DRE v R

[2006] NSWCCA 280

Reported Decision: 164 A Crim R 400

New South Wales

Court of Criminal Appeal

CITATION:	DRE v REGINA [2006] NSWCCA 280
HEARING DATE(S):	6 March 2006
JUDGMENT DATE:	7 September 2006
JUDGMENT OF:	Spigelman CJ at 1; Simpson J at 46; Adams J at 83
DECISION:	Appeal dismissed
CATCHWORDS:	Conviction appeal - delay - Longman direction - whether adequate - appeal dismissed (by majority)
LEGISLATION CITED:	Criminal Appeal Rules r 4 Evidence Act 1906 (WA) s36BE(1)
CASES CITED:	Crampton v The Queen [2000] HCA 60; 206 CLR 161 Doggett v The Queen (2001) 208 CLR 343 JJB v Regina [2006] NSWCCA 126 Longman v The Queen (1989) 168 CLR 79 R v BWT (2002) 54 NSWLR 241 R v DRE [2004] NSWCCA 305 R v Johnston (1998) 45 NSWLR 362 R v Kesisyan [2003] NSWCCA 259 R v WSP [2005] NSWCCA 427 Robinson v R [2006] NSWCCA 192
PARTIES:	DRE (Appellant) v REGINA
FILE NUMBER(S):	CCA 2005/2148
COUNSEL:	Mr C B Craigie SC (Appellant) Mr P G Ingram (Crown)
SOLICITORS:	Mr S O'Connor (Appellant) Mr S Kavanagh (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/51/0133
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ
LOWER COURT DATE OF DECISION:	28/02/05

2005/2148

SPIGELMAN CJ
SIMPSON J
ADAMS J

7 SEPTEMBER 2006

DRE v REGINA

Judgment

1 SPIGELMAN CJ: This is yet another case in which small differences in terminology are said to constitute failure to comply with the requirements of a warning in accordance with Longman v The Queen (1989) 168 CLR 79. It is a particular feature of the present case that the failure to give such a warning at all was one of a number of grounds of appeal upheld by this Court in the first trial for these offences. (See R v DRE [2004] NSWCCA 305.)

2 In the second trial a Longman warning was given, but is said to have been inadequate.

3 The general background of the relationship of the complainant and the Appellant together with the details of each of the five alleged incidents the subject of the respective counts on the Indictment are set out by Adams J.

4 This is at best a borderline case for a Longman warning. With respect to Count 5 the delay before the first interview with police was only a few months. With respect to the other counts it was some three years before revelation to the police, albeit another two and a half years elapsed before the allegations were provided in detail to the Appellant. The case has proceeded on the basis that a Longman warning was required. The only issue before this Court is its adequacy.

5 The relevant portion of his Honour’s summing-up is set out in full by Adams J.

Rule 4

6 The Crown relies on r 4 of the Criminal Appeal Rules. The passage in which trial counsel indicated that he did not require any redirection is set out by Adams J. What the trial judge referred to as a “guarded response” is somewhat opaque. I am, however, prepared to accept that it was a reference to the maintenance by trial counsel of propositions advanced by him to the trial judge which had been rejected, or perhaps not acted upon, by the trial judge in his summing-up.

7 Counsel at trial sought a direction with respect to the fragility of childhood memory based on the observations of McHugh J in Longman at 107-108. This reasoning, and the similar observations about fantasy by Deane J, are not part of the Longman warning and have never received authoritative acceptance. (See JJB v Regina [2006] NSWCCA 126 at [2]-[8].) This aspect of the direction sought by trial counsel was not raised on appeal.

