Dawe v The Queen - [2001] WASCA 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DAWE -v- THE QUEEN [2001] WASCA 306

CORAM: MALCOLM CJ
STEYTLER J
BURCHETT AUJ

HEARD: 7 AUGUST 2001

DELIVERED : 5 OCTOBER 2001

FILE NO/S: CCA 61 of 2001

BETWEEN: LESLIE MELVYN DAWE
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Indecent dealing - Rape - 30 to 40 years elapsing between alleged offences and trial - Whether trial Judge failed to give proper warning regarding delay in complaint - Longman warning - Warning given to jury about complainant's evidence inadequate in the circumstances - Verdicts unsafe and unsatisfactory

Legislation:

Evidence Act 1906, s 36 BE, s 50

Result:

Appeal allowed
Conviction quashed
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Mr J Mactaggart

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: State Director of Public Prosecutions

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

Bromley v The Queen (1986) 161 CLR 315
Christophers v The Queen (2000) 23 WAR 106; [2000] WASCA 344
Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60
Doggett v The Queen [2001] HCA 46
Kelleher v The Queen (1974) 131 CLR 534
Longman v The Queen (1989) 168 CLR 79

Case(s) also cited:

BRS v The Queen (1997) 191 CLR 275
Gaulard v The Queen [2000] WASCA 218
James v The Queen [2000] WASCA 100
Kilby v The Queen (1973) 129 CLR 460
Petty v The Queen (1994) 13 WAR 372
Sheasby v The Queen [2000] WASCA 190
Vann v The Queen [2001] WASCA 177

MALCOLM CJ: In my opinion this appeal should be allowed, the convictions quashed and a new trial ordered. I have reached this conclusion for the reasons to be published by Steytler J with which I agree. I only wish to add some comments of my own. Given that the period between which the 10 offences alleged in the indictment were said to have occurred on dates unknown between 26 August 1960 and 26 August 1970 and the trial commenced on 28 March 2001, the earliest offence occurred more than 40 years before the trial and the most recent some 30 years before the trial. This was clearly a case in which a warning of the kind referred to in Longman v The Queen (1989) 168 CLR 79 was required.
As Gleeson CJ said in Doggett v The Queen [2001] HCA 46 at [13], the use of the expression "a Longman warning" is not particularly enlightening, unless it is accompanied by an explanation of the terms of the warning. Furthermore, as the Chief Justice pointed out in Doggett at [10] - [11]:
"Longman v The Queen [(1989) 168 CLR 79] is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be 'dangerous' or 'unsafe' to convict on the uncorroborated evidence of the complainant. Furthermore, in the present case, the jury could not reasonably have found that the evidence of the complainant was uncorroborated.
In Longman Deane J, referring to the significance of the delay on its own, said [(1989) 168 CLR 79 at 100]:
'The long effluxion of time (more than twenty years) between alleged offences and complaint and alleged offences and trial is of much greater significance. However, it would not, in my view, suffice of itself to produce the consequence either that it was not open to the learned trial judge to fail to be satisfied that a warning of the kind described in s 36BE(1)(a) was justified or that the verdict was unsafe and unsatisfactory in the absence of such a warning. True it is that such delay can be disadvantageous to an accused. In the context of the criminal onus of proof, it can be even more disadvantageous to the prosecution. Be that as it may, it does not seem to me that those possible disadvantages to an accused necesssarily require a warning of the kind described in s 36BE(1)(a). The direction which would ordinarily be appropriate to deal with them would be one aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences.' "
The relevant facts and evidence have been fully set out in the reasons to be published by Steytler J. I agree with Steytler J for the reasons his Honour has expressed that the directions to the jury in this case were inadequate. The learned trial Judge did draw to the attention of the jury some of the dangers which needed to be taken into account by reason of the lengthy period of time between when the offences were alleged to have taken place and the allegations being made the subject of complaint. However, the warning given made no mention of the possibility that the passage of time of between some 30 - 40 years may be productive of a faulty recollection of relevant events, not only on the part of the complainant, but also on the part of the accused. There was also the possibility of confusion between things alleged to have been done by the appellant's father and things alleged to have been done by the appellant, as allegations were made by the complainant against both of them. Nothing was said about that. In addition, as a result of the lapse of time, the father was deceased and unavailable to give evidence. The loss of the opportunity to obtain evidence from the father may have placed the appellant at a forensic disadvantage, but there was no mention of this possibility by the learned trial Judge. In this case this loss of opportunity was a compounding factor in the general context of the likelihood, by virtue of the passage of time, of the difficulty in the appellant obtaining evidence from other persons regarding his activities and whereabouts in the context of the opportunity to commit the offences alleged. These and the other matters referred to by Steytler J are the reasons why a Longman "warning" or direction to the jury was required.
In my opinion, it was not necessary for the learned trial Judge to warn the jury that it would be "dangerous" to convict on the uncorroborated evidence of the complainant or to specifically refer to "danger" in the direction. It would be sufficient to warn the jury that it would be unsafe to convict the appellant of any particular count on the uncorroborated evidence of the complainant alone unless the jury, having scrutinised the evidence with great care, considering the circumstances relevant to its evaluation and taking full account of the warning, were satisfied beyond reasonable doubt of its truth and accuracy in relation to that count.

