Christophers v The Queen

[2003] WASCA 214

CHRISTOPHERS -v- THE QUEEN [2003] WASCA 214

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 214
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:208/2002	Heard:	19 JUNE 2003
Coram:	MURRAY J HASLUCK J ROBERTS-SMITH J	Delivered:	12/09/03
No of pages:	36	Judgment Part:	1 of 1
Result:	Application for leave to appeal against conviction dismissed
Category:	B
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Parties:	RAYMOND FRANCIS CHRISTOPHERS THE QUEEN
Catchwords:	Criminal law and procedure Sexual offences Evidence of complainant uncorroborated Longman direction Adequacy of direction concerning child's remembrance of incidents occurring many years ago Adequacy of direction on the issue of repressed memory Whether sufficient direction concerning delay in making a complaint Sufficiency of evidence to support convictions Turns on own facts
Legislation:	Criminal Code, s 689(1) Evidence Act 1906, s 36BD
Case References:	Allegretta v The Queen [2003] WASCA 17 Christophers v The Queen (2000) 23 WAR 106 Christophers v The Queen [2000] 23 WAR 106 Crisafio v The Queen [2003] WASCA 104 Crofts v The Queen (1996) 186 CLR 427 Doggett v The Queen (2001) 208 CLR 343 Festa v The Queen (2001) 208 CLR 593 Hyatt (1998) 101 A Crim R 83 Jones v The Queen (1997) 191 CLR 439 Kailis v The Queen (1999) 21 WAR 100 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 Mraz v The Queen (1955) 93 CLR 493 R v BWT (2002) 54 NSWLR 241 R v Grakalic (2002) 130 A Crim R 219 R v Hyatt [1998] 4 VR 182 R v Miletic [1997] 1 VR 593 Stalker v The Queen [2003] WASCA 132 R v Jenkyns (1993) 32 NSWLR 712 R v K (1999) 107 A Crim R 195 R v McEndoo (1980) 5 A Crim R 52 R v McFelin [1985] 2 NZLR 750

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : CHRISTOPHERS -v- THE QUEEN [2003] WASCA 214 CORAM : MURRAY J

HASLUCK J
ROBERTS-SMITH J

HEARD : 19 JUNE 2003 DELIVERED : 12 SEPTEMBER 2003 FILE NO/S : CCA 208 of 2002 BETWEEN : RAYMOND FRANCIS CHRISTOPHERS

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sexual offences - Evidence of complainant uncorroborated - Longman direction - Adequacy of direction concerning child's remembrance of incidents occurring many years ago - Adequacy of direction on the issue of repressed memory - Whether sufficient direction concerning delay in making a complaint - Sufficiency of evidence to support convictions - Turns on own facts

Legislation:

Criminal Code, s 689(1)

Evidence Act 1906, s 36BD

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Result:

Application for leave to appeal against conviction dismissed

Category: B

Representation:

Counsel:

Applicant : Mr R D Young
Respondent : Mr R E Cock QC

Solicitors:

Applicant : Gunning Young
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Allegretta v The Queen [2003] WASCA 17
Christophers v The Queen (2000) 23 WAR 106
Crisafio v The Queen [2003] WASCA 104
Crofts v The Queen (1996) 186 CLR 427
Doggett v The Queen (2001) 208 CLR 343
Festa v The Queen (2001) 208 CLR 593
Hyatt (1998) 101 A Crim R 83
Jones v The Queen (1997) 191 CLR 439
Kailis v The Queen (1999) 21 WAR 100
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Mraz v The Queen (1955) 93 CLR 493
R v BWT (2002) 54 NSWLR 241
R v Grakalic (2002) 130 A Crim R 219
R v Hyatt [1998] 4 VR 182
R v Miletic [1997] 1 VR 593
Stalker v The Queen [2003] WASCA 132




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Case(s) also cited:

R v Jenkyns (1993) 32 NSWLR 712
R v K (1999) 107 A Crim R 195
R v McEndoo (1980) 5 A Crim R 52
R v McFelin [1985] 2 NZLR 750

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1 MURRAY J: I am in entire agreement with the comprehensive reasons of Hasluck J. I have nothing to add but my agreement that leave to appeal should be refused.

2 HASLUCK J: The applicant was convicted by a jury in the Supreme Court at Perth on 30 October 2002 of 1 count of carnal knowledge and 3 counts of indecent dealing with a girl under the age of 13 years. He now seeks leave to appeal upon the four grounds set out in an amended notice of appeal dated 10 June 2003. I note in passing that at the hearing of the appeal leave to amend the previous notice of appeal was granted so as to add grounds 3 and 4 to the grounds of appeal.

3 In order to understand the issues raised by the grounds of appeal it is necessary to look not only at the circumstances underlying the relevant charges but also at the lengthy procedural history of this matter.

Background

4 The events giving rise to the relevant charges were alleged to have occurred in 1976. At that time the applicant was about 40 years of age and the female complainant was 10 years of age. She was living with her mother and sisters in suburban Adelaide.

5 The Crown case was that the applicant befriended the complainant's family and sexually abused the complainant on a number of occasions while they lived in Adelaide. The complainant gave evidence that this occurred primarily at drive-in cinemas while she was there with the applicant and her sisters. Her allegations in that regard were not the subject of a count in the indictment but were adduced as evidence going to a relationship between the parties.

6 In mid-1976 the applicant had in mind to move to Perth and began making arrangements to that end. He advertised for two other adults to accompany him to share the costs and the driving of the vehicle in which a journey to Perth was to be made. Two travellers from New Zealand responded and, as there was a spare seat in the vehicle, the Crown case was that the applicant suggested to the complainant's mother that one of her three daughters might like to accompany him to Perth by way of a holiday.

7 The applicant and the others in the vehicle including the young female complainant drove from Adelaide to Perth spending two nights at hotels along the way. The complainant later alleged that she was sexually

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abused at a motel on the Nullarbor Plain, at a hotel near Fremantle, and at the house of the applicant's brother in Coolbellup.

8 The Crown case at trial was that the applicant's and his brother's family then drove to Broome for a holiday, with the complainant as a member of the group. The applicant and the complainant stayed at a house in Broome belonging to a relative of the applicant. The complainant alleged that she was sexually abused at the premises in question. In due course, as a consequence of the complainant contracting chicken pox, the applicant arranged an airline flight for the complainant so she could return to Adelaide.

9 The Crown case was that shortly after she returned to Adelaide the complainant told her younger sister, who at that time was seven years of age, about the applicant's conduct. The evidence at trial included reference to the complainant speaking to a young friend about what had occurred. It seems that the applicant visited the complainant's house on a couple of occasions in the months following her return to Adelaide from Perth but that marked the end of the relationship between he and the complainant's family.

Procedural matters

10 The applicant was first brought to trial in the District Court in March 1999, being charged with 10 counts of sexual offences against the complainant. The jury returned verdicts of guilty on each count, other than count 4. At that time he was sentenced to 6 years' imprisonment with parole. An appeal against conviction was subsequently allowed by the Court of Criminal Appeal in October 2000 as appears from Christophers v The Queen (2000) 23 WAR 106.

11 The successful appeal led to the applicant being tried again before the District Court in May 2002. On that occasion, he was acquitted of the 3 counts relating to events said to have occurred while travelling across the Nullarbor. The jury were unable to reach a verdict on the remaining 7 counts.

12 The next trial was held in the Supreme Court on which occasion the applicant faced 9 counts of sexual offences against the complainant. The Crown had added two more offences based on the complainant's evidence at the second trial in the District Court.

