matters, in that it undermined any defence attack on evidence given by A that a lot of her memories had been blocked out or were only just coming back to her. In effect, the direction had reinforced the evidence of A to the effect that she had been using psychological mechanisms to cope with the abuse.
The respondent pointed out that defence counsel had not objected to directions being given under ss 52 and 53 as sought by the prosecutor. Both the directions given were in the form set out in the Victorian Criminal Charge Book. The charge book gives the following as one of the reasons why a complainant may not complain or may delay in complaining: ‘employing psychological strategies to cope with the abuse, such as repression or suppression of the acts’.
The respondent submitted that the prosecutor had invited the jury to draw on their own experience of something horrible happening, suggesting that this was called ‘compartmentalising’ the information. The jury had also been asked by defence counsel to bring their common sense to bear, so as not to accept A’s answers about her memory having improved over time. It was submitted that these were matters for the jury to decide.
Because we did not need to decide this ground, it was the subject of only limited oral argument. The ground does, however, raise a question of general importance concerning the appropriate content of judicial directions on delay in complaint, an issue which arises frequently in trials of sexual offences. What follows are, of necessity, provisional views only. Further consideration of the issues raised by this ground of appeal must await a case in which they fall for decision.
The legislative history of ss 52 and 53 of the Jury Directions Act is helpfully set out and critically examined by John Willis and Marilyn McMahon in a recent article.[18] As they explain, these provisions are the legislative successors to s 61 of the Crimes Act which (as amended in 2006) provided as follows:
[18]John Willis and Marilyn McMahon, ‘Educating Juries or Telling Them What to Think? Credibility, Delay in Complaint, Judicial Directions and the Role of Juries’ (2017) 41 Criminal Law Journal 27.
61 Jury warnings
(1) On the trial of a person for [a relevant sexual offence]—
(a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and
(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge—
(i) 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; and
(ii) must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning; and
(iii)must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.
…
(2) Nothing in subsection (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.
(3)Despite subsection (2), a judge must not make any comment on the reliability of evidence given by the complainant in a proceeding to which subsection (1) applies if there is no reason to do so in the particular proceeding in order to ensure a fair trial.
As can be seen, s 61(1)(b)(i) imposed a statutory duty on the trial judge if the issue of delay in complaint was raised. In that event, the judge was obliged 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.
The nature and content of that obligation was the subject of this Court’s decision in R v ERJ,[19] in which Redlich JA (with whom Harper JA and Williams AJA agreed) said:
In cases involving sexual offences, where the issue of delay is raised before the jury, s 61(1)(b)(i) of the Crimes Act 1958 requires the trial judge to inform the jury ‘that there might be good reasons’ why a complainant may delay in the making a complaint. These reasons will be relevant to the jury’s assessment of the significance of the delay. The reasons to which the trial judge should refer are not to be confined to any explanation that the complainant may advance for any delay.
…
There are many reasons why a complainant might delay in the making of a complaint, or may be slow to recognise the wrongfulness of the conduct against them.
In cases involving sexual offences, victims may delay in making a complaint about the abuse. The offender will often be a trusted family figure or one upon whom the victim is emotionally dependent. Even where the victim has had some other sexual experience, they may view their relationship with the offender as special. Commonly the victim will have no reference standards with which to judge their experiences apart from those supplied by the offender. Hence the complaint may be delayed for reasons which may include a conviction that there is nothing wrong with or abnormal about the acts. There may be other reasons for delay. The victim may be sworn to secrecy. There may be compulsion to secrecy by threats. There may be imposed or misplaced feelings of responsibility for the acts. The victim may fear family dissolution or punishment of the wrongdoer. There may be misplaced guilt or self blame. And the victim may employ various strategies to cope with the abuse such as repression of the acts so that conscious knowledge of them is concealed, suppression of the acts to avoid conscious recall of the events or even psychological disassociation from the acts. Any of these factors may contribute to delay in making complaint or a delayed conscious recognition that the conduct was wrongful. These are not necessarily explanations that the complainant will articulate in evidence. But the trial judge, in conformity with the statutory obligation should at least draw attention to some of those explanations which in the circumstances of the particular case may be relevant. We must take such possibilities into account in assessing the submission that the verdict is unreasonable or unsafe.[20]
[19](2010) 200 A Crim R 270; [2010] VSCA 61 (‘ERJ’).
[20]Ibid 279–80 [49]–[51] (Osborn JA Harper JA and Williams AJA agreeing at 282 [61]–[62]) (emphasis added).
Subsequently, in AC v The Queen,[21] this Court endorsed the above passage from ERJ, after having said:
Plainly enough a judge is entitled to further exemplify the possible good reasons for delay contemplated by s 61(1)(b).
[21](2014) 42 VR 278, 287 [70] (Osborn JA, Neave and Weinberg JJA agreeing at 279 [1]–[2]).