8 Other than in this respect, the request by trial counsel for a Longman warning was expressed as follows:

“ … the inconvenience occasioned to the accused in the defence of the matter” (T 25/2/05 p35 l 57- p36 l 1)
“ … it is dangerous to convict … As a result of the delay, he is unable to put forward his defence in the same way as he would’ve been had he been aware of the allegation at a more proximate time …” (T 25/2/05 p36 l 15- l21)
“… there should be a Longman direction in respect of the inconvenience and difficulty … caused to the accused by the delay in complaint and that your Honour would direct the jury that in the circumstances it would be dangerous to convict.” (T 25/02/05 p 40/22 – 27)

9 Reference was also made to the “checklist” in R v BWT (2002) 54 NSWLR 241, which I assume is a reference to the passage in the judgment of Sully J at [95] in his Honour’s subpar [3] at pp272-275. (Not Wood CJ at CL as recorded.) Trial counsel relied on this lengthy extract by the words “if I could refer to the checklist” (T 25/02/05 p 40 l 35). Such a reference does not indicate with any clarity what, if anything, was sought.

10 The Crown Prosecutor at trial responded by challenging the necessity to use the words “dangerous to convict” and, in this respect, it is clear that his Honour did not accede to trial counsel’s submission and, accordingly r 4 does not apply. I am not, however, satisfied, that any other matter raised in the submissions or in the judgment of Adams J was so raised and r 4 may apply.

11 With respect I do not agree with Adams J that it was clear that in relevant respects his Honour had taken a different view from the submissions of trial counsel on the Longman warning. Nor do I agree that his Honour’s inquiry as to whether there was ‘anything else’ did not encompass a reference to any aspect of the Longman warning. There does not appear to me to be any basis for this interpretation.

The Appellant’s Submissions

12 The Appellant’s fundamental submission was that his Honour’s summing-up was inadequate to satisfy the requirement of an imperative judicial warning with respect to the effects of delay.

13 The first submission was to the effect that certain words that his Honour used were such as to trivialise the issue of delay. First, reliance was placed on his Honour’s reference to the proposition that in “a perfect world … ideally, a crime ought to be reported instantly”; secondly reliance was placed on the observation that, if prompt complaint occurred, there would not be many trials because crimes could be readily proven or the accused would readily know what was alleged. A third matter said to reduce the significance of the disadvantage occasioned by delay was his Honour’s use of the words “what is called ‘forensic disadvantages’”.

14 Each of these references must be understood in the context of the trial, the submissions and the whole of the summing-up. The requirements of a Longman warning, as strictly interpreted in the judgments of this Court, are such that there is an open invitation to counsel for an offender to seek to parse and analyse the summing-up in the manner that the Appellant’s submissions do in this case. This is a temptation that ought be resisted. Notwithstanding the requirement of a Longman warning, it is still important to understand the whole of the context.

15 When his Honour went on to list the disadvantages of delay, which had been the subject of detailed submission by counsel for the accused, his Honour did not express those disadvantages in language of potentiality. He expressed the disadvantages in terms of actual detriment. On several occasions his Honour used the formulation “he lost the opportunity” to check or adduce evidence about various matters. Indeed, the critical passage, when his Honour purported to act in accordance with the requirements of Longman, commenced with the reference to the “disadvantages which the accused has suffered because of the delay”.

16 If the effect of his Honour’s terminology, upon which reliance is placed on appeal, had the consequence of in any way downgrading or trivialising the Longman warning, counsel at trial should have taken the point. This is not a matter upon which the attempt by counsel to reserve a position with respect to his own submissions on the Longman warning, which had not been taken up by the trial judge, can have an effect. These are particular matters of the terminology his Honour happened to use.

17 Rule 4 does apply to matters of this character and I would refuse leave. In any event, even if I had been minded to grant leave I would have rejected the submission by reason of the fact that, in the overall context, the references did not have the effect of trivialising or downgrading the effect of the warning.

18 The second matter on which reliance was placed was the proposition that at no stage did his Honour specifically “warn” the jury of the real disadvantages that the accused had suffered by reason of the delay. In this Court, in contrast with the position in Western Australia, a strict approach has been taken to the requirement that what must be conveyed to the jury is a “warning” in terms. (See R v BWT (2002) 54 NSWLR 241 at [95]. The other case law is referred to in R v WSP [2005] NSWCCA 427 at [3] and [77]-[85].)