In my opinion, for the reasons which have been clearly expressed by Steytler J, the direction in the present case was inadequate. In particular, I agree that because of the extraordinary lapse of time in the present case, some reference to the possibility of distortion or mistake in relation to the events alleged in relation to the individual counts should have been incorporated in the directions to the jury, bearing in mind that the earliest offence was said to have occurred when the complainant was aged between 4 and 6 years.
For the reasons expressed by Steytler J and supplemented by my own comments, I agree that there is a real risk in this case that there has been a miscarriage of justice with the consequence that the verdicts are unsafe and unsatisfactory, so that the convictions must be quashed.
STEYTLER J: The appellant was convicted, after a trial by jury, on 3 counts of indecently dealing with a girl under the age of 13 years and 7 counts of rape. He appeals against those convictions.

The alleged offences

The indecent dealing offences are said to have occurred on three separate occasions between 1960 and 1968. The 7 counts of rape are said to have occurred between 1966 and 1970. The complainant was born in August 1956. She was consequently between 4 and 12 years of age at the time of the commission of the alleged acts of indecent dealing and between 10 and 14 at the time of the alleged rapes. The trial having taken place in March this year, it will be apparent that some 40 years have elapsed between that date and the date of the first of the alleged offences and that some 30 years have elapsed between the trial date and the date of the last of the alleged offences.
The appellant was the complainant's father's first cousin. He was 25 years old in 1966, when the alleged offending commenced. The complainant said that the appellant was not the only person who sexually assaulted her. The appellant's father, who had died by the time of the trial, had, she said, molested her from the time at which she was first able to remember things and continued to do so until she was 14 years old.
The event referred to in the first count on the indictment is said to have occurred when the complainant was only between 4 and 6 years old. While in a station wagon parked in the driveway of her parents' house she was, she said, touched by the appellant in her genital area. He then tried to insert his finger into her vagina.