Later, in Hermanus v The Queen,[22] a majority of this Court (Osborn and McLeish JJA) accepted that the trial judge could, pursuant to s 61(1)(b)(i), suggest reasons for the complainant’s delay in reporting even if such reasons were not given by the complainant.[23] In the view of Osborn JA, the trial judge should at least draw attention to some of the possible explanations for delay which may be relevant in the circumstances of the particular case.[24]
[22][2015] VSCA 304 (‘Hermanus’).
[23]Ibid [18] (Osborn JA), [160] (McLeish JA).
[24]Ibid [18].
McLeish JA said:
… s 61(1)(b)(i) requires the judge, if delay in making a complaint about the alleged offence is suggested, 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’. The use of the word ‘inform’ makes it apparent that Parliament considers it to be the fact that there may be such good reasons. Evidently, Parliament is concerned to ensure that the jury has that information. To achieve that aim, the judge may decide to do more than merely convey the information so as to make it clear to the jury that good reasons may exist. Section 61(1)(b)(i) does not require the judge simply to recite its words to the jury. The judge may, and should, give examples of possible reasons for delay if he or she considers that necessary in order to ensure that the information is effectively conveyed to the jury as the section requires.[25]
[25]Ibid [160] (McLeish JA); see also [138], [151]–[153] (Priest JA).
In its 2009 Jury Directions report, the Victorian Law Reform Commission recommended a legislative provision in similar terms to s 61(1).[26] In the event, the provisions enacted in 2015 separated the ‘good reasons’ direction from the directions which the judge must give under s 52 where there is, or is likely to be, evidence of delay in complaint. A separate provision, s 53, was enacted, enabling the prosecutor to request the judge to give a ‘good reasons’ direction under s 12. Like its predecessor, s 53 is silent as to what might constitute ‘good reasons’ and as to whether the direction should ‘exemplify’ such reasons.
[26]Victorian Law Reform Commission, Jury Directions (Report No 17, July 2009) 106.
An obvious question for future investigation is whether, given the legislative history of s 53 and the line of authority concerning s 61(1)(b)(i) to which we have referred, Parliament is to be taken to have intended judges to have the same scope for giving directions under s 53 as they had under the predecessor provision. In that context, it would be necessary to consider whether the replacement of the word ‘inform’ in s 61(1)(b)(i) with the word ‘direct’ in s 53 is of interpretive significance (noting also that ‘inform’ is still used in s 52(4)). Similarly, it would be necessary to consider the absence in ss 52 and 53 of an express reference to the making of comments such as that found in s 61(2).
The suggested direction in the Victorian Criminal Charge Book closely follows the language from ERJ.[27] The assumption appears to have been made that the enactment of s 53 was not intended to affect the scope of the directions which could be given. But, until that issue is authoritatively resolved, judges should proceed with appropriate caution. As this Court said in R v Portelli,[28] the fact that a charge follows what is said in the Charge Book does not make it immune from criticism. The charge book is intended to reflect the underlying statute and case law but, of its nature, cannot be determinative.
[27]The Charge Book provides a non-exhaustive list of eleven reasons which the judge may, where relevant, identify to the jury as ‘good reasons why a person may not complain, or may delay in complaining, about a sexual offence’. One of those reasons is ‘employing psychological strategies to cope with the abuse, such as repression or suppression of the acts’.
[28](2004) 10 VR 259, 269 [21] (Ormiston JA, Winneke P agreeing at 260 [1], Charles JA agreeing at 276 [37]).
There is, we are inclined to think, force in the point made by Willis and McMahon, that a jury may be led to speculate if the judge goes beyond the evidence in the trial when suggesting possible reasons why a victim of sexual offending may not complain or delay in complaining.[29] For example, ‘being compelled to secrecy by threats’[30] would be a reason why a person might refrain from complaining, but to tell the jury that in a case where there was no evidence of such a threat might well invite the jury to speculate. On the other hand, there will often be evidence of a complainant’s reasons for not complaining earlier, or evidence from which such reasons might be inferred (such as the existence of a family or special relationship). Often, the jury will be able to decide these questions based on their common sense and experience of life.
[29]John Willis and Marilyn McMahon, ‘Educating Juries or Telling Them What to Think? Credibility, Delay in Complaint, Judicial Directions and the Role of Juries’ (2017) 41 Criminal Law Journal 27, 47.
[30]This is one of the potentially relevant reasons identified in the Charge Book.
The present case involves a less clear-cut area, concerning ‘psychological strategies … such as repression or suppression of the acts’. In this case, the judge elaborated by referring also to ‘disassociation, or an internal explanation such as the one that the prosecution says was given in this case’. The latter referred to A’s evidence that she had blocked out her memories and had not told anyone so as to avoid making it ‘real’. The question whether expert evidence was needed in order to found an instruction to the jury that such ‘strategies’ are ‘often or sometimes’ employed by victims of sexual offending is an important one which was not addressed at the trial.
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