13 In relation to the first 2 counts, the jury were directed to return verdicts of acquittal by Scott J. The applicant was then convicted of

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counts 3 to 6 inclusive, being the counts relating to an alleged sexual abuse at a hotel near Fremantle and at the house of his brother in Coolbellup. He was acquitted of counts 7, 8 and 9 in respect of offences alleged to have been committed in Broome.

14 Having regard to the fact that the applicant had spent 19 months in custody before his first appeal against conviction was allowed, the learned trial Judge held that, effectively, the applicant had served the equivalent of a sentence of about 5 years' imprisonment. It was therefore inappropriate for the applicant to serve any further time in custody. Accordingly, the applicant was fined $5,000.

The first ground of appeal

15 The trial at the Supreme Court I have just described commenced on 28 October 2002 and concluded on 30 October 2002. The applicant was convicted of 1 count of carnal knowledge and 3 counts of indecent dealing with a girl under 13 years of age. The applicant seeks leave to appeal against those convictions.

16 The first ground of appeal is as follows:

"The learned trial Judge erred in that when directing the jury as to credibility, His Honour commented that it would not be reasonable to expect a person remembering incidents which occurred many years ago when they were a child to have a good recollection as to detail."

17 His Honour the presiding Judge clearly recognised that owing to the passage of time since the offences were alleged to have been committed, it was necessary to give a Longman direction, that is to say, a direction conforming to the requirements described by the High Court in Longman v The Queen (1989) 168 CLR 79.

18 In addressing the issues raised by the first ground of appeal and the question of whether the directions given to the jury were sufficient, it will be useful to begin by turning to the words used by his Honour.

19 His Honour said (at appeal book page 214):

"Let me start off with the matters in this way: I'm sure that you will realise that the evidence of the complainant in this case, [the complainant], is vital. The complainant's evidence is critical to the prosecution case and no doubt you will give

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particular attention to it but you should bear in mind that the incidents alleged in the indictment occurred something like 26 years ago and you should in assessing the complainant's evidence bear in mind not only that these matters occurred a very long time ago but also that these incidents occurred at a time when the complainant was a very young child. I think she says that she was aged 10.

You would all know from your own experiences that the passage of time makes events more difficult to recall. You will no doubt be aware that time, particularly this length of time, makes the memory less accurate and it's difficult to recall with any degree of particularity incidents that may have occurred so long ago. For that reason, the longer the time that elapses, the greater the possibility of error."

20 At a later stage he added (at appeal book page 226):

"I finally remind you as to [the complainant's] evidence that these incidents are said to have occurred at a time when she was 10 years old and some 26 years ago. I am sure you would understand the difficulty of somebody after 26 years trying to recall in detail incidents that occurred so long ago and as well at a time when the witness was so young. You only have to think back to your own recollection about incidents that occurred in your lives when each of you were 10 to understand what I am saying to you.

How accurate her memory is likely to be of incidents occurring so much earlier is a matter for you to consider but please do not lose sight of the fact that the onus of proof remains on the crown to establish each charge on the indictment and each element of each charge beyond reasonable doubt."

21 Counsel for the applicant contended on appeal that having given the required Longman direction initially, the effect of the later observations made by the learned trial Judge was to dilute the effect of the earlier instruction. In other words, on the one hand, the learned trial Judge directed the jury that the complainant's evidence had to be scrutinised with great care because the passage of time renders evidence of that kind prone to error. However, on the other hand, he intimated that it would be unrealistic to expect a person to give detailed consistent evidence after a passage of the considerable period of time.
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22 Counsel submitted that the danger with the latter direction was that it had the tendency to lead the jury to conclude that the inconsistencies relied upon by the defence were to be expected in a case of this type and were therefore of little consequence. As was pointed out in R v Hyatt [1998] 4 VR 182, and in Longman itself, the direction is not designed to achieve a balance between the Crown and defence case. Where there has been a long delay in bringing the matter to trial, the direction needs to be emphatic. The long delay typically means that the defence can offer little more than a bare denial to the allegations. The credibility of the allegations can therefore only be tested by reference to surrounding circumstances, and if that evidence contains inconsistencies, the accused is entitled to challenge the credibility of the complainant in regard to the areas of inconsistency. It is therefore important that the weight to be attached to inconsistencies within a complainant's evidence should not be diminished by a direction which has the effect of suggesting that inconsistencies are to be expected.

23 Counsel for the respondent submitted that the directions complained of were not likely to have had the effect attributed to them by counsel for the applicant. It was appropriate for the learned trial Judge to put the complainant's evidence into context. The applicant had no cause to complain about such directions, especially when considered in light of the summing up as a whole. The learned trial Judge went through the discrepancies and inconsistencies in the complainant's evidence with a view to having the jury assess the reliability of that evidence having regard to certain specific matters.

Decided cases

24 In reviewing the submissions made by the parties, it will be useful at this point to revisit the legal principles reflected in the previously decided cases. Brennan, Dawson and Toohey JJ made these observations in Longman (supra) at 91:

"The jury should have been told 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, scrutinizing 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. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of

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the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."

25 It emerges from this passage that, in circumstances where a substantial period of time has elapsed, the jury should be told to scrutinise the evidence with great care before relying upon it because the defence has been incapacitated from adequately testing the complainant's evidence. However, it is important to keep in mind what was said by Kirby J in Doggett v The Queen (2001) 208 CLR 343 at par 120 concerning a related risk that the memory even of an honest witness might become contaminated. His observations were to this effect:

"There were certain differences in the reasoning in Longman as to precisely why a warning was necessary, notwithstanding the statutory relief from the obligation to give the warning formerly required by the common law and judicial practice. Yet one common element informed both the joint reasons of Brennan, Dawson and Toohey JJ and the separate reasons of Deane J and McHugh J. This was a recognition of the serious forensic disadvantages suffered by an accused person in a criminal trial in meeting, for the first time, accusations made long after the subject offences were alleged to have occurred. In their separate reasons, Deane J and McHugh J added a reference to a second and related danger, namely the risk that, after such an interval of time, the memory even of an honest witness might become contaminated. A lengthy lapse of time could therefore make acceptance of a witness's testimony dangerous. It was such as to require particular scrutiny and the need for external confirmation of what the witness said."

26 In the Supreme Court of Western Australia in Christophers (supra) Owen J said this at 117:

"In my view a number of propositions can be extracted from the judgments in Longman and the discussion about Longman in other cases:

1. The 'Longman direction' is a rule of practice that applies notwithstanding the enactment of s 36BE (now s 50) of the Evidence Act 1906.

2. It is not a conventional corroboration warning.

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3. It is borne out of the circumstances of the particular case and not from some general appreciation of the position of particular classes of witnesses or classes of offences.

4. It arises because of the overriding obligation of a trial judge to ensure that there is a fair trial and avoid a perceptible risk of miscarriage of justice occurring, again because of the circumstances of the particular case.

5. The warning is concerned both with the reliability and the veracity of the testimony given by the witness.

6. There is no prescribed or ritualistic formulation in which the warning is to be delivered: see James v The Queen [2000] WASCA 100 at [23]. It must be tailored to the features of the case that have dictated that it be given. This is not surprising given that it arises from the circumstances of the particular case.

7. It is important that the trial judge point out to the jury the particular features of the evidence that might have an impact on the reliability of the impugned testimony and the difficulties that this has, or may have, caused for the presentation of the defence.

