Tsalkos v The King
[2024] VSCA 324
•19 December 2024
| 235SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0051 |
| THEODOROS TSALKOS | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | EMERTON P, PRIEST, McLEISH, NIALL and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 May 2024, 22 August 2024 |
| DATE OF JUDGMENT: | 19 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 324 |
| JUDGMENT APPEALED FROM: | DPP v Tsalkos (County Court of Victoria, Judge Carlin, 7 March 2023) |
---
CRIMINAL LAW – Appeal – Conviction – Kidnapping – Rape with aggravating circumstances – Gross indecency with a person under 16 – Whether evidence of complainant’s distress admissible as independent evidence – Complainant’s distress not capable of being used as independent evidence – Judge’s invitation to jury to use complainant’s distress as independent evidence caused substantial miscarriage of justice – Leave to appeal granted – Appeal allowed.
CRIMINAL LAW – Appeal – Conviction – Whether judge should have warned jury that distress evidence carries little weight – Question to be determined in light of Jury Directions Act 2015 – Does not arise as evidence should not have been admitted.
CRIMINAL LAW – Appeal – Conviction – Whether prosecutor impermissibly sought to rehabilitate complainant’s credit – Error in prosecutor’s examination but no miscarriage of justice.
CRIMINAL LAW – Appeal – Conviction – Whether defence failed to cross-examine on circumstances of complainant’s lie – No miscarriage of justice given forensic decision not to cross-examine.
CRIMINAL LAW – Appeal – Conviction – Whether prosecutor’s submissions inaccurate as to circumstances of complainant’s lie – No miscarriage of justice due to prosecutor’s withdrawal and judge’s direction to jury.
Evidence Act 2008, ss 55, 56, 66, 136, 137, 164; Jury Directions Act 2015, ss 11, 12, 14, 15, 16, 54D, 54K.
Charles (a pseudonym) v The Queen [2022] VSCA 166; Churchill (a pseudonym) v The King [2024] VSCA 151; Flora v The Queen (2013) 233 A Crim R 320; Papakosmas (1999) 196 CLR 297; Paull v The Queen [2021] VSCA 339; R vBauer (2018) 266 CLR 56; R v Brdarovski (2006) 166 A Crim R 366; R v Byczko (No 2) (1977) 17 SASR 460; R v Collings [1976] 2 NZLR 104; R v Dhir (2019) 133 SASR 452; R v Flannery [1969] VR 586; R v Gulliford (2004) 148 A Crim R 558; R v Moana [1979] 1 NZLR 181; R v Redpath (1962) 46 Cr App Rep 319; R v Rogers [2008] VSCA 125; R v Sailor [1994] 2 Qd R 342; R v Schlaefer (1984) 37 SASR 207; R v Williams [2010] 1 Qd R 276; Seccull v The King (2022) 69 VR 454, considered.
---
| Counsel | |||
| Applicant: | Mr T Kassimatis KC with Ms GF Connelly SC and Ms A Balkin | ||
| Respondent: | Mr BF Kissane KC with Ms S Clancy | ||
| Solicitors | |||
| Applicant: | Papa Hughes Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
MCLEISH JA
BOYCE JA:
Introduction
This matter raises issues concerning the admissibility of evidence of the distress of a complainant in a sexual offence trial, and the directions which should be given to a jury in respect of such evidence. We have had the benefit of reading in draft form the reasons of Priest JA and Niall JA respectively, which relieves us of the need to recount the facts of the trial or the arguments of the parties at any length.
We agree with Priest JA that leave to appeal on proposed ground 1 must be granted and the appeal allowed on that ground. Accordingly, the convictions must be set aside and a re-trial ordered. As we shall explain, our reasons for that conclusion are somewhat different to those of Priest JA.
We also agree with Niall JA, for the reasons he gives, that leave to appeal on proposed ground 2, which concerns alleged failings on the part of defence counsel and the prosecutor at the trial, should be refused.
In the circumstances, it is unnecessary for us to address the application for leave to appeal against sentence.
Proposed ground 1 is as follows:
Ground 1: A substantial miscarriage of justice occurred because:
(a) the jury was invited to use the complainant’s distress on 7 May 1987 as independent support for her account;[1] and
(b) the jury was not warned that evidence of distress is a species of [evidence] that carries little weight.
[1]These reasons will refer to the complainant as ‘AB’ and her friend as ‘JJ’.
Ground 1 concerns the nature of evidence given by AB’s mother about what she observed of AB’s demeanour when she attended the hospital to offer support to AB in the morning after the night on which the alleged offences occurred. AB’s mother’s evidence was, in short, that she went to the hospital, walked into the cubicle and saw AB on the bed ‘very very distressed’. AB ‘was very very upset and very emotional’. We shall refer to this as the ‘distress evidence’.
AB told her mother that she had been raped, that she was with a friend, and that they got into a car with a man before he raped both of them. They were very frightened because he threatened them and he had a knife.
The distress evidence, and the circumstances and manner in which it was left to be used by the jury, is amply described in the judgments of Priest and Niall JJA. In short:
(a)There was no dispute that the distress evidence was admissible as part of the context in which AB complained to her mother about having been raped.
(b)However, the prosecutor told the jury in his closing address that they could use the distress evidence as ‘independent’ evidence of the events alleged by AB.
(c)In her charge, the judge recorded that the prosecution had invited the jury to use the distress evidence as indirect or circumstantial evidence supporting the case that AB and JJ did not consent to the sexual penetration.
(d)The judge gave the jury a direction on distress, leaving it to the jury to determine whether AB’s distress was because she had been raped or for some other reason. Her Honour warned the jury that they could not use AB’s distress as indirect evidence supporting the charges unless satisfied that AB was distressed because of the alleged sexual offending and not for some other reason.
We understand the terms ‘independent’, ‘indirect’ and ‘circumstantial’ to be used interchangeably and to mean the same as ‘corroborative’, that is, evidence of the events alleged that is independent of the complainant and, in this case, the accompanying complaint to the mother.
We agree with Priest JA that, having regard to the circumstances in which AB’s distress was observed, the distress evidence was not capable of being used by the jury as ‘independent’, ‘indirect’ or ‘circumstantial’ evidence of the events alleged by AB (as opposed to evidence of the context in which the complaint was made to the mother). Nonetheless, the jury was invited to do so by the prosecution and the judge left it to the jury to decide whether it was open for it to do so.
Use of evidence of distress
In R v Sailor,[2] McPherson JA usefully described the evidentiary value of distress in the context of rape or sexual assault. McPherson JA said:
Like bruising, bleeding, and torn clothing, distress is an aspect of the appearance or visible condition of the complainant that of itself is capable of providing independent confirmation of the complainant’s account of what happened to her.[3]
[2][1994] 2 Qd R 342 (‘Sailor’).
[3]Sailor [1994] 2 Qd R 342, 346 (McPherson JA, Byrne J agreeing at 349). See also 347–9, where Pincus JA proceeded on the basis that distress evidence is capable of constituting corroboration.
It has long been accepted that evidence of the distressed condition of a complainant after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant’s account.[4] In order to be admissible as such, however, it must be reasonably open to infer from the evidence that there is a causal connection between the distressed condition of the complainant and the alleged sexual offence.[5]
[4]See, e.g., R v Redpath (1962) 46 Cr App R 319 (‘Redpath’).
[5]See, e.g., R v Flannery [1969] VR 586 (‘Flannery’).
As Priest JA points out, evidence of distress and evidence of complaint are conceptually distinct and have different admissibility requirements, although the test of relevance is the same. A complaint is a form of representation; distress is something that is manifest or open to view. As a representation made by the complainant, complaint evidence is not independent evidence: it cannot provide independent confirmation of the complainant’s version of events. This is so notwithstanding that the Evidence Act provides that the evidence of the complaint is admissible as to the truth of the facts asserted.
However, where a representation in the form of a complaint is admitted under s 66 of the Evidence Act, the circumstances in which the complaint is made are also relevant and admissible, the distress of a complainant when making the complaint being one such circumstance.
This use of evidence of distress is logically distinct from its use as independent (or circumstantial) evidence of the offending alleged. For it to be used in the latter way, the connection between the distress and the events alleged must be direct, that is, unmediated by (or independent of) the representations constituting the complaint. The distress must be capable of being viewed as having been directly caused by the events that are the subject of the charges. For, as the Court observed in R v Moana:
[W]hen a question arises as to whether the evidence of a complainant found in a distressed condition might to some extent be corroborated by that condition the real question is whether or not it can be said that the condition itself was involuntary, uncontrived and so independent testimony relating to the statements or allegations that [the complainant] has made.[6]
[6][1979] 1 NZLR 181, 184–5 (Woodhouse, Cooke and Richardson JJ) (emphasis added) (‘Moana’).
The Court later characterised distress evidence, employed for the purpose of providing independent support, as ‘an involuntary manifestation of [the complainant’s] feelings’.[7]
[7]Moana [1979] 1 NZLR 181, 185 (Woodhouse, Cooke and Richardson JJ).
The distinction between the use of evidence of distress as context for a complaint and its use as independent or circumstantial evidence of the events alleged may not be easy to draw. In Sailor, McPherson JA observed that requiring a jury to distinguish between distress occasioned by the incident itself, and distress prompted by the complainant’s recollection of the incident in the course of complaining about it afterwards, introduces a ‘further refinement’ into a branch of the law already fraught with complexity.[8]
[8]Sailor [1994] 2 Qd R 342, 346 (Byrne J agreeing at 349).
As Niall JA points out, distress evidence always emanates from the complainant, whether the distress is occasioned by the events themselves or prompted by the complainant’s recollection.[9] In both cases, the complainant is the site of the distress, despite the potential for the distress to qualify as ‘independent’ evidence of the events alleged. Moreover, except in a rare case such as Redpath, the distress will usually accompany some form of complaint. In order to use the distress as circumstantial evidence of the events alleged, that is, as evidence that is (paradoxically) ‘independent’ of the complainant notwithstanding that it emanates from the complainant, the jury must be able to negotiate the difficult analytical path of separating the distress from its immediate context, this being the complaint. We agree with Niall JA that this exercise is fraught with difficulty, particularly where the distress is observed some time after the events alleged.
[9]See SB v The Queen [2020] NSWCCA 207, in which the New South Wales Court of Criminal Appeal concluded that the trial judge was wrong to refer to complaint evidence as ‘independent’: at [113] (Rothman J, Hoeben CJ at CL agreeing at [1], Hamill J agreeing at [178]–[179]).