19 The relevant passage in the judgment in this case does not commence with a description of itself as constituting a warning. The words of introduction are “I am required to … tell you that it would be unsafe to convict …”. Nevertheless, a few lines later, in the body of what the jury is being instructed to do, the instruction is characterised as a “warning” in the words “and having borne this warning in mind …”. Finally, in a matter also relied by the Appellant, his Honour used the word “caution”, which word was said not to be adequate in BWT, when his Honour said, by reference back to the instruction, “I do not think there is any more in the way of cautions that I am required to …”.

20 Again this is a matter which counsel failed to raise in the context of the trial. Again it is not a matter to which counsel’s own prior submissions were of any relevance. I would refuse leave under r 4.

21 Again if I had granted leave I would have rejected this ground of appeal on the basis that his Honour’s use of the word “warning”, even in the particular place that it was deployed, was sufficient to satisfy the requirements of a Longman warning.

22 This Court should not extend the analysis in BWT to a situation where the judge does describe what is being conveyed as a “warning”, albeit not perhaps at the correct grammatical point. In my opinion, enough was said by his Honour to tell the jury that what his Honour was doing was giving them a “warning”.

23 The next basis upon which the Appellant submitted that the warning was inadequate was the failure to use the words “dangerous to convict” and in lieu thereof employing the words “unsafe to convict”. The Appellant submitted that the use of the word “unsafe” failed to transform the directions into an emphatic warning. The stronger terminology of “dangerous” was required.

24 For the reasons indicated above, r 4 does not apply to this submission.

25 Shortly after BWT, in R v Kesisyan [2003] NSWCCA 259, this Court, with the express agreement of Sully J, held that no specific words are required in a Longman warning. (See at [8], [20]-[21], [23].)

26 The issue in this case is similar to that which arose in WSP supra. The basic structure of the Longman warning is “dangerous to convict unless …”. In WSP the trial judge had used the formulation “you could only convict the accused if …”. I was of the opinion that the requirements of the Longman warning were satisfied. However, I was in dissent on this matter.

27 WSP does not determine the present case, where the relevant formulation is “unsafe to convict” instead of “dangerous to convict”. I do not doubt the force of a warning expressed in terms of “dangerous to convict”. (See my judgment in Robinson v R [2006] NSWCCA 192 and the observations to similar effect by Sully J in BWT at [118].) Nevertheless, similar force can be attributed to the words “unsafe to convict”. Either formulation, in my opinion, carries the danger identified in Robinson that the jury would regard the direction as in substance an instruction by the judge to acquit. Some jurors may very well regard “unsafe” as more forceful than the direction expressed in terms of “danger” and others may take the opposite view. In substance, in my opinion, there is no material difference. I note that in Doggett v The Queen (2001) 208 CLR 343 at [10] Gleeson CJ expressly indicated that the formulation “unsafe to convict” was equivalent to “dangerous to convict”. This submission should be rejected.

28 The final submission put on behalf of the Appellant was that his Honour ought to have set out each of the examples used by trial counsel identifying the disadvantages in the conduct of his defence which the Appellant suffered by way of reason of delay. As indicated in the full extract set out by Adams J, his Honour outlined a number of specific matters which constituted disadvantages. No complaint is made of that. It was submitted that it was inadequate for his Honour to simply incorporate by reference the other examples used by trial counsel.

29 In order to comply with the requirements of a Longman warning it is not necessary for the trial judge to identify every conceivable disadvantage that could have been suffered. It is sufficient to do what has happened in this case, namely to focus on specific examples of disadvantage, even hypothetical ones, and to indicate that there may have been other disadvantages. His Honour did so by reference to submissions that the jury had just heard.

30 In identifying these matters his Honour satisfied, in my opinion, a critical aspect of the Longman warning, i.e. to identify the reasons why the warning is given, namely, because the accused has been prejudiced by the delay.

31 It is not necessary for the trial judge to add the weight of a judicial adoption of submissions to every kind of disadvantage that was or may have been suffered in a particular case. It is, however, essential that judicial weight be brought to bear for the proposition that there were such disadvantages and that that was why it was necessary to give a warning of the character that was given. In my opinion, in this respect also, his Honour did not fail to comply with the requirements of Longman.