8. Although the word 'dangerous' is used from time to time in the judgments in Longman, the adequacy of the warning in any particular case is not necessarily sensitive to whether that phrase was uttered: Gaulard v The Queen [2000] WASCA 218 at [14]. What must be brought home to the jury is that they need to be 'persuaded of the truth and accuracy of the evidence before they may place reliance on it': see James at [22]. In this context, 'truth and accuracy' equates to reliability."

27 Since that time issues of the kind adverted to in Longman (supra) and related cases have come under notice in three recent decisions of the Court of Criminal Appeal, namely, Allegretta v The Queen [2003] WASCA 17, Crisafio v The Queen [2003] WASCA 104 and Stalker v The Queen [2003] WASCA 132. The eight propositions enunciated by Owen J are generally consistent with the reasoning in these three cases and the propositions were expressly cited with approval in Crisafio and Stalker.
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28 I note in passing that in Allegretta (supra), Roberts-Smith J, as the author of the leading judgment, addressed the question of what constitutes the appropriate test on appeal for determining whether a verdict is unsafe or unsatisfactory. Having regard to what was said in M v The Queen (1994) 181 CLR 487 at 493 and in Jones v The Queen (1997) 191 CLR 439, he concluded that the test is whether the Court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

29 Recent decisions of the High Court suggest that the proviso to s 689(1) of the Criminal Code, whereby an appeal may be dismissed if it is thought no substantial miscarriage of justice has actually occurred, recognises that not every departure from the proper application of the law warrants setting aside a conviction. A court of criminal appeal must conclude that the evidence properly before the jury would, if the jury had been properly instructed, have inevitably required the jury, acting reasonably, to return a guilty verdict: Festa v The Queen (2001) 208 CLR 593 at pars 111, 119, 224, 226 and 228. Also see R v Grakalic (2002) 130 A Crim R 219 at par 60.

Conclusion as to the first ground of appeal

30 The applicant contends that the learned trial Judge erred in that when directing the jury as to credibility, his Honour commented that it would not be reasonable to expect a person remembering incidents which occurred many years ago when they were a child to have a good recollection as to detail. Counsel for the applicant seemed to accept that the direction given by his Honour initially conformed to the requirements of Longman (supra) and was therefore sufficient. Counsel's criticism of what occurred at the trial was directed principally to the additional remarks made by his Honour which were said to have diluted the effect of the earlier instruction.

31 The additional direction was open to the interpretation, counsel contended, that it would be unrealistic to expect a young female complainant to give detailed and consistent evidence after the passage of a considerable period of time. To my mind, the submission made on behalf of the applicant on appeal presents a slightly exaggerated picture of what

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was said. The learned trial Judge made it quite clear initially, consistently with the requirements of a Longman direction as described by Owen J in Christophers (supra), that the jury should scrutinise the complainant's evidence with great care after the passage of so many years before deciding that they could rely upon it. I am not persuaded that what his Honour said subsequently can be regarded as a contradiction or significant dilution of what he said initially. His warning was properly directed to the reliability and the veracity of the complainant's testimony. Certainly, he made it clear that the complainant's credibility was a matter for the jury to assess.

32 As to the issue raised by the first ground of appeal, unlike the issues raised in the three cases recently decided by the Court of Criminal Appeal, counsel for the applicant does not contend that the learned trial Judge failed to deal with the particularity of alleged discrepancies or inconsistencies in the complainant's evidence. It is simply said that the learned trial Judge's subsequent observations about the passage of time may have introduced a degree of confusion when contrasted with what he had said earlier. However, in my view, the theme being unfolded to the jury was essentially the same on both occasions, namely, that the evidence of the complainant had to be scrutinised with care.

33 I am not persuaded as to this ground of appeal that the verdict was unsafe or unsatisfactory because it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty. Accordingly, I am not persuaded that the appeal should be upheld upon this ground. Put shortly, in my view, the way in which the first ground of appeal was formulated does not accurately reflect the learned trial Judge's summing up to the jury in regard to the passage of time and the effect upon memory.

The second ground of appeal

34 The second ground of appeal was as follows:

"The learned trial Judge erred in failing to direct the jury adequately as to the issue of repressed memory

PARTICULARS

(i) The issue of repressed memory had become relevant by reason of evidence given by the complainant at a previous trial.

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(ii) Although the complainant maintained that she had not recovered a repressed memory, the matter was nonetheless one in which it was open for the jury to consider whether there was a reasonable possibility that she had done so

(iii) In those circumstances, there should have been a direction to the effect that if the jury thought that there was a reasonable possibility that the complainant had recovered a repressed memory, then they would have to exercise great caution in assessing her evidence as the memories themselves may be false"

35 In order to understand the issues raised by this ground of appeal it is necessary to recall that when the appellant stood trial in March 1999, the complainant gave evidence under cross-examination to the effect that she had been hypnotised to recover things that had been blocked out of her memory. Her evidence in that regard was revised to some extent in re-examination. The Court of Criminal Appeal in its judgment of 20 October 2000, Christophers v The Queen (supra), held that the jury should have been warned by the trial Judge as to the dangers of acting upon the complainant's evidence in light of what she said about recovered memory.

36 In the trial the subject of this appeal, the complainant was asked about these matters. She acknowledged that she had said at her first trial that she had undergone hypnosis to recover what she had blocked out of her memory, but explained that in giving evidence to that effect she had made a mistake. She had been confused or stressed and had in fact never undergone hypnosis. The core of her evidence in that regard (Appeal Book page 46) was as follows:

"Yes, okay. You have some knowledge about repressed memories, don’t' you? --- Yes.

You know, don't you, that in the course of treatment and counselling and things like that people have been know to recover memories of abuse that are false? --- Yes. This is not the case with me.

Okay, but you understand that as a concept, don't you? --- Yes, I do.

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I suggest to you that what you said previously when you said that you have gone under hypnosis to recover what you have blocked out of your memory was true? --- No.

You said that under oath and it was true. Isn't that correct? --- I've said that under oath. I made a mistake in my answer.

I suggest that you are now trying to deny it because you know that if you admit to having recovered repressed memories, it would damage your case, don't you? --- I've never been hypnotised. I've never had anybody pull out memories that have faded away. I've always had the memories there. All I did was block them out with alcohol and drug abuse. I needed to deal with that problem. I needed to deal with the problems that were causing the problems.

So you simply say that you were mistaken when you gave these answers about going into therapy and having hypnosis to recover things you have blocked out of your mind? --- Yes."

37 I indicated in earlier discussion that his Honour gave certain directions concerning the effect upon memory of the passage of time. Immediately following the first set of observations on that matter, his Honour proceeded to make certain observations about the matters the subject of the second ground of appeal. He said this (at Appeal Book page 214):

"In addition to that you should take into account that in this case some of the recollections are said to have been recovered from the complainant's memory, although I think the way the complainant puts it, and perhaps this is important for you to consider - I think what she says, and it's a matter for you, is that the memories were always there. She says that she blocked them out with alcohol and drugs and so the effect of the alcohol and the drugs meant that the memories were no longer present in her mind, but I think her evidence was that in fact the memories were always there so that when she recovered from the alcohol and when she recovered from the drugs, the memories were always there in her mind.

It's not as if, as counsel has suggested to you on her evidence here, that she had obliterated memories entirely. I think effectively what she was saying to you, and it's a matter for you

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as are all matters of fact, that the memories - that she was using alcohol and that she was using drugs so that these things were not in the forefront of her mind all the time. It's very much a matter for you."