Moreover, distress in recalling a traumatic event, even where there have been periods of composure after the event itself, is commonplace. The law now recognises that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years.[10]
[10]R vBauer(‘a pseudonym’) (2018) 266 CLR 56, 99 [89] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40.
It is also the case, as Niall JA argues, that if the distress renders the complaint (and the complainant) more believable, it will contribute to the proof of the facts in issue. The assessment of the honesty and reliability of AB could rationally affect, at least indirectly, the assessment of the probability of whether the alleged sexual acts were committed by the applicant.[11] However, this may be so even if evidence of distress cannot, in a given case, constitute independent support of a complainant’s account. The reasoning which permits evidence of distress on a complainant’s part to impact upon an assessment of the veracity of a complaint uttered by such a person does not necessarily proceed on the basis of some causal connection between the distress and the offending.[12] Distress, in such circumstances, may serve to contextualise the complaint, as Niall JA reasons, in a manner that permits the finder of fact to compare ‘what was observed of the complainant’ with how ‘a victim of sexual offending might behave’.[13]
[11]See BQ v The King (2024) 98 ALJR 1008, 1015 [34] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ); [2024] HCA 29.
[12]Niall JA’s reasons, [254].
[13]Niall JA’s reasons, [254].
Once the crucial difference between distress as contextual evidence of a complaint and distress caused by the events complained of is understood, we consider that the oft-cited statement of Winneke CJ, Pape and Starke JJ in Flannery remains good law and represents a clear expression of the sorts of considerations that might bear upon the decision to admit evidence of distress as independent circumstantial evidence. As to this, their Honours said:
In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration.[14]
[14]Flannery [1969] VR 586, 591.
The Court went on to refer to the desirability of a warning being given to juries when distress evidence is admitted, a matter to which we shall return:
We should add that except in special circumstances such as existed in Redpath’s Case … evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.[15]
[15]Flannery [1969] VR 586, 591.
Accordingly, if the reasonable inference from the evidence is that there was a causal connection between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration, that is, it may stand as independent evidence of the offending. Whether that inference may be drawn in any given case is the product of a number of different considerations. Flannery sets out in broad terms the factors relevant to determining whether the necessary causal connection exists.
The connection is to be assessed having regard to factors such as (a) the age of the complainant, (b) the time interval between the alleged assault and the distress, (c) the complainant’s conduct and appearance in the interim, and (d) the circumstances existing when the complainant is observed in the distressed condition. None of these factors stands alone. The question of connection depends on all the circumstances.
If, having regard to factors of this kind, no reasonable inference is open that there is a causal connection between the alleged events and the distress, evidence of distress is not capable of going to the jury as independent evidence of the events alleged.
The temporal consideration in Flannery (factor (b) above) is fundamental to the character of distress evidence. Once again, McPherson JA’s judgment in Sailor is of assistance. Perhaps more than in the case of bruising, bleeding and torn clothing, the value of distress as independent evidence diminishes rapidly with the passing of time.[16] The longer the interval from the alleged events, the more difficult it is to be sure that the distress is not due to some other intervening or unrelated cause:
Eventually a stage in time is reached where, without resorting to testimony of the complainant, it ceases to be possible to link the distress with its alleged cause.[17]
[16]Sailor [1994] 2 Qd R 342, 346 (Byrne J agreeing at 349).
[17]Sailor [1994] 2 Qd R 342, 346 (Byrne J agreeing at 349). See also Moana [1979] 1 NZLR 181, 185 (Woodhouse, Cooke and Richardson JJ).
When this ‘eventually’ occurs will depend on the particular circumstances of the case. We observe that in Flannery, the Full Court did not seek to define the time limit in any particular way. We therefore respectfully disagree with Priest JA, in his discussion of Churchill (a pseudonym) v The King[18] at [161] and [162], that it cannot be accepted that distress observed hours, days or months after the alleged offending might be admissible as independent evidence supporting a complainant’s account. And we are unable to agree with his Honour’s conclusion at [157] that it is necessarily the case that there be a ‘close temporal connection between the observed distress and the alleged offence’.
[18][2024] VSCA 151, [48] (Beach, Taylor and Orr JJA) (‘Churchill’).
In this case, the judge’s direction to the jury required them to be satisfied that the alleged events were the only cause of AB’s distress. That direction was, like the direction in R v Rogers,[19] ‘too favourable to the applicant’. Evidence of distress, as independent circumstantial evidence, may be admitted for this purpose so long as it is not ‘intractably neutral’ as to its causal connection with the alleged offending.[20] That assessment must be made by reference to the cumulation of circumstantial evidence. The circumstantial evidence of distress is not required to be considered in isolation.[21] As Beach, Taylor and Orr JJA said in Churchill, a direction to the effect that distress evidence can be used as evidence of independent support only if the jury is satisfied there is no other reason why the complainant could have appeared distressed at the relevant time therefore ‘overstates the requirement for a causal connection’.[22]
[19][2008] VSCA 125, [18]–[20] (Nettle JA, Redlich JA agreeing at [22]).
[20]Flora v The Queen (2013) 233 A Crim R 320, 331–8 [57]–[94] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192 (‘Flora’).
[21]Flora (2013) 233 A Crim R 320, 336 [82] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192.
[22]Churchill [2024] VSCA 151, [49].
The admissibility of distress evidence must be determined having regard to ss 55 and 56 of the Evidence Act.[23] To be relevant, the distress evidence must be able to rationally affect the assessment of the probability of the existence of a fact in issue — in the present case, that AB did not consent to sexual penetration.
[23]And exclusionary provisions such as ss 135, 136 and 137.
Hence, in this case in order to be admissible as independent supportive evidence, the evidence of AB’s distress, when examined in the context of all the evidence to be adduced at trial,[24] had to be rationally capable of being characterised as attributable to the sexual offending AB alleged, as distinct from having been caused by her fear or shame that her mother would find out that she and JJ had been out on the streets of Melbourne for a number of days working as prostitutes. As will become clear, we do not consider that the evidence of AB’s distress possessed this capacity. But even if it did, we agree with Priest JA that if the distress evidence were to go to the jury on the basis that both factors were in play in causing the distress, the probative value of AB’s distress as independent evidence would be slight, and would be outweighed by the danger of unfair prejudice, thereby engaging s 137 of the Evidence Act.
[24]See Flora (2013) 233 A Crim R 320, 335–6 [79]–[80] (Redlich, Weinberg and Coghlan JJA); [2013] VSCA 192.
In this regard, we adopt the observations of the Court of Appeal of New Zealand expressed in R v Collings,[25] appropriately adapted to the circumstances of the present case,[26] namely that there will exist ‘borderline case[s]’ where evidence of a complainant’s distress is ‘just capable’ of being independently supportive of the complainant’s testimony ‘but … certainly not strongly so’, and thus it may be ‘safer and fairer’ for this evidence not to be admitted for such a purpose.[27]
[25][1976] 2 NZLR 104 (‘Collings’) cited in Moana [1979] 1 NZLR 181, 185 (Woodhouse, Cooke and Richardson JJ).
[26]The relevant passage taken from Collings concerns jury directions on corroboration.
[27]Collings [1976] 2 NZLR 104, 118 (McCarthy P, Richmond and Cooke JJ)
We accept, however, that there may be cases where there are several possible causes for a complainant’s distress, yet the state of the evidence would permit a properly instructed jury, acting reasonably, to form the view that the distress was causally connected to the alleged sexual offending. In such a case, the proper course would be for the trial judge to leave the evidence to the jury, since the evidence could rationally affect the assessment of the probability of a fact in issue.
For the reasons that follow, this is not a case where evidence of AB’s distress should have been left to the jury as evidence that was independently supportive of the complainant.
The evidence concerning AB’s distress
AB gave evidence that after the events, she and JJ headed back to ‘Steve’s’ at approximately 6 am. The evidence as to what happened then is as follows:
Um, when we got to Steve's place, um, went in up to Steve's room. His alarm was going off and it was always at six, that's why I know it was six. Um, we told Steve we'd been raped. Um, he wanted us to call the police. We were just a bit shell-shocked and distressed. So, um, we went and had a bath and he went and called the police, I'm thinking. Somebody did, and I'm pretty sure it was Steve.
…
How was it that you felt once you got back to Steve's place at his suggestion that the police should be called?---I didn't really want to get the police involved. I knew they should be because of what had happened to us. Um, I guess, um, I was more concerned about how, um, people would react to what we were actually doing in St Kilda. Um, I was probably - I probably wasn't that scared of the police. I think I was more scared of my mother. Like, so, um - - -
When asked what they were ‘actually doing’, AB said ‘Um, selling ourselves on the street’. AB was asked ‘Do I take it - that as meaning your mother didn't know?’. She responded ‘No, no’.
AB then described having a bath with JJ:
We both felt really yuck. Um, just had a quick bath and, um, we talked about how we were going to - because we - we didn't want to go to the police and say we were working on the streets. But we still wanted to report it. So we, um, concocted a story of how we were on the streets. Like, I think we were going to say we were hitch-hiking or something and then we were going to say we were catching a taxi back to home. But yeah, so - because we didn't want to tell the police that we were - had been prostituting ourselves.
That was the discussion that you had with [JJ]?---Yes.
AB said that the police arrived pretty soon after they got out of the bath. They were taken to hospital and a medical examination was carried out by an elderly male doctor. AB’s mother then ‘turned up’ at the hospital.
When asked whether she saw anyone she knew at the hospital, AB said:
Yeah, um, my mum. That I was scared of telling her. She turned up.
That was [AB’s mother], is that right?---Yeah, yes.
When was it that your mum came to the hospital?---I don't exactly remember. But I remember her being there and - and being with me.
What happened when your mum came to the hospital?---Um, we were still sticking to the story that we were hitch-hiking. But yeah, I - she was just there as a support for me. So, yeah.
Do you recall if you had any conversation with your mother - - -?---No.
About what had taken place?---No, I'm sorry. I'm sure I did but I don't remember.
Right. You're able to recall though that you didn't say you'd been working as a prostitute to your mother?---No, I didn't tell her that. At that stage, we weren't saying that.
In cross-examination, AB was asked:
Now you wanted the police to believe you, didn't you?---Um I wanted to report what had happened to the police.
And you were both worried that if you told the police that you were streetworkers they might not believe you?---Um no I think I was more worried about the fact that my family were going to be totally disappointed with me.
So you weren't worried about getting in trouble?---Well to a degree, yes I was worried about getting in trouble but I - it was more what are my family going to say.