The Judgment of Adams J

32 In his judgment, which I have read in draft, Adams J identifies four shortcomings in the Longman warning, as follows:

(i) The trial judge did not explain to the jury that the warnings arise because of the experience of courts about the difficulties faced by accused persons in defending a case.

(ii) A suggestion by the trial judge that problems in this case were typical of criminal trials and this trial was no different from the common run of case.

(iii) There was no reference to the difficulties faced in testing by cross-examination and in assessing the credibility of a witness able to resort to failure of memory in respect of inconsistencies or lapses of memory.

(iv) That the warning was limited to Counts 1, 2, 3 and 5.

33 With one possible exception, these were not submissions put on behalf of the Appellant in this Court. Furthermore, none of these propositions was advanced at the trial. None fell within trial counsel’s “guarded response”, because none were contained in his original submissions. In each case, in my opinion, leave under r 4 should be refused. In any event, because no such submissions were put in this Court, the appeal cannot be allowed on any of these grounds.

34 The exception to which I have referred relates to an exchange during the course of the oral argument when Adams J put forward the proposition identified as (iii), namely the reference to the difficulty of testing adequately the evidence of the complainant, to counsel for the Appellant in this Court. His Honour then said: “That’s the nub, that’s where everything comes into focus and that focus was not provided here. Whether in substance it was is another matter, but it wasn’t given in [terms].”

35 In response to this, counsel for the Appellant said: “That’s certainly, in substance, our complaint”.

36 This response does not, in my opinion, adopt, as a submission, the way in which Adams J put the proposition. Rather, it constitutes a reiteration of the submissions already made. However, that characterisation was not one which the Appellant’s submissions could bear.

37 A direction of the character identified by Adams J could have been given. Perhaps it should have been. However, in exercising the discretion under r 4, I note that it cannot be said that this particular issue was a matter of which the jury was entirely unaware.

38 At the beginning of the relevant passage of directions, where his Honour was referring to the hypothetical situation of a “perfect world” in which crimes were reported instantly, his Honour expressly told the jury that:

“The accused would have the advantage of being able to test immediately all the circumstances of the allegation made against him.”

39 This formulation clearly reflects the observations made by trial counsel in his address to the jury:

“ … what has happened is that … the accused’s opportunity to properly test the allegation made against him is being lost …” (at T51.27)

40 As I have indicated, no submission in the form identified by Adams J was made at trial either in submissions or by way of a request for redirection. Leave under r 4 should be refused even if, contrary to my opinion, the answer to Adams J by counsel appearing on the appeal should be understood as an adoption of the submission.

41 The matter to which I have referred as (ii) above from the judgment of Adams J was raised in the Appellant’s submissions, but in a different way to that propounded by his Honour. As I have indicated above, the trial judge’s references to how in ‘a perfect world’ all crime would be reported instantly was relied upon as downgrading the force of the Longman warning. It was not relied upon as in some way stating that these problems were either typical of criminal trials or that this trial was no different from the common run of cases. In any event, I am not satisfied that the judge’s direction can be understood as suggesting that this case was in any way “typical”. He went on to identify and emphasise the length of delay that had actually occurred.

42 As to proposition (iv), Adams J concludes that the warning given in purported compliance with Longman was restricted to Counts 1, 2, 3 and 5 and did not apply to Count 4. This appears to turn on the reference in his Honour’s summing-up to “a case where there is only one witness”. This introduction to the Longman warning occurred immediately after his Honour distinguished between the counts by reference to the corroboration of Count 4.

43 In the course of submissions, the trial judge at first expressed a doubt as to whether a Longman warning was required in a case where there was corroboration. However, the Crown Prosecutor conceded that the judgment of Gaudron and Gummow JJ in Doggett v The Queen supra, indicated that corroboration did not obviate the need for a Longman warning and his Honour appeared to accept that proposition (T 25/02/08 p41 line 57 - p42 line 4). I agree with Simpson J that that is the effect of Doggett. It does not appear to me to be correct to conclude that his Honour maintained his original position that Count 4 should not be the subject of the Longman warning.

