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Barry Lane
23 September, 2005  
Judicial directions in sex trials

No wonder there’s been a rise in the number of retrials ordered in Victoria, particularly in sex cases. Barry Lane looks at the black holes into which trial judges can tumble with Longman, Vonarx and Kilby directions. President Maxwell is on the case


imageEarlier this month The Age reported that the new President of the Victorian Court of Appeal, Justice Chris Maxwell, was concerned about the rise in the number of retrials ordered after successful appeals.

Sixty percent of those retrials were ordered in cases involving sexual offences, and the Prez observed that:

“Figures like that are not conducive to confidence in the judicial system…

This issue, this circumstance, is bad for everybody. It’s bad for victims. It’s bad for defendants. It’s bad for everybody because we, the taxpayers, pay for the next retrial and the retrial after that – and people who should be getting their proceedings or their appeals on are waiting.”

Maxwell and County Court Chief Judge Michael Rozenes want to find out why this is happening.

It appears that errors or omissions by judges when directing juries could be a major cause of the problem. And that, speculated the Prez, may be because errant judges had failed to follow relevant authority or perhaps the authority itself was too complicated or unclear.

He ventured that some of those trial judges, from whose directions there had been successful appeals, might say, heaven forbid, that the court of appeal itself could have taken an overly academic view of what was required to be said to a jury or were so long that they sent juries to sleep.

In relation to somnambulant jurors, a recent report of a judicial survey from the US suggested that:

“A 1996 survey of state and federal judges by Vanderbilt Law Professor Nancy King found that 69 percent of the 562 respondents had seen at least one [snoozing juror] in an estimated 2,300 cases during the preceding three years.”

But back to the point.

I suggest that the Prez and Chief Rozenes start their quest with an examination of the continued efficacy of a number of authorities, beginning with the High Court’s decision in Longman v R.

In Longman a High Court majority decided that a complaint of sexual misconduct 20 years after the event warranted a pretty strong warning from a trial judge about accepting the complainant’s evidence.

Indeed, a “full” Longman warning requires a trial judge to tell the jury that:

”[As] the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.” (My emphasis.)

The High Court was considering two aspects of the evidence in the case – delay in complaint and corroboration, both of which have been subsequently addressed by parliaments in Victoria and elsewhere, see s.61(1)(a) and (b) of the Crimes Act, 1958 for the local version.

Unfortunately for trial judges it seems that those amendments have only made matters worse because apart from the usual problems of trying to work out if a Longman warning is necessary in the circumstances of a particular case and, if so, whether it should be “full” (that is “dangerous to convict”) or “partial” and what evidence it should relate to, judges now have the added burden of dealing with the requirements of s.61 and the dichotomy between “directions”, “warnings” and “comments”.

Juries are required to obey directions and warnings, which are to be given with the full authority of the judge’s office, but they are entitled to ignore “comments” made by a judge, if they so desire.

The various complexities, uncertainties and distractions were teased out at some length by justice of appeal Ormiston in R v Mazzolini, where the majority of the court (Phillips CJ and Ormiston) considered that the trial judge’s “partial” Longman warning in relation to a three year old complaint passed muster, but Justice Callaway thought that it wasn’t up to snuff.

The issue was recently considered by the court of appeal (Winneke P, Byrne and Osborn AJJA) in R v K J, where a new trial was ordered because there was a perception that the trial judge’s Longman warning was fragmented and not “full” enough.

On the same day as judgment in K J was given, the court (Winneke P, Byrne and Osborn AJJA) delivering judgment in R v B J C held that a “full” Longman warning wasn’t required in the circumstances of that case.

imageIf the Prez (seen here) and Chief Rozenes have not yet contracted migraines looking at Longman issues, they might like to take a peek at some of the difficulties emanating from that hornets’ nest of rules in relation to “propensity”, “relationship” or “uncharged acts” evidence, identified by the Court of Appeal (Winneke P, Callaway JA and Southwell AJA) in R v Vonarx (1999) 3 VR 618. Vonarx was decided in 1995 but not reported until 1999.

Again, there has been interference by the parliament with the enactment of s.398A of the Crimes Act, 1958.

That provision sought to ease the restrictions built up over time to quarantine an accused from relevant prejudicial evidence which might assist a tribunal of fact in deciding whether the accused had committed the offence charged. However, s.398A has only served to further complicate life for trial judges.

R v B A H (No2) is a recent example of how a trial judge got a “propensity” warning wrong. The court of appeal (Warren CJ, Maxwell P and Harper AJA) allowed the appeal against conviction and ordered a new trial. If the DPP decides to re-present the accused, it will be the fourth trial for the accused and his complainant daughter.

Perhaps this is the case that launched the Prez on his search for enlightenment.

Finally, if the learned judges’ neurons are still sparking they might turn their attention to the question of when and, if so, what is an appropriate Kilby warning in the context of s.61 of the Crimes Act. Kilby warnings also relate to delay in complaint.

It can be seen from some of these cases that appeal court judges say that they are not in the business of laying down appropriate models for any particular direction, warning or comment. For instance, in the court of appeal (Phillips CJ, Callaway JA and Smith AJA) decision in R v Grech (1997) 2 VR 609, Callaway said in relation to an “uncharged acts” case:

“In my opinion the jury should have been told that:

(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it –

(i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and

(ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

The foregoing summary is not intended as a model direction but as a guide to the substance of what was required in this case.” (My emphasis.)

Subsequent cases reveal however, that this “guide” (not to be confused with a “direction”, “warning” or “comment”) has assumed the status of a parliamentary enactment.

Nor do the judges definitively spell out the difference between a “direction”, “warning” and a “comment”. These are things that each trial judge has to determine in the light of the circumstances of each particular case, bearing in mind that a lot of these cases will require bits and pieces of each of Longman, Vonarx and Kilby.

And there’s the rub for the new Prez. As long as the superior courts conduct these ex-post facto assessments examining what a trial judge has or hasn’t said in excruciating detail, the court of appeal can look forward to heaps more work in sex cases speculating about what juries might or might not have understood by trial judges’ “directions”, “warnings” or “comments”.

Perhaps the real cause of the problem might be the judicial system’s (mostly blokes) rearguard efforts to undermine a modest statutory rebalancing of the forensic tension between complainants (mostly women and kids) and accused persons (mostly blokes). But that is purely my conjecture.

The Prez is reported as saying that although “he has never looked a jury in the eye”, he is a fast learner. If things don’t change in the near future the only certain thing in this area of the law is that President Maxwell will have plenty of cases upon which to base his learning.