Because you've given evidence that you went to the point of having sex to avoid getting in trouble?---No, I was raped.
Right. Because you wanted to avoid getting in trouble - - - ? ---No.
- - - around to the police station, that was your evidence?---I think, you know, looking back at it I wouldn't have cared if he had taken us to the police station. I wouldn't have been so vulnerable.
As to AB’s interactions with her mother at the hospital:
Yes, okay. Now, when you were in hospital for that purpose, you said your mum arrived?---Yes.
Yes. And you've already said this, that you didn't tell her the truth about what you were doing on the night? ---That's right.
Or why you were there on that night?---Yes.
Yes. Was she quite upset with you about what - - -?---No, she wasn't upset with me. She was concerned. Her daughter had just been raped.
Yes. Was she interrogating you about why - - -?---No.
You were out or anything like that?---No.
No, okay?---She was being sensitive.
For her part, AB’s mother gave evidence that she received a phone call asking her to come to the hospital in regard to AB. She went to the hospital, walked into the cubicle and there was AB on the bed ‘and very very distressed.’ She was asked:
Did you have any conversation with [AB] at that time?---I did.
What was it that [AB] said to you?---She told me that she'd been raped, she was with a friend and they had got into a car with a man and he had raped both of them and that they were very frightened and because he threatened them and he had a knife.
Did she say where it was that this event had taken place?---Well it was somewhere in the night before.
Did she give you any more detail in that conversation of what she said had happened?---No she didn't.
A moment ago you just said that when you observed [AB] that she was, what was your word, did you say that she was upset? ---Yes I think I said distressed.
What was it about her presentation that led you to say that she was distressed?---Well she was just very very upset and very emotional ah but she wasn't yelling or screaming or anything like that but she was very - I knew she was very very upset.
Discussion
AB’s evidence establishes the following:
(a) AB and JJ returned to Steve’s at about 6 am, having been out all night.
(b)Steve thought that they should report what had happened to them but they were concerned that the police would learn that they had been engaging in sex work.
(c) Steve most likely called the police.
(d)Before the police arrived, AB and JJ had a bath together and worked out what they would tell the police (and others) about what had happened.
(e)AB and JJ resolved to lie about why they got into the applicant’s car and what they were doing in St Kilda that night.
(f)AB was scared her mother would find out that she had been engaging in sex work.
(g)AB was worried about getting into trouble [with the police] for engaging in sex work, but was more worried about her family’s response.
(h)AB concealed from her mother that she and JJ were engaging in sex work that night.
AB was very distressed when she was observed by her mother upon her mother’s arrival at the hospital. AB lied to her mother about what she was doing in St Kilda that night, and knew before her mother arrived that she was going to do so. AB said she was more worried about her mother finding out what she was doing that night than about lying about it to the police.
There were plainly a number of reasons for AB to be distressed when she found herself in hospital that morning. There was at least one other substantial cause for the distress observed by AB’s mother: AB’s concern that her mother would find out she had been engaging in sex work. Allied to this was the imperative to lie to her mother and her decision to lie to the police and perjure herself.
By the time AB’s mother arrived at the hospital and observed AB’s distress, some four hours had elapsed since AB and JJ had returned to Steve’s flat. A number of things had occurred in the interim: AB and JJ had spoken to Steve, who had told them they should make a report to the police; they had had a bath together and worked out what they were going to say to the police, which included lying about why they got into the applicant’s car and, more generally, about what they were up to in St Kilda that night; they had spoken (and lied) to the police; and they had been taken to hospital for an intrusive medical examination. Following this, AB’s mother had arrived and AB had felt compelled to lie to her as well.
In these circumstances, AB’s distress is not rationally capable of being characterised as attributable to the sexual offending that she described. Although the events were quite recent, a lot had occurred since to put AB under significant stress which could itself have caused the distress, irrespective of the alleged offending. Moreover, AB and JJ had the presence of mind, sitting in the bath together, to work out jointly what they would and would not tell the police. The decision to lie, which was exposed very quickly, must have put significant pressure on them both.
In her charge, the judge was at pains to set out the reasons why AB might have been distressed other than because she had been raped:
She might have been upset because she was lying about the fact that – or either lying – either was going to lie, or had already lied to the police about the fact she was not working as a prostitute and how she came to be in St Kilda, knowing that that was something she said on oath, or was under penalty of perjury. So she might have been upset about that or that her mother, generally, might have found out that she was working as a prostitute.
However, the judge left it to the jury to decide whether AB’s distress was causally connected to the events alleged, such that the distress evidence could independently support her allegations:
It is up to you to decide whether [AB’s] distress was because she had been raped, or for some other reason, and what you make of the arguments of counsel. Obviously, you cannot use it as indirect evidence supporting the charges unless you are satisfied that she was distressed because of the alleged sexual offending, and not for some other reason. If you do find that causal connection it is for you to evaluate the weight of the evidence; that is, the extent to which it helps you decide the issues in this case, and in doing this you will use your common sense.
No exception was taken to this direction. The defence had accepted that the evidence was admissible as part of the context of AB’s complaint to her mother; it was not submitted that the jury was not entitled to use that evidence as circumstantial evidence of the events alleged.
In our view, having regard to the other significant possible causes for AB’s distress, and the fact that AB and JJ were preparing to commit themselves to a false and perjured account of their activities, it was not possible for the jury to find the requisite causal connection between the alleged events of the previous night and AB’s distress at the hospital. The distress evidence was intractably neutral as to its causal connection with the alleged offending.
As a result, the distress evidence was not capable of providing independent support for AB’s allegations against the applicant. It should not have been left to the jury on that basis.
Warning as to weight?
The notion that evidence of distress carries ‘little weight’ may find its genesis in Redpath. It features in the emphasised part of the following extract taken from the reasons delivered in that case.
So far as any question of indecent assault is concerned, the learned judge told the jury that her distressed condition observed by Mr. Hall and spoken to by Mr. Hall was capable of being corroboration. The point in this appeal is whether that is so. [Counsel for the appellant] has argued that the distressed condition of the complainant is no more corroborative than the complaint, if any, that the complainant makes, and that while the latter merely shows that the story is consistent and is not corroborative, so the distressed condition is not corroborative. This court is quite unable to accept that argument. It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother’s evidence as to the girl’s condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence, because it is all part and parcel of the complaint. The girl making the complaint might well put on an act and simulate distress. But in the present case the circumstances are entirely different. Here is this little girl emerging from the moor in a matter of seconds after the appellant has left, not about to make a complaint at that particular moment and with no idea that she is being observed or that anybody thinks that anything improper has happened. Quite clearly in those circumstances the observation of Mr. Hall, an independent bystander, was very strong evidence, if accepted by the jury, of the little girl’s story.[28]
[28]Redpath (1962) 46 Cr App Rep 319, 321–2 (Parker CJ, Winn and Brabin JJ).
As is evident, an instance — according to Redpath — where ‘little weight’ would be accorded to evidence of distress was where a ‘girl goes in a distressed condition to her mother and makes a complaint’. Little, if any, weight should attach to this evidence of distress as independent support for the complainant because ‘it is all part and parcel of the complaint’.
However, as the passage from Flannery extracted above reveals,[29] the Court in Flannery appears to have expanded the scope beyond what was considered necessary in Redpath for treating distress evidence as evidence that is of ‘little weight’.[30]
[29]See [22] above.
[30]And directing juries in such terms.
Whether a jury should be warned that distress evidence carries ‘little weight’ must now be examined in light of the terms of the Jury Directions Act 2015.[31] A warning of this nature would qualify as a ‘particular direction … in respect of … the evidence in the trial relevant to the matters in issue’,[32] and, as such, must be the subject of a request by counsel.[33] The judge ‘must give’ the direction ‘unless there are good reasons for not doing so’[34] and the judge, generally, ‘must not’ give the direction unless it was requested.[35] A trial judge will retain the ability to give the warning, despite it not having been requested, so long as the judge ‘considers that there are substantial and compelling reasons for doing so’.[36]
[31](‘JDA’).
[32]JDA, s 12(b).
[33]JDA, s 12.
[34]JDA, s 14.
[35]JDA, s 15.
[36]JDA, s 16.
It may be that there will be good reasons for giving such a warning in many cases, although not because victims of sexual assault are prone to ‘putting on an act’ as was suggested in Redpath. To the contrary. It is now well known that victims are often reluctant to make a complaint. However, because distress involves the expression of strong feelings, and is likely to enliven strong feelings in others, evidence of distress is susceptible to being given more weight than it deserves, especially where there is very limited evidence other than the complaint itself and the case is essentially one of word against word.
We therefore agree with Priest JA that rather than reflecting outmoded stereotypes about the typical behaviour of victims of sexual assault, the caution often attaching to evidence of distress reflects an understanding of its capacity to be misused.
The risk that a jury may misuse, or place inordinate weight upon, evidence of distress may be seen as the obverse (or as the counterpart) to the risk that juries will undervalue a complainant’s evidence of having suffered a sexual assault in circumstances where the complainant expresses no emotion or distress on reporting, or giving evidence about, the offending incident.
Thus, the Victorian Law Reform Commission’s final report, Improving the Justice System Response to Sexual Offences, included the following recommendation:
New jury directions should be introduced in the Jury Directions Act 2015 (Vic) to address misconceptions about sexual violence on:
a.an absence or presence of emotion or distress when reporting or giving evidence[37]
[37]Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report, September 2021) 441.
Section 54K(5) of the JDA now provides that if the complainant is to give evidence, the trial judge must inform the jury that experience shows that—
(a)because trauma affects people differently, some people may show obvious signs of emotion or distress when giving evidence about a sexual offence, while others may not; and
(b)both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress.
Section 54K was introduced by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, s 56. In the Second Reading Speech to the Bill,[38] the Minister[39] said:
New Division 5 [of the JDA, including s 54K] requires a trial judge to give a direction on the complainant’s distress or emotion while giving evidence, unless there are good reasons for not giving the direction. This will guard against a jury making incorrect assumptions as to these issues, promoting victim-survivors’ rights and achieving fairer outcomes in proceedings for sexual offences. Again, these new directions reflect extensive research on common misconceptions about sexual offence victim-survivors, as discussed by the [Victorian Law Reform Commission].[40]
[38]Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022.
[39]Minister for Corrections, for Youth Justice, for Victim Support, and for Fishing and Boating.
[40]Victoria, Parliamentary Debates, Legislative Assembly, 4 August 2022, 2892.