The events the subject of the second, third and fourth counts are said to have occurred when the complainant was between 10 and 11 years old. She said that these took place when the appellant took her to the bedroom of his home. She said that he touched her breasts and her genital area and put his mouth on her genital area. She also said that he then had sexual intercourse with her.
The event the subject of count 5 is also said to have occurred when the complainant was 10 or 11 years old. She had been baby sitting for the appellant and his wife and stayed overnight at his house. She was awakened by the appellant coming into her bedroom and picking her up out of the bed. She said that she realised what was going to happen to her and began to cry. She also said that, notwithstanding this, the appellant carried her through the house and into the toilet where he raped her. He only desisted when his wife came to the door because, the complainant said, she could hear the complainant crying.
The events the subject of counts 6, 7 and 8 are said to have occurred when the complainant was 12 or 13 years old. As to count 6, the appellant is alleged to have taken the complainant home from Mandurah, turned his car off the road and raped her in his vehicle. Count 7 is said to have occurred after the appellant had taken the complainant for a driving lesson. He is alleged to have taken her to his house, placed her on the bed in his bedroom and raped her. Count 8 is said to have occurred when the complainant was, once again, baby sitting for the appellant and his wife at their home. He is said to have raped her at his home.
The events the subject of counts 9 and 10 are said to have occurred when the complainant was 13 years old. On each occasion the appellant is said to have raped her in his motor vehicle.
The appellant, in his evidence, denied that he had ever indecently dealt with or raped the complainant. However he admitted that he had had sexual intercourse with her on a number of occasions, and that some of these occurred at places identified by her. He said that all of these occasions were consensual and that each took place in late 1970 and in 1971 at a time when the complainant was at least 14‑1/2 years old. The appellant's counsel suggested, in the course of cross‑examination of the complainant, that the complainant was mistaken about who had been molesting her prior to her 14th birthday. He suggested that it was in fact the appellant's father who had done so. The complainant denied that this was so. The appellant's counsel also put to the complainant that, in July 1972, she had left her 12 year old sister alone with the appellant in his home. He suggested that she would not have done so had he molested the complainant in the manner alleged by her.
The appellant's wife (from whom he was separated at the time of the trial) gave evidence at the trial. She denied any knowledge of the event alleged in count 5, being the alleged rape of the complainant in the toilet of the appellant's home. She said that she came to believe, during 1970, that the appellant was having an affair with the complainant who, she said, used to visit him when she was not home. She confronted the appellant about this after Christmas day in 1970 and then went to the complainant's home and confronted her and her mother. She said that the complainant denied that she was having an affair with the appellant.
Self‑evidently, the jury rejected the appellant's version of events and was satisfied as to the truth of what was said by the complainant.

The grounds of appeal

There is a relatively large number of grounds of appeal. However, because of the conclusion at which I have arrived, it is necessary to mention only grounds 1 and 11. These read as follows:
"1.His Honour the Trial Judge failed to give a proper warning to the Jury in relation to the Jury acting on the uncorroborated evidence of the Complainant because of the long delay in complaint in accordance with Longman v R 89 ALR 161 as recently considered in Crampton v The Queen 75 ALJR 133 in that:
(a)His Honour the Trial Judge did not direct the Jury that it would be dangerous to convict on the evidence of the Complainant 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.
(b)His Honour did not tell the jury that because 30 to 40 years had elapsed between the date of the alleged offences and the complaints the fairness of the trial had necessarily been impaired giving rise to the need for the warning in Ground 1(a) because:
(i)the evidence of the complainant could not be adequately tested after the passage of 30 to 40 years;
(ii)there was a loss of opportunity on the part of the accused to explore in detail the alleged circumstances attendant upon the occurrence of the incidents and perhaps adduce evidence throwing doubt upon the complainant's story or confirming the Appellant's evidence;
(iii)there was a loss of opportunity to present forensic evidence;
(iv)experience has shown that human recollection and particularly the recollection of events occurring in childhood is frequently erroneous and liable to distortion by reason of various factors;
(v)the likelihood of error increases with delay;
(c)His Honour did not point out other difficulties the accused faced in obtaining a fair trial in this case adding to the need for a warning in that:
(i)there was no satisfactory explanation for the continued delay in complaint after the prosecution of the accused's father for sexual offences against the complainant in 1974;
(ii)the complainant was a girl aged between 4 and 14 years of age at the time of the events and that therefore she was attempting to recall incidents which occurred many years before;
(iii)in relation to counts 2, 3 and 4 the allegation involved the awakening of a 9 to 12 year old child;
(iv)there was a lack of specificity as to the dates on which these offences were alleged to have occurred making it difficult if not impossible for the defence to examine the circumstances of the alleged offences.
(d)His Honour the trial Judge did not ask the jury to consider the defence submission that it would be unlikely if these allegations were correct that the complainant, having been indecently dealt with and raped by the accused for 10 years as a child, would leave her 12 year old sister alone with the accused at his home and drive off with her boyfriend as she said she did at page 102 of the transcript.
...
11.The Learned Trial Judge erred in law in that the terms of his warning to the jury to examine the Complainant's evidence with particular scrutiny and with a great deal of care on each count before acting upon it were qualified in such a way as to diminish the significance of the warning.
PARTICULARS
(a)Although His Honour told the jury that they are required to follow his directions on the law he stressed that the jury should reach its own conclusions about the evidence and the facts of the case generally and that he was not seeking to persuade them to a particular view when he brought to their attention particular aspects of the evidence.
(b)The Learned Trial Judge directed the jury that because of the effluxion of time it would be difficult for the accused to have any specific recollection about the particular events in particular circumstances.
(c)The Learned Trial Judge said 'that is a warning which the law requires me to give'. The full force and authority of his office should have been brought into the direction by the Judge himself giving a direction in law to counter the danger which is therein identified. He should warn the jury of the danger and explain the reasons for the matter rather than saying 'I'm giving you this warning because the law requires me to.' "