38 His Honour went on to emphasise that the question of whether the complainant's memory was intact or distorted to some degree as a consequence of imagination or prejudice arising out of traumatic events in childhood was entirely a matter for the jury. He observed further that apart from the complainant's evidence there was no direct independent evidence upon which the accused could be convicted.

39 After the jury had retired initially there was some debate before his Honour as to the effect of the ruling made by the Court of Criminal Appeal in Christophers (supra) in the course of which his Honour observed that a slightly different situation had now arisen because the complainant, on the former occasion, had agreed that she did have repressed memories and that these were recovered memories. It was in the latter context that the Court of Criminal Appeal held that the trial Judge should have warned the jury of a special need for caution. At the present trial she had said her evidence was not a case of recovered memories. The memories had been there throughout, albeit not at the forefront of her mind.

40 Nonetheless, the learned trial Judge was eventually persuaded to recall the jury and to provide them with further directions as follows (at Appeal Book page 238):

"Both counsel have asked me to do it so it's common ground between them. That is this: you heard evidence from the complainant [the complainant] about all the counselling that she had received over the years.

You will recall right from the time that she was a young child I think when the family had problems, going through the years, including the alcohol and drug counselling and all the other forms of counselling that she had; including the evidence that you heard from the two people who gave evidence via video-link as to the counselling to which she was subjected.

The point that I should have made and I didn't make is this: you can take into account by all means the fact that that counselling over all those years and those sessions with the counsellors may have had the effect of tainting what would otherwise be a true

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recollection. These ongoing discussions and what might have been put as the suggestions of the counsellors and so on and the development and embellishment of what may have been accurate recollections at one time, through the counselling process, have become tainted or distorted and assume a significance greater than the memory itself would be if that was left alone.

So the question of the distortion that may arise from the counselling process, if that be the case, is a matter to which you can properly look bearing in mind what you know of the evidence about the number of counsellors that the complainant had and the years over which that counselling occurred.

You can look at that as well in the context of the different statements that have been made by the complainant right from the time when she first made statements to the police through to her evidence to the time that you come to trial and see whether that affects your assessment of her credibility; that these counselling sessions, that these matters that arose out of her discussions with counsellors, may have in some way distorted or thrown out of line what is fact the true recollection about the incidents in relation to which she was testifying before you. Now, is that sufficient for your purposes?"

41 Counsel for the applicant submitted on the hearing of this appeal that the issue the jury's attention should have been directed to so far as repressed memory was concerned was not simply that the accuracy of the memory could have been effected by counselling and therapy, but that the memory itself could have been implanted and may not have been a genuine memory. The case for the applicant was not necessarily that the allegations were fabricated. It was also that the complainant may well have had a genuine belief in the reality of the sexual abuse.

42 Counsel for the applicant acknowledged that this was not a case where the trial Judge was obliged to give a specific warning as to the dangers of relying on hypnotically induced evidence. However, a direction should have warned or reminded members of the jury that they needed to consider whether they could discount the possibility that the complainant's history of counselling may have created a memory of events that did not in fact occur. Further, they should have been told that the complainant's history of counselling may have affected the accuracy and reliability of her recollection and that her history of substance abuse

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may have affected the accuracy and reliability of her evidence. Counsel contended that the learned trial Judge only directed the jury as to the accuracy and reliability of her recollection. No direction was given drawing the jury's attention to alcohol and drug abuse, other than in the context of explaining to the jury that the complainant kept the memories away from the forefront of her mind by substance abuse.

43 On the other hand, counsel for the respondent reminded the Court on the hearing of the appeal that the effect of the debate in the absence of the jury was to give rise to a redirection in a form that was thought to be appropriate by defence counsel at the time. Indeed, defence counsel had declared in the presence of the jury that the redirection was sufficient. In such circumstances it could not be persuasively argued on appeal that the original direction and the redirection concerning the repressed and recovered memory issues gave rise to a substantial miscarriage of justice.

Conclusion as to second ground of appeal

44 It will be apparent from my review of the decided cases that the Longman warning is concerned both with the reliability and the veracity of the testimony given by the witness. As Kirby J observed in Doggett (supra), the Longman warning is directed not only to the disadvantages suffered by an accused in dealing with accusations made long after the events were alleged to have occurred but also to the risk that the memory even of an honest witness might become contaminated.

45 This ground of appeal is directed principally to the risk of contamination issue in the context of a case in which it was common ground at the hearing of the appeal that the female complainant, while under cross-examination, had given evidence concerning a history of counselling with some acknowledgement that at an earlier trial she had been questioned about hypnosis and repressed memory. However, it is questionable whether the evidence given by the complainant was to the effect that she had attempted to regain a lost memory.

46 In the course of a debate about this matter in the absence of the jury, the learned trial Judge correctly observed that, notwithstanding cross-examination about these matters, the stance adopted by the female complainant was essentially that she had been confused, and thus mistaken, when answering questions about these matters at an earlier trial. On the complainant's evidence, the true position was that she had never lost the memory of what occurred or sought to retrieve memories about

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what occurred. They remained in her mind, albeit not at the forefront of her mind.

47 It would arguably have been open to his Honour to have refused the request for a redirection upon the basis he put to counsel initially, that is to say, that the issue of recovered memories was not truly before the jury. However, in the end, as a counsel of caution, and after a full consultation with counsel, he was persuaded to give a redirection about the possibility of "the distortion that may arise from the counselling process". Defence counsel was then asked whether that was sufficient and no objection was taken to the nature of the observations made to the jury. In these circumstances, I consider that any imperfection in the original direction was sufficiently removed by the observations made in the course of the redirection with the result that a miscarriage of justice has not been disclosed.

The third ground of appeal

48 The third ground of appeal was as follows:

"The learned trial Judge erred in that he commented on the facts in such a way as to suggest to the jury that he had formed a view of the evidence concerning the issue of repressed memory that would have led the jury to discount the possibility that the complainant may have recovered a repressed memory that was not genuine."

49 The issue raised by this ground of appeal is related to the issues reflected in the preceding ground of appeal.

50 Counsel for the applicant submitted that in his original direction concerning the issue of repressed memory the learned trial Judge had understated the potential significance of the evidence of repressed memory. Defence counsel had not been suggesting that the complainant had obliterated memories entirely but rather that there were no memories to be obliterated. The jury was being invited by defence counsel to consider the possibility that there was no event to be remembered, that is to say, the so-called memory had been created by way of a suggestion put to the complainant in the course of counselling that, in effect, childhood sexual abuse was the root of the problems she was experiencing as an adult. This suggestion may have led her to believe implicitly that childhood sexual abuse had in fact happened. Whilst the complainant denied assertions of this kind, the jury was not bound to accept her

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evidence. The jury was entitled to have regard to the evidence she agreed she gave previously and to conclude that her evidence that she was mistaken or confused was simply not credible.

51 Counsel for the applicant submitted that the jury were likely to take from the directions given by the learned trial Judge that he had formed a view that the complainant had not recovered a repressed memory in the sense that defence counsel urged. In fact, the learned trial Judge went so far as to contradict the submission by defence counsel that the jury could not exclude the possibility that she had "obliterated memories entirely". The jury were then likely to have accepted that view and discounted the possibility of repressed memory because the trial Judge had effectively told them it was not a repressed memory case. Nowhere in the direction was the concept of repressed memory explained in the sense that a false memory can be implanted during counselling or under hypnosis and then believed by the counselled person.