Although s 54K applies when evidence is given by the complainant, it tells us something more generally about the weight to be given to evidence of a complainant’s response to having been offended against sexually. Just as an absence of distress may not indicate that a rape or assault did not occur, so too the presence of distress may not indicate that it did.
The use of evidence of distress must be approached with considerable care. Distress which accompanies a complaint may not say anything about whether asserted facts are true. The complexity involved in disentangling the permitted use of evidence of distress as context for a complaint from its use as circumstantial evidence of the events alleged requires significant caution by trial judges when leaving distress to the jury. In many cases where determining the cause of the distress is left to the jury, a warning concerning the weight to be accorded to distress evidence should be given.
Given our conclusion that the evidence ought not to have been admitted in this case, it is unnecessary to decide whether there were ‘substantial and compelling’ reasons within the meaning of s 16 of the JDA to give the jury a warning as to its use.
Conclusion
Although no criticism can be made of the trial judge, who was at pains to discuss the treatment of the distress evidence with counsel and carefully followed the bench book in directing the jury, we have concluded that a substantial miscarriage of justice occurred because the jury was invited to use AB’s distress as independent support for her account in circumstances where it was simply not open to the jury to find the requisite causal link between the distress and the events complained of. We would grant leave to appeal against conviction; allow the appeal; set aside the applicant’s convictions; and order a new trial.
PRIEST JA:
Introduction
Distress and complaint are distinct evidentiary concepts. They owe their admissibility to different considerations. That they are fundamentally different, however, is not reflected in the respondent’s arguments, whose submissions were apt to conflate the two.
At common law, in a case such as the present, the distressed condition of a complainant, observed shortly after an alleged sexual offence, may constitute corroboration of the complainant’s evidence. By its nature, corroboration is independent evidence that
confirms or supports the complainant’s testimony.[41], [42] It must tend to connect the person against whom it is given with the alleged crime. As Isaacs J put it in Ridley v Whipp — citing Baskerville[43] — ‘the independent evidence must support the story both as regards the alleged crime and the alleged criminal’.[44] That evidence of distress must come from a source independent of the complainant was made abundantly clear more recently in Meyer, a case of rape and indecent assault in which the trial judge directed the jury that the complainant’s own evidence of her distress was independent support for her evidence that she was raped and indecently assaulted. Nettle JA observed:[45]
The error is obvious. It is rudimentary that a complainant’s testimony is incapable of constituting independent evidence in support of her own allegations.[46] As Barton J put it in Ridley v Whipp,[47] the notion that a complainant is capable of corroborating herself by her own evidence –
‘... reminds one of the familiar simile of a man trying to lift himself off the ground by his bootstraps. If one part of a person’s evidence is relied on for corroboration of the remainder, the answer instantly arises that the part relied on is as much under the original reservation as the part sought to be corroborated.’
[41]In DPP vHester [1973] AC 296 (a case concerned with whether the unsworn evidence of a child admitted under s 38(1) of the Children and Young Persons Act 1933 could constitute corroboration of the sworn evidence of another child), Lord Pearson observed (at 321) that ‘the word “corroboration” in itself has no special legal meaning: it is connected with the Latin word “robur” and the English word “robust” and it means “strengthen”: perhaps the best synonym is “support”.’ And Lord Diplock observed (at 325):
An examination of the basic 19th-century cases makes it plain that in the judgments ‘corroboration’ was not used in any other sense than ‘confirmation’. This is the expression actually used in six out of the seven cases approved in Rex v Baskerville [[1916] 2 KB 658]. Even in Rex v Baskerville itself the terms ‘corroboration’ and ‘confirmation’ are used interchangeably. I conclude, therefore, that the word ‘corroborated’ as used in the proviso to section 38(1) of the Children and Young Persons Act 1933 is not a term of legal art, and that the proviso bears no different meaning from that which it would have borne if the word, commoner in ordinary usage, ‘confirmed’ had been substituted for it.
[42]In R v Apostilides (1983) 11 A Crim R 381, 401–2, Kaye J suggested that, when directing a jury on corroboration, the expression ‘supporting’ should be avoided (a view apparently endorsed in R v Kehagias [1985] VR 107, 112). But in R v Rosemeyer [1985] VR 945, 949–50, Young CJ made it clear that no ‘particular words’ were required.
[43]R v Baskerville [[1916] 2 KB 658] (1916) 12 Cr App R 81, 91 (Lord Reading CJ).
[44]Ridley v Whipp (1916) 22 CLR 381, 392.
[45]R v Meyer [2007] VSCA 115, [9] (Nettle JA, Vincent and Redlich JJA agreeing) (‘Meyer’). See also Seccull v The King (2022) 69 VR 454, 467 [40] (Priest AP) (‘Seccull’).
[46]R v Christie [1914] AC 545 at 557; R v Whitehead [1929] 1 KB 99 at 102; Eade v The King (1924) 34 CLR 154 at 157; Heydon, Cross on Evidence, Aust. Ed. at [15185].
[47](1916) 22 CLR 381 at 389.
Complaint evidence is an entirely different species of evidence. Whether at common law, or admitted as an exception to the hearsay rule under the Evidence Act 2008 (‘the Act’), evidence of complaint cannot provide independent support for the complainant’s evidence, since its source is the complainant.
At common law, evidence of a recent complaint was admitted simply to buttress the complainant’s evidence given in the witness box. It provided ‘no evidence at all’, and was inadmissible if it stood on its own and the complainant was not called to give evidence. When admitted, it was not corroborative of the complainant’s evidence.[48] To be admissible as evidence, the complaint needed to be made at ‘the first reasonable opportunity’ after the alleged sexual offence.[49] And the jury were to be directed that the complaint could be used as throwing light on the credibility of the complainant to the extent that it showed consistency in the complainant’s account of the relevant event.[50]
[48]R v Freeman [1980] VR 1, 4 (Starke, McInerney and Murphy JJ) (‘Freeman’). See also Papakosmas v The Queen (1999) 196 CLR 297, 305 [17] (Gleeson CJ and Hayne J) (‘Papakosmas’).
[49]Freeman, 6.
[50]Ibid.
Under the Act, however, complaint evidence — a ‘previous representation’ — may be admitted not only to assess the credibility of a complainant (by demonstrating that the complainant’s account has been consistent), but also to prove the truth of the facts asserted in the complaint. By virtue of s 66(2), evidence of a complaint is admissible if the person who made the complaint ‘has been or is to be called to give evidence’; and either, the occurrence of the asserted fact was ‘fresh in the memory of the person who made the representation’ at the time it was made, or ‘the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made’. But the complaint remains hearsay.[51] And, since it is not evidence from an independent source, cannot constitute corroboration of the complainant’s testimony.[52]
[51]SB v The Queen [2020] NSWCCA 207, [116] (Rothman J, Hoeben CJ at CL and Hamill J agreeing) (‘SB’).
[52]SB, [112]–[114].
There can be no doubt that the admissibility of evidence of a complainant’s distress was first authoritatively acknowledged in Redpath,[53] a case in which the Court of Criminal Appeal concurrently drew a sharp distinction between evidence of distress and evidence of complaint. (Indeed, as will become clear, the Court in Redpath considered that the strength of the distress evidence in that case lay in the fact that a child was observed in a distressed condition by an independent bystander seconds after an alleged sexual assault in circumstances where the child did not know she was being observed, and was not in the process of making a complaint.) In the wake of Redpath, distress evidence assumed some prominence in — and, more recently, has bedevilled — criminal cases in this State involving alleged sexual offending. Although, following Flannery,[54] the evidentiary rules in Victoria concerning distress evidence appeared to be tolerably well-settled, recent decisions of this Court — principally Charles[55] and Churchill[56] — have thrown the relevant jurisprudence into some disarray. It is against that backdrop that the issues in this case fall to be determined.
[53]R v Redpath (1962) 46 Cr App Rep 319 (Parker LCJ, Winn and Brabin JJ) (‘Redpath’).
[54]R v Flannery [1969] VR 586 (Winneke CJ, Starke and Pape JJ) (‘Flannery’).
[55]Charles (a pseudonym) v The Queen [2022] VSCA 166 (Emerton P, Kyrou and T Forrest JJA) (‘Charles’).
[56]Churchill (a pseudonym) v The King [2024] VSCA 151 (Beach, Taylor and Orr JJA) (‘Churchill’).
In the present case, the applicant was convicted at trial in the County Court on 31 August 2022 of kidnapping (two charges – charges 1 and 2); rape with aggravating circumstances (two charges – charge 3 and 12); and gross indecency (four charges – 5, 10, 11 and 14). Subsequently, on 7 March 2023, the judge sentenced the applicant to a lengthy term of imprisonment. By notices filed on 4 April 2023, the applicant sought leave to appeal against both conviction and sentence.
Initially, the applications came before a full court (Emerton P, Niall and McLeish JJA) on 7 May 2024. Judgment was yet to be delivered, when reasons for judgment in Churchill were published on 28 June 2024. Given a number of the statements of principle in Churchill concerning distress evidence bore upon the resolution of the first ground in the present case, it was resolved that the Court in this case should be reconstituted as a full bench to hear further argument.[57] In the result, supplementary written submissions were invited from the parties; and, having read the transcript of the hearing of 7 May 2024, Boyce JA and I joined the original members of the Court and heard further oral argument bearing on ground 1 on 22 August 2024.
[57]On 7 November 2024, the High Court granted special leave against this Court’s decision: R v Churchill (a pseudonym) [2024] HCASL 283.
The relevant offending was alleged to have been perpetrated by the applicant more than 37 years ago, on 7 May 1987, against ‘AB’, then aged 16 years, and ‘JJ’, then aged 15 years (now deceased), when AB and JJ were working as street prostitutes in St Kilda. With respect to the application for leave to appeal against conviction, the issues in the case revolve around evidence given at trial by ‘FR’, AB’s mother, concerning her observations of AB’s distressed condition, made some four and a half hours after the cessation of the alleged offending, and around certain mistakes made by both the prosecutor and defence counsel at trial.
In my view, the first ground of appeal, which contends that a substantial miscarriage of justice occurred because, first, the jury was invited to use the complainant’s distress as independent support for her account; and, secondly, the jury was not warned that evidence of distress is a species of evidence that carries little weight, must succeed. For the reasons that follow, I would grant leave to appeal against conviction; allow the appeal; set aside the applicant’s convictions; and order a new trial.