The trial Judge's summing up

The trial Judge, in his summing up to the jury, made a number of preliminary comments, before turning to the elements of the offences charged and to the evidence which had been given at the trial. In dealing with the evidence he mentioned the absence of any prompt complaint by the complainant. She had said in this respect that, when her mother had found out that the appellant's father had been interfering with her, her mother had told her that she was "a filthy little bitch" and that she should not let it happen again. Her mother beat her with a leather strap. She said that she consequently made no further complaint either about him or about the appellant. Indeed, she made no complaint about the appellant even when his father, Reginald Dawe, was charged, in 1974, with the sexual offences which he had committed in respect of the complainant. However, she explained this by saying that she had not wanted to go to the police even about Reginald Dawe. It was her grandmother who had called the police. She also said that she was then only 17 years old, that she was extremely embarrassed and that her husband was present when she was made to go into intimate details of what had been done to her by Reginald Dawe.
After touching upon this evidence, and other matters, including issues raised on behalf of the appellant, the trial Judge went on to say the following:
" There are a couple of other warnings that I need to give you that are required by law. The first one, I don't think, really will surprise you and it's this: the evidence in this case indicates that these offences occurred a very long time ago on any version of the facts, either the crown's case or the defence case.
On the crown's case they occur [sic] between 26 August 1960, which is the opening date on the indictment, and 26 August 1970 which is the closing date on the last count on the indictment. That's a very long time ago and on the crown's case a time at which the complainant was aged between 4 and 14 years, if you accept her date of birth as being 26 August 1956, and that doesn't appear to be in dispute. So these incidents therefore occurred a very long time ago, between 30 and 40 years ago, and at a time when the complainant was very young on the crown's case.
No complaint was made about the matter at the time, and you have heard both counsel comment upon that. Absence of such a complaint at the time of these events of course does not necessarily indicate that the allegations now made were false. There may, as I have said, be many good reasons why a complainant would not make a complaint about a matter as to when these things occurred, but it is important for you to bear in mind that because of the long delay in these matters coming to light memories of such events become more unreliable, and I'm sure that's a commonsense matter that has occurred to all of you.
As you would all realise, time dulls the memory and events and recollections become more fallible over time. For these reasons you should scrutinise the evidence of the complainant with very great care. As I have said, the complainant was only very young when it's alleged these events commenced and indeed when they concluded and there's really no other independent evidence, apart from a little from her sisters, that confirms the evidence which she gave. So you need to look at the complainant's evidence with very great care before you accept it.
As counsel have said, and I agree as a matter of law, one of the difficulties for an accused confronted with allegations of this type, having occurred so many years earlier - as I'm sure you would understand, it's difficult for him to have any specific recollection about the particular events in particular circumstances.
That can add to the injustice of a trial occurring so many years after these events occurred, because you need to tie down dates, you need to tie down places, you need to tie down circumstances and counsel have each spoken to you about the difficulties an accused confronts when he has to deal with matters that occurred so many years earlier.
So you can only convict the accused of any of these charges if based upon the complainant's evidence you can be satisfied beyond reasonable doubt that each of the incidents alleged occurred. Expressed another way, the question for you is whether the evidence of the complainant carries to your mind sufficient conviction so that based upon that evidence and effectively that evidence alone you can be satisfied beyond reasonable doubt of the guilt of the accused in relation to each particular charge judged individually.
It's important that you examine the complainant's evidence with particular scrutiny and examine her evidence with a great deal of care on each count before you act upon it. That is a warning which the law requires me to give you."