52 It was said further by counsel for the applicant on this point that the redirection did not go far enough. The redirection dealt with the possibility of recollections being distorted but did not address the primary issue from the defence point of view which was that the memories themselves may have been created or implanted whether under hypnosis or in the course of counselling. Nor did the redirection warn the jury of the effect that alcohol and drug abuse might have had on the complainant's memory. Put shortly, counsel for the applicant contended that the issue which lay at the heart of the repressed memory controversy, namely, the actual creation of "memories", was likely to have been discounted by the jury as a result of the learned trial Judge's comments.

53 My response to this ground of appeal draws upon the considerations I set out with respect to the preceding ground of appeal. I am of the view that the so-called issue of recovery of a repressed memory was only before the jury in an ancillary or incidental manner, being a matter raised with the complainant during the course of cross-examination, but promptly denied by her. Any likelihood that the jury may have failed to scrutinise the testimony of the female complainant with sufficient rigour was removed by the redirection. I am not persuaded that there was anything in the original direction or in the redirection which could be construed as suggesting to the jury that the learned trial Judge had formed a view about the evidence which might encourage or lead the jury to discount the possibility that the evidence of the complainant was not genuine or unreliable because the evidence was based upon memories of dubious provenance.

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54 Accordingly, I do not consider that leave to appeal against the conviction should be allowed on this ground.

The fourth ground of appeal

55 The fourth ground of appeal was as follows:

"The learned trial Judge erred in that, when directing the jury that the complainant may have good reasons for the delay in making a complaint, that direction was not balanced by a direction that the jury could nonetheless take the delay in to account when assessing the complainants credibility."

56 The issue raised by this ground of appeal requires that consideration be given to s 36BD of the Evidence Act 1906. The effect of that provision is that where on the trial of a person for a sexual offence evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the Judge will give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false. The trial Judge is also required to inform the jury that there may be good reason why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.

57 In the course of his summing up, the learned trial Judge referred to evidence that the complainant had complained to her younger sister after her return to Adelaide from Western Australia. He referred also to the complainant's evidence that her mother found out at a latter stage. His Honour then made these observations (at Appeal Book page 216):

"The complaint in this case was made a considerable time after the events the subject of the charges. That evidence may be taken into account by you in considering the consistency and therefore the credibility of the complainant, [the complainant]. It constitutes what is called a buttress to her evidence but of course it isn't necessarily true. The fact that she has said something to her sister doesn't mean that that event occurred in the manner in which she complained to her sister. It's simply a matter which you can and you should take into account in considering the consistency and therefore the credibility of what the complainant has said.

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If you find that the complaint was not made at the first reasonable opportunity, I must also direct you that delay in complaining or a failure to complain does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of such offence as alleged here in all of these circumstances may hesitate in making or even refrain from making a complaint of that offence.

Indeed, as I pointed out to you, the complainant says that she was ashamed of what happened to her, you will recall her evidence to you in that regard, and so they're matters that you can properly take into account. The evidence of [the complainant's] complaint goes only to the issue of her credibility as a witness and cannot be used by you to evaluate the truth of what she then said if you find that in fact she said it."

58 Counsel for the applicant submitted that the timing of the complaint made by the complainant was far from clear. It was clear that she had not gone to the police until 1996, but the evidence as to when she had told other people differed as between the prosecution witnesses. The complainant's evidence was that she had first told her friend R, who had since died, and that she had told her younger sister. The complainant could not be exact as to when she had told her sister, but conceded that it could have been about 18 months after she returned from the trip to Western Australia. The complainant gave evidence that the younger sister had then told her mother, who decided that it was best that nothing be done about it. The evidence of the younger sister was that she had been told by the complainant within the calendar year 1976. However, she stated that she could not remember whether she had told her mother or not. The complainant's mother gave evidence that she was not told about the allegations until the complainant was an adult.

59 Having regard to these ambiguities in the evidence, counsel for the applicant argued, it was open to the jury to accept that a complaint had not been made at the first reasonable opportunity. Whilst the learned trial Judge was obliged to give the direction required by s 36BD of the Evidence Act, the High Court has held that a balancing direction is required whereby the jury is informed that it was entitled to take into account the delay in assessing the complainant's credibility: Crofts v The Queen (1996) 186 CLR 427. In other words, while the complainant did

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give reasons for not complaining, that does not relieve a trial Judge from giving a Crofts direction.

60 Counsel submitted further that the adequacy of the reasons advanced for delay in complaining needed to be viewed in context of the fact that there was no family relationship between her and the applicant, that there was no evidence that he had every threatened or physically hurt her, and that, after the complainant returned to Adelaide, the applicant was a considerable distance from her geographically. The reasons advanced as to delay were general in nature, related more to her own concerns than to any behaviour on the part of the applicant which caused her to hold those concerns and it was open to the jury to conclude that the concerns were insubstantial.

61 Counsel submitted further that the direction given by the learned trial Judge (at Appeal Book page 216) indicated that complaint was not evidence of truth, but served as a buttress to credibility. The tenor of the direction was that the jury was being told that the fact of complaint could be taken into account in assessing credit and consistency, and that if the jury found that the complaint was not made at the first reasonable opportunity, then they would need to consider the reasons for the delay. It is clear in the context that saying "Its simply a matter which you can and you should take into account in considering the consistency and therefore the credibility of what the complainant has said" is intended to say that the making of a complaint is conduct which is consistent behaviour for the victim of sexual abuse. It does not explain the converse of that, namely, that delay in complaining, notwithstanding any reasons advanced, may be considered as inconsistent. There is a logical difficulty in inviting a jury to consider consistency of conduct when the evidence of complaint is itself inconsistent.

62 Counsel for the applicant submitted that the significance of the delay was twofold as far as the defence case was concerned. First, it should have been left to the jury to consider whether it impacted upon the complainant's credibility as to whether the delay suggested that the complaint was false. Second, it constituted a period of time in which there was an opportunity for the complainant to have embarked upon counselling for other issues in the course of which she may have come to believe that she had been sexually abused when in fact she had not.

63 Counsel for the respondent submitted on appeal that the case was extraordinary in that the learned trial Judge gave a direction in accordance with s 36BD of the Evidence Act and a Longman direction. This was

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necessary as the defence raised the question of delay, despite the Crown relying upon evidence of recent complaint.

64 Counsel for the respondent acknowledged that just as the making of a complaint at the earliest opportunity is supportive of a complainant's credibility, so the failure to make one can be a considerable factor in reducing that credibility: R v Miletic [1997] 1 VR 593 at 603 per Winneke P, Charles and Callaway JJA approved by Croft (supra) at 446 per Toohey, Gaudron, Gummow and Kirby JJ.

65 Counsel for the respondent submitted further that the substance of the direction which is given in any particular case must have regard to the reasons for the absence of complaint or any delay in complaining. The necessity to direct the jury that absence or delay may be taken into account by it in evaluating the evidence of the complainant in determining whether to believe her was required as a general rule: Kailis v The Queen (1999) 21 WAR 100 per Malcolm CJ at par 124. However, the general rule is not a hard and fast rule and a conviction will not be set aside simply because there has not been a direction of that kind: M v The Queen (supra) per Gaudron J at 514 - 515.

Conclusion as to fourth ground of appeal

66 It is apparent from the previously decided cases mentioned in earlier discussion that the purpose of statutory provisions such as 36BD of the Evidence Act was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witness. It was simply to correct what had previously been standard practice whereby Judges were required to instruct juries that complainants were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to sterilise the complainant's evidence from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the Judge should put such comments before the jury for their consideration: Crofts (supra) at 451.

67 In Kailis (supra) Malcolm CJ said at 135 in regard to an issue of this kind that the interests of justice were best served if each case was approached in the light of its own facts and appropriate directions formulated which took account of the arguments raised by those facts.