Since I regard much of what was advanced by the respondent concerning the admissibility of distress evidence, and the jury directions necessary if such evidence is introduced at trial, to be untenable, it is unavoidable that, when dealing with the first ground, I repeat a deal of what I said in Seccull: first, as to the principles governing the admissibility of distress evidence; and, secondly, as to the directions required if distress evidence is before the jury. In so doing, it will be necessary to recapitulate in moderate detail the authorities that establish the relevant principles.
Furthermore, for the reasons I will give, I consider that ground 2 should also succeed.
Given that the evidence in the trial has, however, been summarised in some detail by Niall JA, whose reasons for judgment I have had the considerable advantage of reading in draft, I need only restate so much of the evidence as is necessary to make my own reasons comprehensible.
In light of my conclusions on the conviction application, it is unnecessary to consider sentence.
The trial
The evidence established that after the alleged offending had ceased, the applicant dropped AB and JJ in Grey Street, St Kilda, shortly prior to 6.00 am. They then went to Steve Tatham’s boarding house — his six o’clock ‘alarm was going off’ — and told him that they had been raped. While they were having a bath, someone called police, who arrived at around 8.30 am. Before police arrived, AB and JJ ‘concocted’ a story that they were hitchhiking and were picked up by the man who had raped them, and that they would not tell anyone they had been engaged in sex work.
Police took AB and JJ to the Queen Victoria Hospital, arriving at about 10.25 am. At 11.11 am, AB was medically examined.
FR, AB’s mother, gave evidence that when she arrived at the hospital she saw AB on a bed in a cubicle. AB was ‘very very distressed’ and told her that the night before she and a friend had gotten into a car with a man who had then raped both of them. They were very frightened and he had threatened them with a knife. She described her daughter as ‘very very upset’ and ‘very emotional’. Based on the evidence, it is plain that AB’s distressed condition was observed by her mother at least four and a half hours after the alleged offending had concluded, in circumstances where there were factors other than the alleged offending which may have explained her distress.
In his final address to the jury, it is plain that the prosecutor relied on AB’s distress, observed by her mother, as independent supporting evidence. When doing so, he drew a distinction between complaint evidence and distress evidence, making it clear that complaint evidence was not independent evidence, but that AB’s observed distress was independent evidence that supported her account. He said:[58]
Now, it’s going to be pointed out to you that this complaint, despite me suggesting it stands against any sort of recent invention, a lie told, because it’s consistent over time doesn’t include saying that she was a prostitute. Of course it doesn’t. And what’s more, it will be pointed out to you that the source of this information that [sic] [FR] is still [AB]. All you’re really getting is the evidence of a conversation where [AB] said something to her mother. It’s consistent but it’s not independent evidence.
But her mother’s observation of the distress that [AB] was experiencing at the time is independent evidence. And that shows that provided you’re satisfied that there was a causal connection between the way [AB] was upset in that hospital bed the morning after and the alleged offending, well, you can use your common experience that recounting a stressful experience is accompanied by outward signs of distress.
[AB] told you about her naivete at age 16, about her fears for the relationship with her mother if she found out what she had been doing and how close in time it was to the alleged kidnapping and rape, just a matter of hours. You could be satisfied that [AB] was upset, as observed by her mother, because of what she’d experienced and that is independent evidence that supports her.
[58]Emphasis added.
In brief discussion prior to the applicant giving evidence, the judge told counsel that she will ‘be giving directions [to the jury], of course, about the fact there was a recent complaint and distress, what they can make of that’. And after the close of the evidence, in the kind of discussion contemplated by ss 11 and 12 of the Jury Directions Act 2015 (‘JDA’), there was the following exchange:
HER HONOUR: I’m going to give a separate distress direction. There was a recent case about distress which I just want to refresh my memory about,[[59]] but essentially what I was going to say about this is; that, ‘You heard evidence about [AB’s] apparent distress from her mother and, again,’ I’ll remind the jury of what it was. ‘If you find that [AB] was distressed soon after the alleged offence and [her mother’s] evidence was not disputed, the prosecution invites you to use this as indirect evidence or circumstantial evidence that supports its case that she did not consent to the sexual penetration with the accused.’ And if there are any arguments you make, [defence counsel], I’ll put them in as well. ‘It’s up to you to decide whether [AB’s] distress was because she had been raped or for some other reason and whose argument you accept. It’s for you to evaluate the weight of this evidence; that is, the extent to which it helps you decide the issues in the case. In doing so, you will use your common sense.’
[PROSECUTOR]: I have no issue – I take no issue with that, Your Honour.
HER HONOUR: [Defence counsel], happy with that?
[DEFENCE COUNSEL]: Yes, Your Honour. I mean, I will be going to the jury on the basis that there were other reasons for distress.
HER HONOUR: You will?
[DEFENCE COUNSEL]: Of course.
HER HONOUR: Yes. Yes, well, I mean, as I say, I’ll mention them.
[DEFENCE COUNSEL]: Yes, she was just about to perjure herself, that’s one reason to be distressed. But that’s what I’ll be saying to the jury and I trust that Your Honour will - - -
HER HONOUR: All right.
[DEFENCE COUNSEL]: - - - incorporate those.
[59]Paull v The Queen [2021] VSCA 339 (Priest, Kaye and Niall JJA) (‘Paull’) was published on 7 December 2021. Presumably, Paull was the case that the judge had in mind, since judgment in Seccull was delivered on 14 October 2022, after the applicant’s trial had concluded.
In the course of her charge, the judge endorsed the notion that FR’s evidence concerning AB’s observed distress was indirect or circumstantial evidence that could support the prosecution case. The judge gave the following directions to the jury:
Now, I am going to talk to you about distress, and what I mean by that is that you heard some evidence about [AB’s] apparent distress from her mother, and I will just remind you of – in fact, I will remind you of what her mother said, because I meant to remind you a bit earlier on.
So her mother says she went to hospital, because she got a telephone call that day and she had to go to a hospital. She did not remember where it was, hurried there and walked – remembered walking into a cubicle and there was [AB] on the bed and very, very distressed. She was asked about a conversation. She said, ‘She told me that she’d been raped. She was with a friend and they’d got into a car with a man and he had raped both of them, and that they were very, very frightened’, sorry. ‘They were very frightened, and because he threatened them and he had a knife’, and she was asked when it happened. She said, ‘It was somewhere in the night before’, and then a bit later she was asked again about her presentation. She said, ‘Well, she was just very, very upset and very emotional, but she wasn’t yelling or screaming, or anything like that, but she was very – I knew she was very upset’. So that was her evidence.
If you find that [AB] was distressed soon after the alleged offence – and [FR’s] evidence was – about that was not disputed – the prosecution invites you to use this as indirect evidence; that is, circumstantial evidence that supports its case that [AB] did not consent to the sexual penetration with the accused. The defence of course dispute this and they say, well, there might be other reasons that she was upset. She might have been upset because she was lying about the fact that – or either lying – either was going to lie, or had already lied to the police about the fact she was not working as a prostitute and how she came to be in St Kilda, knowing that that was something she said on oath, or was under penalty of perjury. So she might have been upset about that or that her mother, generally, might have found out that she was working as a prostitute.
So that is what the defence say, so it is for you to assess those arguments. It is up to you to decide whether [AB’s] distress was because she had been raped, or for some other reason, and what you make of the arguments of counsel. Obviously, you cannot use it as indirect evidence supporting the charges unless you are satisfied that she was distressed because of the alleged sexual offending, and not for some other reason. If you do find that causal connection it is for you to evaluate the weight of the evidence; that is, the extent to which it helps you decide the issues in this case, and in doing this you will use your common sense.
Noticeably, the judge did not warn the jury that evidence of distress carried little weight.
The applicant’s submissions in support of the first ground
In their initial submissions in this Court concerning ground 1, counsel for the applicant submitted that the evidence of AB’s distress when complaining to her mother was inadmissible as corroboration of AB’s account. Too much time had passed between the complainant’s alleged trauma and the observed distress for evidence of that distress to be independent supporting evidence. Thus, the alleged offending had concluded by approximately 6.00 am. AB had then complained to Steve Tatham and colluded with JJ to tell the police falsely that their assailant had forced them into his vehicle by threats and to deny they were sex workers. Although there was no evidence of precisely what time her mother, FR, attended the hospital and observed AB’s distress, AB herself did not arrive at the hospital until 10.25 am. Therefore, at least four and a half hours had elapsed between the alleged offending and observed distress.
The offending, counsel submitted, was not the only potential source of AB’s distress. AB had had no sleep, was ‘scared’ of telling her mother and she lied to her. She was not asked the source of her distress. And the quality of the distress evidence was poor, FR’s evidence being given some 35 years after the relevant events, when she had little recollection of the circumstances surrounding the display of distress. The first complaint witness and the other complainant were both deceased, Steve Tatham having died in 2000, and JJ in 2013.
Counsel submitted that, even were the evidence of distress admissible as going to the quality of AB’s account or to ‘context’, the jury should not have been invited to use the evidence of distress as independent evidence in support of AB’s account. It was not of a kind which could have enabled the jury to find that the distress was involuntary or uncontrived and, in effect, independent testimony.
Further, and in any event, counsel submitted, the directions given to the jury were inadequate. The jury were invited to decide for themselves what weight to give the evidence of AB’s distress, when instead they ought to have been warned that evidence of distress carried little weight.
Counsel submitted that the trial was quintessentially oath against oath. More than 35 years separated the events in question and the applicant’s trial. It cannot be said that, absent the errors the subject of this ground of appeal, the applicant’s convictions were inevitable. There has occurred a substantial miscarriage of justice.
In their supplementary submissions on ground 1, counsel for the applicant submitted that Churchill was wrongly decided, and betrays error in at least four respects.
First, the Court’s finding that, if the jury had been properly instructed, it would have been open to them to use as corroboration of the alleged crime the complainant’s distress when recounting its events 12 months after the alleged sexual assaults[60] is at odds with established authority. There is no warrant, in principle or logic, to depart from the law’s traditional insistence that, to qualify as corroboration, observations made of a complainant’s distress must occur shortly after the alleged crime and in circumstances independently linking them to it.[61]
[60]Churchill, [54].
[61]Cf Churchill, [48]–[49].
Secondly, that holding, counsel submitted, manifests a conflation of two distinct types of distress evidence, and their reception and use in a criminal trial. Distress evidence which accompanies a complaint may be admissible to give context to, and to inform the complaint, thereby forming part of the evidence used by a jury to assess the complainant’s credibility. On the other hand, distress evidence received to corroborate the complainant — or as indirect or circumstantial evidence of the crime alleged — earns its logical force by remaining separate from a complainant’s account. Because it is received and used as corroboration or circumstantial evidence, its assessment and use occur without resort to the complainant’s account. To do otherwise would be to use ‘bootstraps’ reasoning and permit the complainant to self-corroborate. For that reason, the conditions for the reception of distress evidence have traditionally been strict.