"Longman" warnings

Warnings of the general nature of that given by the trial Judge have, somewhat unhelpfully, come to be described as "Longman warnings", since the decision of the High Court in the case of Longman v The Queen (1989) 168 CLR 79.
The courts had, prior to that case, traditionally warned juries of the danger which they saw in acting on the uncorroborated testimony of an alleged victim of sexual offences (see Bromley v The Queen (1986) 161 CLR 315 at 319, 323 and Longman, above, at 85). Convictions, in cases in which no such warning was given and in which the alleged victim's evidence was uncorroborated, were usually regarded as unsafe and unsatisfactory (see Kelleher v The Queen (1974) 131 CLR 534 at 551 and Longman, above, at 85). However in 1985 the legislature enacted, in this State, a number of provisions which were designed to deal with evidence in trials for sexual assault offences. One of these was s 36BE of the Evidence Act 1906. Sub‑section (1) of that section read as follows:
"  (1)  On the trial of a person for a sexual assault offence or an offence under Chapter XXII of The Criminal Code -
(a)  the judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and
(b)  the judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances.
...  "
That section was repealed in 1988 and replaced by s 50 of the Evidence Act which reads as follows:
"50. Corroboration warnings not generally required
(1)In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2)On the trial of a person on indictment for an offence -
(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."
It is plain, from these provisions, that the legislature regarded a "rule of law or practice" of the kind which had developed prior to 1985 as unwarranted, insofar as it applied indiscriminately in all cases of alleged sexual offences (cf Longman, above, at 85 ‑ 86). However, the Judge, in each case, retains a discretion to comment on the circumstances of the case.
There were, in Longman's case, several circumstances which required comment. The appellant had been charged with two counts of indecent dealing with his stepdaughter. She had been 6 years old at the time of the first of the alleged offences and 10 years old at the time of the second. She said that she had been asleep on each occasion and was awakened by the appellant touching her. The first time she complained to the police was 20 years after the time of the second offence. In these circumstances, Brennan, Dawson and Toohey JJ said (at 90 ‑ 91):
"It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s. 36BD [of the Evidence Act] requires) that there may be 'good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence'. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer [1987] AC, at p 141. That factor was 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. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) (1989) 168 CLR 23 at 31 ‑ 32, 42 ‑ 44, 56 ‑ 57, 71 ‑ 72) and it was imperative that a warning be given to the jury. 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, was 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 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."
In the same case Deane J (at 97) said that when complaint is made of the absence of a warning of the kind referred to in s 36BE(1)(a), the ultimate question for the appellate court is whether, "viewed in the context of the summing up as a whole and of any other particular or general defects in it, the effect of the absence of a warning of that kind is that there is a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory". His Honour also said (at 101):
"The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi‑fantasy into the absolute conviction of reality."
McHugh J, in that case, said (at 107 ‑ 108):
"The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev. ed. (1964), pp 269 ‑ 270."
His Honour concluded (at 108) that the case before him was one in which the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. He said, in this respect:
"The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge."
The issue has recently been re‑addressed by the High Court in Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60 and in Doggett v The Queen [2001] HCA 46.
In Crampton Gaudron, Gummow and Callinan JJ mentioned (at 141, par 42) that there may be some differences, of degree only perhaps, between the joint judgment in Longman and the judgments of the other members of the court in that case. They said, in that respect:
"[T]he former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone ... . The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result ... ."
Their Honours thought that what was said by the trial Judge in Crampton's case (and it is unnecessary, for present purposes, to repeat it) fell short of a warning and amounted only to a "caution". They said that the trial Judge had said "too little, too unemphatically, and less than what Longman required be said in the circumstances of ... [the] case." They considered (ibid) that almost all of what had been said by the majority in Longman should, with appropriate adaptations to the circumstances of the case, have been put to the jury. They went on to say (ibid):
"Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co‑complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion."
Kirby J, in Crampton (at 157, pars 129 and 130), said that, in cases of the kind before him, Longman obliges trial Judges, "not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial." His Honour went on to say (par 130) that the warning required by Longman "must be, in the words of the joint reasons in this case, 'unmistakable and firm'."
Hayne J, too, said (at 159, par 142) that:
" ... [W]hat has come to be known as a 'Longman warning' is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many 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."
Doggett was another case involving a long delay (between 12 and 18 years) between the alleged offences and the making of a complaint to the police. The complainant had there been between 8 and 15 years old over the period of the alleged offences.
Gleeson CJ, in that case, stressed (par 10) that Longman is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be "dangerous" or "unsafe" to convict on the uncorroborated evidence of the complainant. His Honour also there said (par 13) that the use of the expression "a Longman warning" is not particularly enlightening, unless accompanied by an explanation of the terms of the warning, and may distract attention from the need to relate all directions to the circumstances of the particular case, and to the issues as they have emerged for resolution by the jury.
Gaudron and Callinan JJ said (par 51), as they had earlier done in Crampton (at 141), that the problems with which Longman was intended to deal were not confined to difficulties of recollection that the passage of time might cause for an accused. They said that of equal, and in some cases more, importance was the denial, by the effluxion of time, to an accused person of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.
McHugh J, in Doggett, like Gleeson CJ, placed some emphasis (par 80) on the special circumstances which had been present in Longman. He said (ibid) that those circumstances had required, in that case, "a warning that it was dangerous to convict on the uncorroborated evidence of the complainant unless her evidence was scrutinised with great care".
Kirby J, in Doggett, reiterated (par 100) that delays in complaint, accusation and formal charge commonly present serious forensic difficulties for the effective defence and fair trial of the accused. Importantly, his Honour pointed out (ibid) that it is because some of these difficulties may not be within the jury's knowledge that Longman requires that, when appropriate, the Judge must warn the jury about them. His Honour also said the following (par 120):
"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."
His Honour also reiterated what he had earlier said in Crampton (at 156) as regards the distinction between a comment and a warning. He said that, whereas a comment simply reminds the jury of matters ordinarily within the experience of non‑lawyers which they may otherwise overlook, a warning "derives from the special experience of the law".
Justice Kirby also mentioned (par 126) that jurors, unlike Judges, would not "be aware of the findings of experimental psychology or of the common experience of forensic contests, and other data supporting the reflections about memory, mentioned in Longman". That, his Honour said, is why, in a case of a long delay, a comment, rather than a warning, would not be sufficient. He added (par 127) that, in an appropriate case, it would also be as well for the warning to contain reference to the additional consideration mentioned by Deane J (the danger of fantasy or semi‑fantasy hardening into the "absolute conviction of reality") and McHugh J (the prospect of false recollections of honest witnesses) in Longman in their separate reasons.