68 Whilst the learned trial Judge did not strictly follow the rule in Crofts (supra), in that his Honour omitted to state that delay in complaining

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could be a considerable factor in reducing the credibility of the complainant, such a direction was not essential in the circumstances of the present case. In my view, the jury was informed in general terms that the issue of delay was relevant to the overall credibility of the complainant. It was apparent from the context that delay was a matter that weighed against the complainant, and it was in that context that his Honour proceeded to the direction prescribed by the statute.

69 In my view, this meant that the observations made by the learned trial Judge were sufficient to inform the jury that delay in making a complaint should be taken into account when assessing the complainant's credibility.

70 In summary, then, when the summing up is considered as a whole, I consider that it was put before the jury with sufficient clarity that a complaint was made a considerable time after the events the subject of the charges. This was a matter that could be taken into account by the jury in considering the consistency and therefore the credibility of the complainant, and thus the credibility issue was a matter for the jury. Accordingly, I am not persuaded that the verdict was unsafe or unsatisfactory or that the appeal should be allowed on this ground.

Summary

71 I consider that in respect of each of the four grounds of appeal the application for leave to appeal against conviction should be dismissed.

72 ROBERTS-SMITH J: This is an application for leave to appeal against conviction for four sexual offences arising out of events in 1976.

73 The applicant had earlier been presented on an indictment containing 10 counts (one of which was an alternative) of sexual offences against the complainant, in the District Court at Perth in 1999. He was convicted on 9 counts. Those convictions were subsequently quashed on appeal (Christophers v The Queen (2000) 23 WAR 106).

74 There was a re-trial in the District Court in May 2002. The applicant was there acquitted of three counts, but the jury was unable to reach a verdict on seven counts. The second re-trial, from which this application is made, was held before Scott J and a jury in the Supreme Court at Perth in October 2002. The applicant was presented on an indictment containing the seven earlier counts plus two which had been added by the Crown following the second District Court trial.

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75 I have had the benefit of reading in draft the judgment of Hasluck J. It is unnecessary for me to repeat the facts, nor to refer in detail to the evidence.

76 As pointed out by Hasluck J, the first ground of appeal is quite confined. Unlike the situation in Allegretta v The Queen [2003] WASCA 17, Crisafio v The Queen [2003] WASCA 104 and Stalker v The Queen [2003] WASCA 132, this is not a case in which it is complained the learned trial Judge failed to specifically draw the attention of the jury to alleged inconsistencies or discrepancies in the evidence of the complainant. As framed, and as developed in argument, the ground goes only to the proposition that the direction complained of detracted from the significance the jury might otherwise have attached to inconsistencies and discrepancies in the complainant's evidence and from the strength of the Longman direction which his Honour gave (Longman v The Queen (1989) 168 CLR 79).

77 In Hyatt (1998) 101 A Crim R 83 the applicant had been convicted in 1997 of committing sexual offences against a 10 year old girl in 1961, some 36 years earlier. She was aged 46 at the time of trial. No formal complaint was made until June 1995. Winneke P commented that it was a "extraordinary feature" of the trial that the jury was never told of the reason the complainant had given to the police for not coming forward before 1995. She had told them that in the early 1970s she had suffered from a mental illness, as a consequence of which she had lost all recollection of her previous life, including the events giving rise to the charges. She said those events had only been revived in her memory when in 1995, her eldest child had told her that she too had been assaulted by the applicant. Those revelations had produced "flash backs" during the course of which the episodes related in her testimony were revived in her memory.

78 By the time of trial the applicant had already been tried for the alleged assaults against the complainant's daughter and had been acquitted. The issue having been formally raised with him by both the Crown prosecutor and defence counsel for a ruling, the learned trial Judge ruled that if the complainant gave evidence that she had recovered her memory when her daughter had complained to her of sexual abuse by the applicant, the prejudicial effect of her evidence would not, given the steps which his Honour would take to reduce it, exceed the probative force of the evidence. The consequence of that ruling was that defence counsel at trial chose not to attack the reliability of the complainant's evidence on the basis that it was the product of a "revived memory". Thus, the trial

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proceeded without the jury ever learning that what they were hearing from the complainant was not the product of her direct recall of events.

79 The ground of appeal going to those circumstances failed, however, because the situation was held to have arisen as the result of a forensic decision deliberately made by counsel in circumstances which could not be said to have resulted in a miscarriage of justice (89).

80 The appeal succeeded on a different ground. Winneke P (with whom Brooking and Charles JJA concurred) was firmly of the view (89-90) that the trial did miscarry for the want of an appropriate warning given by the Judge to the jury as to the manner in which they should approach the use of the complainant's evidence. The disadvantages which so clearly flow to an accused person in meeting charges so "stale" required the trial Judge to give a very clear warning, with the full authority of his office, to alert the jury to the dangers of acting upon evidence which could not be properly tested by an accused and to do so in terms which would best avoid the possibility of a miscarriage of justice. In the circumstances of that case the warning should have been emphatic.

81 Winneke P set out (at 90) a passage from the judgment of Brennan, Dawson and Toohey JJ in Longman, supra at 91 in which their Honours identified as the critical factor, the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury about that. The nature of the warning required was to point out that as the evidence of the complainant could not be adequately tested after more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, having full regard to the circumstances, were nonetheless satisfied of its truth and accuracy.

82 His Honour observed that:

"It is true, … that what now seems to be called 'a Longman warning' is not to be regarded as something akin to a direction of acquittal. That is not the purpose of the warning, nor is it what the Court said in Longman's case itself. What is required is such direction by the judge, carrying with it the authority of his office, as the circumstances of the particular case require in order to alert the jury to the prejudice which the accused is, through no fault of his own, confronting and, in that way, to avert the risk of a miscarriage of justice occurring."

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83 In that case, the trial Judge began by pointing out that it was basically the complainant's word against the accused and they were dealing with matters that occurred a long time ago. He mentioned that memories fade over time and that facts may appear distorted or get confused as time passes. He referred to the ages of the complainant and her brothers in 1961, suggesting that they would not then understand the matters about which they were giving evidence, as they did now. He said another important consideration was that the passage of time made it harder for the accused to fully and adequately defend himself and gave examples of why that was so. He then pointed out there was no legal limitation period in criminal matters; no number of years after which the Crown cannot proceed. He added that it was to be expected in many of this sort of sexual cases there would be nobody who was around who could be a direct witness and no law that requires a victim to be corroborated and reiterated there was no law about limitation. He went on to say that the by-products "on the other side of the ledger" are those already mentioned, about memories fading, the understanding of people so long ago and the prejudice to the accused in defending himself. He concluded by repeating that the Crown had to prove its case beyond reasonable doubt and before they could so find, the jury would have to scrutinise the Crown evidence, particularly that of the complainant, very carefully.

84 As to these directions, Winneke P said (at 92-93):

"With respect to his Honour, that direction was, in my view, far too equivocal to satisfy the interests of justice in a case where the accused was required to meet allegations of the age which these allegations were. The strength of the warning and the underlying reason for it were diluted, as I see it, by the qualifications which his Honour imposed upon them. Having told the jury that the staleness of the offences operated to the applicant's prejudice because of his inability to test them, he immediately diminished the significance of that prejudice by telling the jury that the Crown had no obligation to proceed with criminal matters within a period of 'legal limitation'. Such a direction was calculated, in my view, to induce the jury to believe that prejudice flowing from the inability to adequately meet and test serious allegations had to be viewed in the context of the Crown's right to commence criminal proceedings at such time as it pleased. This, I think, was misleading, not only because it had a tendency to distract the jury from the purpose of the warning but also because it tended to suggest that

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prejudice to the accused was a necessary and unavoidable by-product of the Crown's right to lay charges as it pleased.