Thirdly, the Court’s finding that a jury which receives evidence of distress does not need to be satisfied, before it uses it as indirect or circumstantial evidence, that the alleged crime is its only reasonable cause,[62] is wrong.
[62]Churchill, [49].
Fourthly, counsel contended, the Court in Churchill made material changes to the law governing the reception and use of distress evidence in criminal trials when it is relied upon as corroboration. It did so without identifying which of the earlier authorities are wrong, or why they are wrong.[63] And it did so without (expressly) acknowledging that its material changes to the law represented a departure not just from earlier Victorian authorities, but from those which continue to apply in other Australian jurisdictions.
[63]Cf Seccull, 469 [47] (Priest AP).
I agree with these submissions concerning Churchill.
Counsel for the applicant further submitted that this Court recognised in Paull that distress displayed by a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant’s account.[64] The logical force of such evidence resides in the connection between the alleged incident and the distress.[65] To be admissible, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence.[66] In so holding, counsel submitted, the Court cited many authorities of this Court stretching across decades,[67] which have continued to be cited and applied in jurisdictions outside Victoria without any material modification.
[64]Paull, [40] (Priest, Kaye and Niall JJA).
[65]Ibid [42].
[66]Ibid [40].
[67]Including Flannery; R v Rogers [2008] VSCA 125, [18]–[20] (Nettle JA) (‘Rogers’); Flora v The Queen (2013) 233 A Crim R 320, 333 [69] (Redlich, Weinberg and Coghlan JJA) (‘Flora’); R v Munro [2005] VSCA 260, [49] (Nettle JA) (‘Munro’); R v Meyer [2007] VSCA 115 (‘Meyer’).
Counsel submitted that, prior to Charles, only two decisions of this Court represented departures from these authorities. In Charles, the Court held that a complainant’s distressed state at the time of her complaint to her partner (some) two or three years after the alleged offending had ceased was reasonably capable of being viewed by the jury as causally connected to the offending.[68] And in Seccull, Niall JA and Kidd AJA left open the question of whether distress which accompanied a complaint by the complainant to her friend, six weeks after the last charged offence and more than four years after the earlier alleged offending, was capable of corroborating the offences alleged.[69] By way of contrast, the Court in Nimely held that a complainant’s distress some six weeks after the last alleged offence was incapable of founding the requisite causal connection for its use as corroboration, and was ‘inadmissible as evidence providing independent support for the complainant’s account’.[70]
[68]Charles, [90].
[69]Seccull, 479–80 [87]–[92].
[70]Nimely (a pseudonym) v The King [2023] VSCA 20, [26] (Priest, Taylor and Kaye JJA) (‘Nimely’).
The applicant’s counsel submitted that in Seccull I had emphasised the need for there to exist a close temporal connection between the alleged crime and the distress before distress could be used as corroboration, and that I concluded that the distress evidence had been wrongly admitted for that purpose. I had also held that the conclusion reached in Charles about the distress evidence in that case was plainly wrong. On the other hand, Niall JA and Kidd AJA did not conclude that the evidence had been wrongly admitted. Counsel cited passages of their reasons for judgment,[71] and submitted that error was displayed in one particular passage.[72] Thus, counsel submitted, although Niall JA and Kidd AJA were correct to observe that the cases on distress arose in a context where there was a need for independent evidence to support the word of a complainant in cases of sexual offending, they were not correct to observe that fact underpinned the caution and rigour with which courts received distress evidence in criminal trials. It was (and continues to be) the corroborative purpose for which the evidence is led that governed (and continues to govern) its admissibility. Nor has the reception of distress evidence to date been tied to, or dictated by, a dated understanding of the effects of sexual offending on complainants. Distress which accompanies a complaint is admissible, even when the complaint is delayed. But corroborative evidence of an event, without resort to a complainant’s account, demands that the evidence be linked temporally and circumstantially to the event. That is how evidence of distress earns its logical force and how it avoids the error of prohibited self-corroboration and bootstraps reasoning.
[71]Seccull, 479–80 [87]–[92].
[72]Ibid 480 [92].
The distinction between complaint evidence and evidence of distress led as corroboration, both at common law and under the Uniform Evidence Acts, has been discussed in most Australian jurisdictions.[73] Counsel submitted that those cases emphasise that distress evidence is not complaint evidence or a species of complaint. Distress is a manifestation; complaint is a representation.
[73]Counsel cited Papakosmas, 305 [17], 305 [20] and 307 [23] (Gleeson CJ and Hayne J); SB, [113]–[127] (Rothman J, with whom Hoeben CJ at CL and Hamill J agreed); Meyer, [12] (Nettle JA), citing R v E (1996) 39 NSWLR 450, 460 (Sterling J); R v McCaskill [2017] QCA 172, [58] (Douglas J with whom Sofronoff P and McMurdo JA agreed) (‘McCaskill’); R v MDP [2023] QCA 134, [58] (Henry J, with whom Mullins P and Morrisson JA agreed) (‘MDP’); Akkerman v WA [2021] WASCA 51, [62] (Vaughan JA) (‘Akkerman’).
At common law, counsel submitted, evidence of complaint was admissible if it was made shortly after the alleged offence. It was not admissible as proof of the content of the complaint, however, but to enhance the complainant’s credibility, by demonstrating consistency with the account subsequently given in court.[74] Under the Uniform Evidence Acts, by reason of s 60, complaint evidence is evidence of the truth of the complaint. It is not, however, ‘independent’ evidence. Its value depends upon the truthfulness or accuracy of the complainant, who has otherwise given evidence or is available to give evidence.[75] And it does not constitute corroboration of the evidence given by a complainant.[76] It remains hearsay evidence,[77] its admissibility by operation of s 66 of the Act being conditioned on the asserted fact was fresh in the memory of the person who made the representation.[78] But although the Uniform Evidence Acts provide a more liberal framework than the common law within which to receive complaint evidence, they provide no basis to do likewise with respect to distress evidence relied upon as corroboration or indirect evidence.
[74]Freeman, 4.
[75]SB, [113].
[76]Papakosmas, 305 [17].
[77]SB, [116].
[78]SB, [118].
Having cited from MDP,[79] counsel submitted that the rigour with which Courts have traditionally assessed the probative value of distress evidence when it is relied upon as corroboration has little to do with its history or with a dated appreciation of trauma. It has to do with the fact that it must independently — and without resort to a complainant’s account — constitute circumstantial evidence in proof of the crime alleged. That is why evidence of distress when it accompanies a complaint — and, in particular, a delayed complaint — can rarely provide indirect support for the crime alleged.[80]
[79]MDP, [55]–[59].
[80]Counsel cited R v Waye (1984) 14 A Crim R 391, 393–4 (King CJ) (‘Waye’); R v Schlaefer (1984) 37 SASR 207, 216 (King CJ) (‘Schlaefer’); R v Sailor [1994] 2 Qd R 342, 346 (McPherson JA) (‘Sailor’); and Meyer, [12] (Nettle JA).
Counsel submitted that the test for a trial judge when considering whether evidence of distress should be admitted into evidence and left to the jury as corroboration is whether the evidence is reasonably capable of satisfying the jury — or whether it would be reasonably open to the jury to infer — that the crime alleged was the cause of the distress.[81] If there are competing inferences or explanations but the inference is open, the jury may receive the evidence and be invited to find that it provides indirect support for a complainant’s account. But the test for the jury is and has always been a higher one. A jury may not use evidence of distress as corroboration or circumstantial evidence unless the jury finds that it is reasonably explicable only by the alleged crime. Put another way, before a jury can use evidence of distress as corroboration it must exclude, as reasonable explanations for the distress, all potential causes other than the crime alleged. Hence, by characterising the way in which the authorities have to date formulated the jury’s task when distress evidence is admitted as an ‘overstatement’,[82] and concluding that a jury could use evidence of distress as corroboration of a complainant’s account without first finding that the crime alleged was the only cause of his or her distress, the Court in Churchill erred.
[81]Counsel cited R v Dhir (2019) 133 SASR 452, 465–6 [68]–[69] (Kourakis CJ) (‘Dhir’), applying Schlaefer and Flannery. See also Akkerman, [62] (Vaughan JA), and Lynch v The Queen [2020] NTCCA 6, [75].
[82]Churchill, [49].
Outside Victoria, counsel submitted, no State or Territory court has expressed an intention to revise or modify the rules relating to the reception and use of distress evidence when relied upon as corroboration. On the contrary, a review of the recent cases decided by intermediate appellate courts reveals a continued and reasoned application of the seminal authorities.
In New South Wales, the leading case, Gulliford,[83] applied that Court’s earlier decision of McNamara,[84] together with both Schlaefer and Flannery.[85]
[83]R v Gulliford (2004) 148 A Crim R 558 (‘Gulliford’).
[84]R v McNamara (2002) 131 A Crim 140, [35] (‘McNamara’).
[85]Gulliford, 588 [150]–[151] (Wood CJ at CL, with whom Spigelman CJ and Howie J agreed).
In South Australia, Kourakis CJ twice recently surveyed the authorities dealing with distress evidence led as corroboration. In Dhir, he likened distress evidence to ‘evidence of torn or damaged clothing or a generally dishevelled appearance’.[86] After citing Bycko (No 2),[87] Flannery, Schlaefer and Flora, Kourakis CJ concluded that the evidence in that case of the complainant’s distress an hour after one of the alleged assaults was capable of amounting to corroboration; but her distressed state the next day was not.[88] The following year, in SPC,[89] Kourakis CJ cited and applied his earlier judgment in Dhir, referring again to Bycko (No 2), Schlaefer and Flannery.[90]
[86]Dhir, 466 [70] (Stanley and Doyle JJ agreeing).
[87]R v Byczko (No 2) (1977) 17 SASR 460 (‘Byczko (No 2)’).
[88]Dhir, 466 [70].
[89]SPC v The Queen [2020] SASCFC 43 (‘SPC’).
[90]SPC, [39]–[42] (Nicholson and Bampton JJ agreeing).