The adequacy of the direction in this case

In this case the trial Judge did draw to the attention of the jury some of the dangers which the substantial delay between the time of the alleged offences and the time of trial presented.
It will be apparent from what I have said that he made it plain that there had been a very long delay in, as he put it, "these matters coming to light" and that this made memories of "such events" become more unreliable. He also mentioned that the complainant had, at the material time, been aged between 4 and 14 years. He said that the jury should scrutinise her evidence "with very great care" and that there was really no independent evidence, "apart from a little from her sisters", that confirmed the evidence which she gave. The evidence to which his Honour referred, although he did not repeat it, was of limited compass. There was evidence from one sister that, in 1970, the complainant had come home from a driving lesson with the appellant with one of her dress straps broken. When teased about it, her sister said, she seemed embarrassed. Her other sister gave evidence of an occasion, in 1967, when the appellant had attempted to put his hand down her pyjama top (she was then 12 years old) and, when she objected to this, told her that the complainant let him do this.
Next, it will also be apparent that the trial Judge told the jury that one of the difficulties for an accused, confronted with allegations of the kind which had been made in circumstances in which so many years had elapsed, was that it was difficult for him to have any specific recollection about the particular events in particular circumstances.
However, it seems to me, with great respect, that what was said by the trial Judge fell short of what was required in the particular circumstances of this case, even taking into account that some sexual misconduct on the part of the appellant (having a sexual relationship with the complainant when she was 14) was admitted.
Perhaps the most important shortcoming, in my respectful opinion, is that no mention was made of the possibility of distortion in the complainant's memory. Without wishing in any way to impugn the credibility of the complainant, this was, in my opinion, undoubtedly a case in which the jury should have been alerted to the possibility of distortion. The events in question had, as I have repeatedly pointed out, occurred 30 to 40 years previously and the first of them occurred when the complainant was only between 4 and 6 years old. That, in itself, raises the possibility of distortion in memory over what is, by any measure, a very long period of time, even longer, and by much, than the times involved in the leading cases. Most importantly, the beginning of the long memory alleged was the dawn period of childhood, when the perception of the difference between myth and reality, if not immediately, at least in later memory, may be somewht misty. Moreover, I have already mentioned that all of the offences occurred during a period in which the complainant was being sexually molested by the appellant's father. In those circumstances it was, in my opinion, necessary to warn the jury of the danger that a subsequent going over of events, or a possible confusion in memory, might operate to distort recollection so as to lead to the risk that, over the years, some, at least, of the offences committed by the appellant's father might have become confused, in the complainant's mind, with those which she believed to have been committed by the appellant.
It is also important to bear in mind, in this last respect, that the death of the appellant's father meant that the opportunity had been lost of attempting to elicit from him what, if anything, he might have known about the offences alleged against the appellant, or some of them. This factor was not mentioned at all by the trial Judge. In my respectful opinion it should have been.

It also seems to me, with due respect, that what was said by the trial Judge amounted more to a caution than to a warning of danger. While I would not be prepared to go so far as to say that a trial Judge must use the word "danger" in such cases (cf the comments of Deane J in Longman, above, at 101 and those of Owen J in Christophers v The Queen (2000) 23 WAR 106 at 117; [2000] WASCA 344 at [37]), this was a case in which there was a real danger arising out of the matters to which I have referred and the jury should, in my respectful opinion, have been warned of it in more emphatic terms than those which were used. While the trial

Judge did commence his direction in this regard by saying that "a couple of other warnings" were needed, his Honour's remarks were, as I read them, more in the nature of comments on the evidence, raising matters of common sense, than a warning of a real danger which has, in such cases, become apparent to the courts through long experience.

It is, I think, unfortunate, in this last respect, that the trial Judge said, before giving the warning to which I have referred, that it was one which he was "required by law" to give (and he concluded his remarks in this respect with a similar comment) and that it was one which would not surprise the jury. As was pointed out by Kirby J in Doggett, the reason that warnings of this kind are required in such cases is because of the special knowledge that judges have gained and which jurors will not ordinarily have. Consequently, having chosen to say that the warning was one which he was required by law to give, his Honour should, in my respectful opinion, have said why this was so, telling the jury that it derived from the special experience of the courts. He should not have said that the warning was one which should not surprise the jury, thereby diminishing its importance. Nor, in my opinion, should it have been associated with ambiguous language, such as the reference to "these matters coming to light", which could be taken to suggest an acceptance by the Judge of the complainant's evidence.

Conclusion

The ultimate question is, of course, that of whether the shortcomings to which I have referred, when taken together and looked at in the context of the summing up as a whole, have resulted in a real risk that justice has miscarried with the result that the verdicts are unsafe and unsatisfactory (see Longman at 97 and Doggett at par 138). In my opinion they have had that result. The failure to give an emphatic warning encompassing the material dangers might have led the jury to underestimate those dangers, giving rise to the real risk of a miscarriage. It consequently seems to me that the appeal should be upheld, the conviction quashed and, regrettable though that is in a case of this kind, a retrial ordered.
BURCHETT AUJ: I have had the advantage of reading in draft the judgment of Steytler J. I am in entire agreement with it.