Having made the comments to which I have just referred, his Honour appears to have further diminished the significance of the warning which he was intending to give by saying that corroboration of the complainant's evidence was not required by law. Indeed he said:


'it is to be expected in many of these sorts of sexual cases that there would be nobody who is around who would be a direct witness.'

Such a statement must necessarily detract from the strength of the warning which in my view was required in this case because the nature of the warning is required to bring home to the jury the danger of convicting on the uncorroborated testimony of the complainant.

It seems to me that his Honour was not so much giving a warning which the circumstances of the case required to protect the interests of the accused against the prejudice that he was suffering, but was more concerned to give a direction which was even-handed between the interests of the Crown on the one hand and the accused on the other. Such an approach was not appropriate in a case such as this. The jury should simply have been told that because after 36 years the evidence of the complainant could not be tested and that, therefore, the fairness of the trial had been impaired, it would be dangerous to convict on the evidence of the complainant alone unless, having thoroughly and carefully scrutinised her evidence and paid heed to the warning that had been given, the jury were satisfied of its truth and accuracy. Such a warning, although required, was not given here because the real reason for giving it was 'rolled up' with matters which were irrelevant and then followed by the direction that:


'It is entirely a matter for you, but you have to recognise and it is a direction of law that you must heed, you have to recognise the dangers to a conviction that arise out of these sort of considerations that I have been dealing with.'

Just what was meant or would have been understood to have been meant by the words 'dangers to a conviction that arise out

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of these sort of considerations that I have been dealing with' is far from clear to me. But, in my view, whatever the jury may have understood, they fell far short of the emphatic warning which was required in the circumstances of this case."

85 His Honour concluded that as the misdirection was one of fundamental significance, it was not a case in which the proviso could be applied.

86 Proper consideration of this ground of appeal in the present case requires examination of what the learned trial Judge actually said about these matters in the context of the circumstances of the case and his directions as a whole.

87 Having directed the jury about general matters, including the presumption of innocence and the onus and burden of proof, his Honour dealt with the evidence of the complainant (AB 214-216):

"I'm sure that you will realise that the evidence of the complainant in this case, [the complainant], is vital. The complainant's evidence is critical to the prosecution case and no doubt you will give particular attention to it but you should bear in mind that the incidents alleged in the indictment occurred something like 26 years ago and you should in assessing the complainant's evidence bear in mind not only that these matters occurred at a time when the complainant was a very young child. I think she says that she was aged 10.

You would all know from your own experiences that the passage of time makes events more difficult to recall. You will no doubt be aware that time, particularly this length of time, makes the memory less accurate and it's difficult to recall with any degree of particularity incidents that have occurred so long ago. For that reason, the longer the time that elapses, the greater the possibility of error.

In addition to that you should take into account that in this case some of the recollections are said to have been recovered from the complainant's memory, although I think the way the complainant puts it, and perhaps this is important for you to consider - I think what she says, and it's a matter for you, is that the memories were always there. She says that she blocked them out with alcohol and drugs and so the effect of the alcohol and the drugs meant that the memories were no longer present

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in her mind, but I think her evidence was that in fact the memories were always there so that when she recovered from the alcohol and when she recovered from the drugs, the memories were always there in her mind.

It's not as if, as counsel has suggested to you on her evidence here, that she had obliterated memories entirely. I think effectively what she was saying to you, and it's a matter for you as are all matters of fact, that the memories - that she was using alcohol and that she was using drugs so that these things were not in the forefront of her mind all the time. It's very much a matter for you.

Whether that means that means (sic) that the complainant's memory is intact or whether it means that her memory is not in fact a memory but a fantasy or something that she has invented, or whether the truth is somewhere between those two stages, is a matter entirely for your area of fact finding.

Recollections can be fallible and the effects of imagination or prejudice, particularly of traumatic events, can have the effect of distorting incidents that may have occurred in childhood. Of course apart from the complainant's evidence there is no direct independent evidence upon which the accused could be convicted. The only evidence upon which he could be convicted is the evidence of the complainant.

I'm sure you appreciate that the longer the delay between the alleged incident giving rise to the offence and the complaint, the more difficult it is for evidence relating to the particular incident to be tested. Just by way of example, there's no scientific evidence in this case, which may have been possible had the complaint been made at the time of the event. People could have been scientifically examined and so on so not only would memories have been more recent and accurate but scientific evidence may have been available either to support or help refute the allegations that have been made.

It follows that the longer the delay, the more different (sic: difficult) it is for an accused person to test the evidence of a particular incident, and of course in this regard the long delay has put the accused in this case at a considerable disadvantage as I'm sure you would appreciate.

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I should make it clear to you that the crown relies heavily on the evidence of the complainant and you may of course act upon her evidence, but you should only act upon it, however, after considering it and weighing it up with great care and considerable caution and bearing in mind the warnings that I have must (sic: just) given you.

At the end of the day the question for you will be whether, bearing those warnings in mind and based upon the complainant's evidence and that evidence alone, you are satisfied beyond reasonable doubt that her evidence carries with it such strength and cogency that based upon that evidence alone you could convict the accused. I will of course turn to the complainant's evidence and what are said to be inconsistencies in relation to her evidence a little later."

88 His Honour then dealt with the issues of complaint, evidence of the applicant's good character, the elements of the offences charged, evidence of other sexual acts which had been led only to show the relationship between the applicant and complainant and the evidence of the complainant herself (including whether she had repressed memories).

89 He then turned in detail to the inconsistencies in the complainant's evidence. As I have said, no complaint is made that his Honour's directions were in any way deficient in this respect. He concluded that aspect with the direction (AB 226) that the jury can and should take all of those matter into account and if they thought there were discrepancies in the evidence, bearing in mind the complainant's explanation of them, those discrepancies could properly be taken into account by them.

90 It was at that point that his Honour gave the direction the subject of this ground. But that has to be read with the passage which immediately follows it. The full text was:

"I finally remind you as to [the complainant's] evidence that these incidents are said to have occurred at a time when she was 10 years old and some 26 years ago. I am sure you would understand the difficulty of somebody after 26 years trying to recall in detail incidents that occurred so long ago and as well at a time when the witness was so young. You only have to think back to your own recollection about incidents that occurred in your lives when each of you were 10 to understand what I am saying to you.

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How accurate her memory is likely to be of incidents occurring so much earlier is a matter for you to consider but please do not lose sight of the fact that the onus of proof remains on the crown to establish each charge on the indictment and each element of each charge beyond reasonable doubt." (My emphasis).

91 The applicant contends the direction given in that first paragraph effectively instructed the jury that it would not be reasonable to expect an accurate memory after that period of time. It is said that the direction detracted from the significance that the jury might otherwise have attached to inconsistencies and discrepancies in the complainant's evidence and from the strength of the Longman direction. The submission was that on the one hand the learned trial Judge was directing the jury that the complainant's evidence must be scrutinised with great care because the passage of time rendered it liable to error, but on the other hand, was saying that it would be unrealistic to expect a person to give detailed consistent evidence after that period of time.