In Queensland, the leading cases are Sailor and Williams.[91] In Sailor, the Court concluded that the complainant’s distressed condition — first observed more than eight hours after her alleged assault — was not capable of being corroborative of her claim that she was raped. In Williams, the Court of Appeal quashed the applicant’s three convictions for rape because the jury were permitted to consider evidence of the complainant’s distress about one month after the last alleged offence as corroboration. In summarising and applying the relevant authorities, Fraser JA referred to Flannery and Sailor.[92]
[91]R v Williams [2010] 1 Qd R 276 (‘Williams’).
[92]Williams, 285–287 [37]–[42] (Cullinane and Jones JJ agreeing). See also MDP, [55]–[59].
In Western Australia, in the leading case of Eades, the court applied Flannery.[93] And in Grubisic,[94] Buss JA and Hall J in separate judgments cited and applied Gulliford, Eades and Flannery.
[93]Eades v The Queen [2001] WASCA 329 (‘Eades’). See also Azarian v WA (2007) 178 A Crim R 19.
[94]Grubisic v WA (2011) 41 WAR 524.
Finally, in the Northern Territory, in Lynch, the Court referred to and endorsed Gulliford, Schlaefer, Wilson and Flannery (among others).[95]
[95]Lynch v The Queen [2020] NTCCA 6, [75]–[81] (Grant CJ, Blokland and Hiley JJ) (‘Lynch’).
This review of authority, counsel submitted, demonstrates that there is no support for the modifications made by the Court in Churchill to the rules governing the admission and use of distress evidence as corroboration. Ultimately, counsel contended that both Churchill and Charles were wrongly decided. They represent unprincipled departures from established authority.
The respondent’s submissions on the first ground
In summary, the respondent submitted:
· first, the relevance of evidence of a complainant’s distress at the time of making a complaint and the use the jury is permitted to make of it is to be determined in accordance with the provisions of the Act, not the common law principles, which historically governed the circumstances in which evidence of distress could amount to corroboration;
· secondly, pursuant to s 55(1) of the Act, evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding;
· thirdly, pursuant to s 66 of the Act, in specified circumstances, if a person who made a previous representation is available to give evidence about an asserted fact, the hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made;
· fourthly, where a representation is admitted under s 66 of the Act, the circumstances in which the statement is made are also relevant and admissible, the distress of a complainant when making the complaint being one such circumstance;
· fifthly, where there is evidence that a complainant is distressed when making a complaint, the logical connection between the distress and the alleged offending, is the fact the complainant is recounting the alleged sexual abuse (it therefore being open for a jury to infer, as a matter of common human experience, that the distress displayed at the time of making a complaint of sexual offending is caused by the complainant having a vivid recollection of the distressing events which they are recounting);
· sixthly, for this reason, this Court in Churchill and Charles were correct to conclude that it was open for the jury in those cases to infer that the distress accompanying complaints made 12 months and three years after the alleged offending, was causally connected to the offending; and
· seventhly, to the extent that this Court concluded in Nimely that the complainant’s distress observed when making her complaint of the offending approximately one month after the most recent alleged sexual offence, was incapable of being caused by the underlying offending and was inadmissible as evidence supporting her account, that decision is inconsistent with IMM,[96] Bauer[97] and Grattan.[98]
[96]IMM v The Queen (2016) 257 CLR 300 (‘IMM’).
[97]R v Bauer (a pseudonym) (2018) 266 CLR 56 (‘Bauer’).
[98]R v Grattan [2005] NSWCCA 306 (‘Grattan’).
As to whether there were any mitigating factors, the judge considered that the publicity in relation to the case did not reach a level that warranted a discount in sentence. On the issue of delay, the judge noted the applicant’s submission that there was delay caused by the matter not being properly investigated in the first place. The judge concluded:
[I]t seems to me the thoroughness of the original investigation is entirely speculative. Further, this is not a case where you have had the matter hanging over your head for many years. You were first spoken to by the police in February 2020 and thereafter the matter proceeded with the usual pace, covid, [sic] allowing. The delay has certainly meant that you face prison as an older person, but it has also been to your advantage in allowing you to demonstrate rehabilitation. It must also not be forgotten that, while you were able to get on with your life believing you had got away with your crimes, your victims were left to suffer.[237]
[237]Ibid [75].
In relation to the purposes of sentencing, the judge considered the principles of denunciation, general deterrence and just punishment were paramount.[238]
[238]Ibid [79].
Grounds of appeal
In his application for leave to appeal against sentence, the applicant propounds three proposed grounds. It is convenient to deal with them in order.
Ground 1
The submissions
By this ground, the applicant contends that it was an error to impose a conviction and sentence on charge 14 (gross indecency with a person under 16) in circumstances where a single act comprised that charge and the circumstances of aggravation on charge 12.
In support of the ground the applicant points out that the act relied on to establish the circumstance of aggravation in respect of charge 12 was the instruction to JJ to lick AB’s vagina during the act of rape. The act comprising the gross indecency in charge 14 is particularised in the indictment as ‘procured or incited [JJ] to lick [AB]’s vagina’. The applicant contends that it was impermissible for the applicant to be punished twice for a single act.[239] As a result, the conviction and sentencing orders relating to charge 14 should be quashed.
[239]Relying on Interpretation of Legislation Act 1984, s 51; R v Sessions [1998] 2 VR 304; R v Langdon (2004) 11 VR 18; [2004] VSCA 205.
The respondent argues that the act for which the applicant was punished by charge 12 was the vaginal penetration of JJ without her consent, whereas by charge 14 the applicant was punished for the instruction to JJ to lick AB’s vagina, those being separate acts. The prosecution relied on a separate circumstance (being the presence of the other complainant at the time of penetration) as a circumstance of aggravation in relation to both charges of rape with aggravating circumstances. Having regard to the judge’s reasons,[240] it appears that the judge did consider that the circumstances of aggravation in charge 12 comprised the conduct constituting charge 14, and afforded a significant degree of concurrency in the sentence. If the judge fell into error, the respondent submits that no different sentence should be passed and that, absent any error, a greater portion of the sentence on charge 14 ought to have been cumulated on the base sentence.
[240]Reasons, [21].
In oral submissions, the applicant responded that, even if the other complainant’s presence were an act and that act was a circumstance of aggravation, the judge nonetheless relied on the conduct the subject of charge 14 as a circumstance of aggravation in relation to charge 12.
Decision
In his final address, the prosecutor told the jury that charge 12 was concerned with the rape of JJ in aggravating circumstances and that the aggravation the prosecution relied on was not only the fact that the applicant penetrated JJ in the presence of AB but also that he had JJ perform a sexual act on AB at the same time (the sexual act referred to being JJ licking AB’s vagina). In the charge to the jury, the judge told the jury that the aggravating circumstances in relation to charge 12 were that the penetration of JJ occurred in the presence of AB and that, while the penetration occurred, the applicant instructed JJ to lick AB’s vagina.
In the reasons for sentence, the judge identified the aggravating circumstances relevant to charge 12 as being the giving of an instruction to JJ to lick AB’s vagina whilst the applicant was penetrating JJ.[241]
[241]Ibid [21].
Charge 14, which involved procuring an act of gross indecency by JJ was particularised in the indictment as being procuring or inciting JJ to lick AB’s vagina.
It seems clear that the relevant act of aggravation relevant to charge 12 included instructing JJ to lick AB. The mere presence of AB was also relied on as an act of aggravation. In relation to charge 14, the relevant conduct of the applicant was not the physical act that occurred, which was the act of JJ, but rather the encouragement or inducement of that act by the applicant.
The principles that apply when a sentencing court is faced with two charges with overlapping elements were discussed by the High Court in Pearce v The Queen[242] and by this Court in many cases, including R v Sessions.[243] The principles were helpfully summarised by this Court in Hutchison v The Queen.[244]
[242](1998) 194 CLR 610; [1998] HCA 57 (‘Pearce’).
[243][1998] 2 VR 304.
[244](2021) 64 VR 450, 457–60 [34]–[45] (Kyrou, Emerton and Sifris JJA); [2021] VSCA 235.
The issue arises both in the context of conviction and sentence. Although the proposed ground of appeal refers to there being an error on conviction and sentence, as a matter of form, there is no separate ground of appeal relating to the conviction on charge 14. In any event, there is no impediment in principle in treating the facts comprising one offence as aggravating another offence that is committed at the same time. The issue is one of punishment and sentence rather than conviction.
The relevant principle discerned from the cases is that a single act or omission should not give rise to multiple punishments. As the majority observed in Pearce:
[…] the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[245]
[245]Pearce (1998) 194 CLR 610, 623 [40] (McHugh, Hayne and Callinan JJ); [1998] HCA 57.
Where there are common features to two or more charges, the extent to which there is double punishment for the same act or omission will be revealed both by the individual sentences imposed and by the orders for cumulation or concurrency.
Factually, there was a large overlap between the conduct making up the aggravation relevant to charge 12 and the conduct comprising charge 14. However, the two charges were not entirely coincident.
Procuring JJ to lick AB’s vagina was appalling and disgraceful behaviour. It was plainly harmful to both complainants and constituted an independent offence. The conduct also rendered the circumstances in which the rape of JJ seriously and substantially degrading and humiliating. The aggravation of the rape of JJ did not capture the entire criminality of the conduct, nor did the charge of gross indecency. The judge was alive to the risk of double punishment and imposed a moderate amount of cumulation.
I would reject this ground.
Ground 2
The submissions
By this ground, the applicant says the judge erred in finding that the applicant had not ‘had the matter hanging over [his] head’ throughout the period of delay. Delay was not irrelevant just because there was not an inordinate period between charge and sentence.
The applicant argues that, based on the jury’s verdict, the applicant must at least have known he had committed offences in a car traceable to him and that he left his DNA. He did not abscond or create any barrier to the conduct of an investigation such as would prevent him being able to call in aid the fact of delay. Further, delay is an important matter in mitigation independently of the rehabilitation it enabled the applicant to demonstrate.
The respondent submits that the judge correctly took account of the delay between the applicant becoming aware he was under suspicion and the finalisation of the proceeding, and that the proceeding was not conducted in a dilatory manner. Further, there was nothing to suggest that the prospect of the charges was hanging over the applicant’s head prior to February 2020. The respondent says that there is no basis for asserting that the applicant was or would have been aware that DNA samples were taken from the victims, that ‘cold case’ samples were being tested or that a match had been made. The judge correctly took into account the impact of the delay in charging the applicant on his rehabilitation and that he faced imprisonment as an older man.
Decision
The judge’s observation that, during the period of time that elapsed between the commission of the offences in 1987 and the applicant’s contact with police in 2020, the applicant did not have the matter ‘hanging over his head’ was both unremarkable and unimpeachable. There was no basis to conclude that, during this period, the applicant was somehow anxious that his crimes might be detected or was racked with guilt for the commission of the offences. As to the former, it is entirely speculative to submit, as the applicant does, that he may have feared detection because he left DNA evidence at the scene of the crime. As to the latter, the applicant pleaded not guilty to the charges.
The delay between the offending and the charges was not found to be due to any dereliction of duty or inadequate investigation on the part of police; indeed, the judge regarded such a submission to be entirely speculative. The fact that the offending remained uncharged for so long is not a mitigating factor. Indeed, the applicant avoided a period of jail and the opprobrium that would have attached to a timely conviction for a long period of time and was able to lead a life without these matters coming to light.
However, the judge was still required to take into account the fact that the applicant was a man of relatively advanced age when he came to be sentenced. He was facing jail as an older person and this carries with it the potential for difficulty. Undoubtedly, incarceration will account for a significant proportion of the applicant’s remaining years. The judge took these matters into account.
The delay also had the consequential advantage for the applicant that he was able to demonstrate a long period of time of law-abiding behaviour. In the usual course, judges are required to make an assessment as to the prospects of rehabilitation and the risk of future offending. With the long passage of time in this case, the issue was not so much one of prediction but of acknowledging that fact.
Ultimately, there was no specific error in the judge’s treatment of delay.
Ground 3
The submissions
By this ground, the applicant contends that the individual sentences, orders for cumulation, total effective sentence and non-parole period are all manifestly excessive.
The applicant submits that the maximum sentence for the offences of kidnapping and rape with circumstances of aggravation was 20 years’ imprisonment at the time of the offending, which is less than the currently-applicable maximum sentence of 25 years’ imprisonment and qualifies any reliance on contemporary sentencing practice.
The applicant argues that the kidnapping sentences are substantial even relative to sentences imposed pursuant to a 25-year maximum sentence, and that the sentences are close to the highest imposed during the period between 1985 and 1987, referring to statistics and authorities from that period. The sentences for the aggravated rapes are also very substantial by reference to both the current maximum sentence and other sentences imposed when the 20-year maximum applied.
Finally, the applicant submits that it was necessary to avoid double punishment in three respects:
(a)It was necessary not to count the circumstances which led to the conviction of aggravated rape rather than rape simpliciter as additional aggravating circumstances of the offending.
(b)There was considerable overlap between the kidnapping and at least charge 3 (rape with aggravating circumstances) where the withdrawal of consent to be in the vehicle and to having sex arose from the same circumstances, namely the applicant pretending to be a police officer and making threats.
(c)The ‘gain’ relied on in respect of the kidnapping was the sexual gratification obtained from the rapes.
As for the gravity of the offending, the applicant argues that the offending did not constitute a planned kidnapping and rape but rather was opportunistic.
The applicant also relies on the delay between the offending and his sentencing, his demonstrated rehabilitation, the onerousness of imprisonment (given his age, prospect of deportation and the COVID-19 pandemic) and the principle of totality.
The respondent contends that the applicant failed to discharge the burden of establishing manifest excess, having regard to the following:
(a)There is nothing to suggest that the judge had regard to the current maximum penalties when sentencing.
(b)The sentences imposed ranged from 35 to 50 per cent of the relevant maximum penalties and cannot be said to have been wholly outside the available range.
(c)None of the statistics relied on by the applicant were provided to the judge, and only two of the cases referred to were provided to her Honour. Neither of those cases is comparable to the present one. The statistics do not include data that would reveal whether the other cases were comparable. Further, unlike in the historical cases, the judge was required to consider the paramount sentencing principle of community protection in relation to the majority of sexual offences (in relation to charges 10, 11, 12 and 14).
(d)Her Honour correctly factored into the instinctive synthesis the fact that sentences for the offences of which the applicant was convicted were generally somewhat lower at the time of the offending than at present.
(e)The absence of planning as an aggravating feature does not of itself mitigate sentence, especially having regarding to the other circumstances of the offending already noted.
(f)The applicant engaged in serious offending and was not entitled to a sentencing discount applicable to a guilty plea. There was no evidence of remorse and he had been charged with kidnapping and sexual offences of a similar kind about five months before the offending the subject of the charges.
(g)The judge took into account the relevant mitigating factors referred to by the applicant.
(h)The need to avoid double punishment and the principle of totality were reflected in the modest orders for cumulation.
(i)The non-parole period represented 60 per cent of the head sentence and was at the lower end of the usual range.
Decision
The judge’s reasons for sentence are carefully crafted and well considered. Neither of the two specific complaints have been established and it is not otherwise suggested that the judge failed to take into account a relevant consideration or misapplied principle.
In order to make out this ground, which focuses on the outcome of the sentencing process, the applicant must establish that the sentence arrived at (either the individual sentences or the total effective sentence) was wholly outside the available range open to the judge and the sound exercise of the discretion. There are any number of authorities in this Court that emphasise the stringency of the test and the nature of the hurdle that must be overcome in order to succeed on a ground of manifest excess.[246]
[246]For example, Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
The charges were undoubtedly serious. Dealing first with the two charges of rape, at the time of the offending the maximum penalty for rape was 10 years’ imprisonment.[247] However, if the rape occurred in the context of one or more of the aggravating circumstances set out in s 46(1) of the Crimes Act 1958, the maximum penalty was 20 years’ imprisonment.[248]
[247]The offence was an offence at common law but s 45(1) of Crimes Act1958 provided for the maximum penalty.
[248]Crimes Act 1958, s 45(3).
The rapes were aggravated and the jury must have accepted beyond reasonable doubt that the applicant did an act that was likely to seriously and substantially degrade or humiliate AB and JJ. In relation to AB (charge 3), the aggravating feature was requiring JJ to watch the sexual assault of AB. As already discussed, in relation to JJ (charge 12), the aggravating features entailed procuring JJ to lick AB’s vagina as well as the mere presence of AB.
Although it is sometimes said that the absence of aggravating features found in other examples of the offence ought not be treated as a mitigating factor and the convicted person should be sentenced for what he or she has done rather than not done, two points of present significance arise. First, the acts of aggravation are important because, once established, they double the maximum penalty. Second, and relatedly, when assessing the relative gravity of the offending, it is necessary to have regard to other sentences imposed for the aggravated form of rape. In that context, it is relevant to observe that other forms of aggravation include the infliction of serious personal violence and the possession of an offensive weapon. Moreover, the circumstances that might be seriously and substantially degrading and humiliating are likely to be varied and involve a potentially very broad range of conduct, both in terms of form and impact.
It is relevant that the more serious kinds of aggravating features, such as violence and possession of a weapon, found in other cases were not present in this case. It is also important to recognise, as the judge did, that aspects of the aggravating features were also relevant to the other charges and there remained a real risk of double punishment.
It is significant that the victims were young and vulnerable and that the applicant, by posing as a police officer, exploited that vulnerability. That the complainants were engaged in sex work had absolutely no mitigatory effect in relation to the charges; indeed, it provided the context for the exploitation and, as the judge fairly recorded, the complainants were naïve and at the mercy of their would-be customers.
The kidnapping and gross indecency charges were also significant. Recognising that there were two victims and the offending occurred over a period of time meant that the offending could not easily be seen as a single course of conduct and some measure of cumulation was required. Totality was also an important consideration.
As is not uncommon, the delay between the offending and the conviction added greatly to the difficulty of the sentencing task. It affected the relevance of current sentencing practice and it was relevant to take into account the range of sentences that might have been imposed at the time of the commission of the offences for this kind of offending insofar as it engages the principle of equal justice.[249] Having regard to six cases relied on by the applicant on the plea, the judge was not satisfied that the sentencing practice in 1987 would have resulted in a ‘materially lesser sentence’, all things being equal, had he been sentenced at that time.[250]
[249]Stalio v The Queen (2012) 46 VR 426, 440–1 [52]–[54] (Neave, Osborn JJA and King AJA); [2012] VSCA 120.
[250]Reasons, [51].
In my view, the judge understated the difference in sentencing between 1987 and the present. The maximum penalty has increased from 20 to 25 years’ imprisonment and, as this Court noted in DPP v Za Lian, there can be little doubt that sentences for rape (and other forms of serious sexual offending) have increased somewhat in recent years.[251] It is neither possible nor desirable to further quantify the extent of the change, but the increase over time is noticeable.
[251][2019] VSCA 75, [60] (Ferguson CJ, Kaye and Weinberg JJA).
Another aspect of the delay is the long period, exceeding over three decades, during which the applicant has not offended and has made a very valuable contribution in caring for his family. Although protection of the community is undoubtedly an important factor, including by reason of the serious offender provisions of the Sentencing Act 1991,[252] there was little room, if any, for specific deterrence. Although it may have been a factor in 1987 when the applicant was a young man and had recently engaged in the offending (as well as other relevant offending), it was not a factor in 2023 when he came to be sentenced as a 61-year-old man.
[252]Part 2A, especially s 6D.
Denunciation and general deterrence were important factors in sentencing the applicant and the passage of time has not rendered the offences less serious. The charges called for a substantial period of imprisonment. That said, I am of the view that the individual sentences on the aggravated rape charges and the total effective sentence are manifestly excessive. I would grant leave to appeal against sentence, allow the appeal, set aside the sentence and resentence the applicant as follows.
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Kidnapping of AB | 20 years’ imprisonment | 5 years’ imprisonment | 3 months |
| 2 | Kidnapping of JJ | 20 years’ imprisonment | 5 years’ imprisonment | 3 months |
| 3 | Rape of AB with aggravating circumstances | 20 years’ imprisonment | 7 years’ imprisonment | 18 months |
| 5 | Gross indecency with a person under 16 (AB and JJ) | 2 years’ imprisonment | 9 months’ imprisonment | 3 months |
| 10 | Gross indecency with a person under 16 (JJ) | 2 years’ imprisonment | 12 months’ imprisonment | 3 months |
| 11 | Gross indecency with a person under 16 (AB and JJ) | 2 years’ imprisonment | 12 months’ imprisonment | 3 months |
| 12 | Rape of JJ with aggravating circumstances | 20 years’ imprisonment | 8 years’ imprisonment | Base |
| 14 | Gross indecency with a person under 16 (AB and JJ) | 2 years’ imprisonment | 12 months’ imprisonment | 3 months |
| Total Effective Sentence: | 11 years’ imprisonment | |||
| Non-Parole Period: | 7 years | |||
---
0
38
0