92 It was further submitted that the danger with the direction was that it had the tendency to lead the jury to conclude that the inconsistencies relied upon by the defence were to be expected in a case of this type and therefore of little consequence. A long delay typically means that the defence can offer little more than a bare denial of the allegations. Their credibility and reliability can therefore only be tested by reference to surrounding circumstances and if that evidence contains inconsistencies, the accused is entitled to rely on them to impugn the credibility of the evidence. It was accordingly submitted it is therefore important that the weight to be attached to inconsistencies in the evidence of a complainant should not be diminished by a direction which has the effect of suggesting that they are to be expected.

93 The proposition underlying this submission must be accepted. The question is whether or not the direction in this case might have had that effect.

94 Much depends upon how the direction would have been understood by the jury in the context of the directions as a whole.

95 The authorities make it clear that the essential feature of a Longman direction is the effect of the delay on the ability of the accused to defend himself, whether by testing prosecution evidence or adducing evidence on his own behalf. Where specific difficulties confront an accused in a

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particular case, those difficulties should be highlighted by the trial Judge (Longman, supra; R v BWT (2002) 54 NSWLR 241 per Sully J at 263). Kirby J has reiterated that a common element in the different judgments in Longman was recognition of the serious forensic disadvantages suffered by an accused in meeting accusations made long after the offences were alleged to have occurred and a related risk that after such an interval of time the memory of even an honest witness might become contaminated (Doggett v The Queen (2001) 208 CLR 343 per Kirby J at [120] to [122]). The form of direction required here was one of the nature of that which I described in Allegretta, supra, at [105], namely one:

"… which warned the jury of the danger of convicting on the complainant's evidence alone not only because of the difficulties of recollection thereby presented to the applicant, but because of the denial to the applicant of the forensic weapons that a reasonably contemporaneous complaint would have provided."

96 The direction given by his Honour was not in my view as emphatic as it should have been. It was first qualified by the statement that the passage of some 26 years makes events more difficult to recall and the memory less accurate, with a greater possibility of error. I think this was a qualification of the direction at AB 214 quoted above to give "particular attention" to the complainant's evidence and the jury would have so understood it, because of the use of the word "but" which immediately followed it.

97 There were only two short passages in which his Honour referred to the forensic prejudice to the applicant flowing from inability to test the complainant's evidence after such a lapse of time. The first of those passages (the fourth last paragraph quoted above) was weakened in its purpose of directing the jury's attention to prejudice to the applicant, by his Honour's remarks to the effect that not only would people's memories be more recent and accurate but other evidence may have been available either to support or help refute the allegations made. That inferred the complainant was as much prejudiced as was the applicant.

98 His Honour did, however, then go on in the following paragraphs to refer specifically to the difficulty the delay had made for the applicant and to direct the jury they could only act upon the complainant's evidence if, after weighing it carefully and with his Honour's warning in mind, they concluded it was of such strength and cogency that on it alone they could be satisfied beyond reasonable doubt of the applicant's guilt.

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99 Had his Honour then reminded the jury of the apparent inconsistencies in the complainant's evidence and left the matter there, there could have been no real complaint. But to then say, as he did, that the jury would understand the difficulty of somebody trying to recall in detail incidents which occurred some 26 years ago, when she was 10, was tantamount to telling them such inconsistencies were to be expected and did not detract from her credibility or the reliability of her testimony.

100 In the context of a Longman direction which lacked the emphasis or force which it should have been given in the circumstances of this case, the passage complained of, in my view, may well have deprived the applicant of a chance of acquittal that was fairly open to him and there was accordingly a substantial miscarriage of justice (Mraz v The Queen (1955) 93 CLR 493). I would uphold the appeal on this ground.

101 The applicant's position with respect to the second ground turned on the evidence of the complainant in cross-examination that on an earlier occasion she had said she had been hypnotised just to bring out things that she had blocked out of her memory, but that she had been confused when she said that because she was scared and traumatised. She later said in cross-examination that she was not lying when on an earlier trial she said she had been hypnotised, but had been mistaken. Her submission was that if the jury thought her explanation for having given that earlier evidence was not credible, it would have been open to them to conclude there was a reasonable possibility that she had been hypnotised and that the memories she was relating in evidence were so-called "repressed memories" and not real ones.

102 There appeared to me to be considerable confusion and loose terminology of this, both before us and on the earlier occasions.

103 The term "repressed memories" has been used variously to described memories of real events which because of their traumatic nature or other circumstances, were immediately repressed and not brought back to conscious recollection until some precipitating circumstance, usually years later; or false memories of events which never actually happened, but which are produced in the subject, often by suggestive therapy or counselling, and which he or she believes to be true.

104 What the complainant described in this case was something different again. She said she knew what a repressed memory was (and apparently explained the term in the first sense I have described). She said her evidence was not of that kind. She said she had a memory of the events

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which actually happened and of which she had always been aware, but which she had from time to time pushed "to the back of her mind" by the use of drugs and alcohol.

105 I take the correct use of the term to be in the sense I have first mentioned and I consider it should be used carefully only in that sense. To use it in the second sense (as was done from time to time in this case) is inaccurate and misleading, because what is being spoken about is not a "repressed" memory at all, but an induced false memory.

106 It is immediately apparent that it is a meaningless exercise to ask a witness in either of the first two categories to which I have referred, whether or not what he or she is recounting is a repressed memory (if by that is meant a false memory of events which never happened). That is because both subjects believed their memories to be true memories of real events. In the first case that will in fact be true; in the second case it will not.

107 It seems to me that the first problem with the submission advanced in support of this ground is that it would not have been open to the jury to conclude there was a reasonable possibility the complainant had been hypnotised and from that process had derived false memories of sexual assaults by the applicant.

108 The only evidence on the point was from the complainant. As Hasluck J has pointed out, in the end her testimony was that she had not been hypnotised, that she had been confused and mistaken when on an earlier occasion she had said she had been hypnotised, and that she had never lost her memories of what had occurred. Even if the jury positively disbelieved that account, the most that would have meant would have been there was no evidence about it at all. A disbelief of a denial that something happened is not positive evidence that it did. For his Honour to have directed the jury in the way suggested by counsel for the applicant would have been to invite them to speculate - which a jury must not do.

109 The second point to be made here is that the learned trial Judge did in fact expressly raise with the jury the possibility that what the complainant was recounting was a false memory. That was after he reminded them of what the complainant's evidence had been, after which he said (AB 214):

"Whether that means that means (sic) that the complainant's memory is intact or whether it means that her memory is not in fact a memory but a fantasy or something that she has invented,

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or whether the truth is somewhere between those two stages, is a matter entirely for your area of fact finding." (My emphasis).

110 In my opinion, that left the issue with the jury properly and in a way which was open on the evidence.

111 As to the third ground, I respectfully agree with Hasluck J. In addition, the learned trial Judge had made it very clear to the jury at the outset of his directions that he was not expressing any particular view of her case nor of the evidence. At AB 211 he said:

"I want to make it clear to you that I'm not seeking to persuade you to any particular view which you should take of the evidence or of the case. All I will be doing is pointing out aspects of the evidence for you to take into account."

112 And shortly afterwards he said:

"… it is critical that you take into account all of the evidence in these cases and you reach your own conclusions about the matter and your own view about the case generally. I wouldn't like you to think that I have a particular view about these cases one way or the other or that I am pointing to any evidence which leads you to any particular conclusion. As I say, all I will be doing is pointing out facts for you to take into account."

113 It is not to be assumed that the jury disregarded the cautions.

114 I would also reject the fourth ground of appeal for the reasons given by Hasluck J.

115 For the reasons given above in respect of ground 1, I would grant leave to appeal, allow the appeal, quash the applicant's conviction on each count, and order a re-trial.