44 It is possible that his Honour’s direction about delay could have been understood by the jury as not extending to Count 4. I have strong doubts whether this would have been the case, but it is unnecessary to decide it. This issue was not raised in the submissions for the Appellant to this Court.

Conclusion

45 In my opinion, the appeal should be dismissed.

46 SIMPSON J: I have read in draft the judgments of the Chief Justice and Adams J. Their Honours are at odds in a number of respects. It is therefore necessary that I express my views with respect to the issues. Since the sole ground of appeal is really a narrow one, I can do so concisely.

47 The ground of appeal pleaded asserts the inadequacy of the direction, given by the trial judge, in respect of disadvantage accruing to the appellant in defending charges by reason of delay in his becoming aware of the allegations against him. The requirement for such a direction derives from the decision of the High Court in Longman v The Queen [1989] HCA 60; 168 CLR 79. The principle has, however, since Longman, had a long and rather troubled history.

48 Longman was a case in which the delay in bringing an accusation against an accused person was of more than 20 years in the case of the most recent allegation, and more than 25 years in the case of the earliest of the allegations. The case arose under the provisions of s36BE(1) of the Evidence Act 1906 (WA) which (if I may paraphrase) specifically abolished any rule or practice that might otherwise have required a judge to warn a jury that it is unsafe to convict an accused person charged with a sexual offence on the uncorroborated evidence of the complainant; and expressly prohibited the giving of such a warning unless the judge was satisfied that it would, in the circumstances, be justified.

49 The High Court held that the provision did not preclude the giving of a warning in appropriate circumstances. In that case, and relevantly for present purposes, the delay of 20 to 25 years in bringing the allegations deprived the accused person of the opportunity (in the words of the majority):

“… 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.”

The majority therefore held that the jury should have been told:

“… as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy.”

Their Honours held that to leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.

50 Longman was followed by Crampton v The Queen [2000] HCA 60; 206 CLR 161. There the delay in the making of the allegations was 19 years. The direction to the jury was, initially, in these terms:

“Late complaint, of course, necessarily has some potential disadvantages to the accused because it reduces his opportunity to explore the matters complained of in some ways or it has that potential. First of all, of course, memory of events tends to decrease and become vaguer.”

51 That direction was immediately followed by an observation that the response of the accused to the allegation was a simple denial: a denial that the offence in question occurred, and a denial that there was ever any opportunity for it to have occurred, or any occasion on which a misunderstanding could have arisen. (This the majority in the High Court – Gaudron, Gummow and Callinan JJ – described as an observation which could have diminished the effect of the initial caution.)

52 The trial judge immediately went on to direct the jury that two specific matters arise when there is a delay in complaint: the loss of the opportunity in the accused person to examine surrounding circumstances, and a reduction in the capacity of the complainant to be accurate. She also raised the possibilities of the creation of greater difficulty in cross examination of the complainant, and that the delay could explain errors in their recollections.

53 At the request of counsel for the accused person the trial judge then gave additional directions, to the effect that the jury must take into account the very long period in which there was no complaint, and referred to questions of motive, the opportunity to concoct and the reasons why that might have been done. She directed the jury to look very carefully at the nature and circumstances in which the complaint ultimately came to be made.

54 The directions as a whole, the High Court held, said:

“… too little, too unemphatically, and less than what Longman required to be said in the circumstances of this case.”

The majority held that the trial judge should have instructed the jury :

“… that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant.”

55 Their Honours held that the trial judge should not have offered the qualification that she did in relation to the remarks about delay. In this their Honours were clearly referring to the observation that the response of the accused was an outright denial of the allegations – suggesting, perhaps, that where outright denial is the response, the adverse consequences of delay might be less than in some other (unspecified) circumstances.

56 The majority in the High Court said:

“…the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions.”

and:

“Almost all of the passage of the majority in Longman [which their Honours extracted and is to be found at 168 CLR 90 – 91] (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. 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.”

57 A great deal has since then been written about the nature and fundamental features of the warnings required by Longman in cases of delayed complaint: see, by way of sample, R v Johnston (1998) 45 NSWLR 362; R v BWT [2002] NSWCCA 60; 54 NSWLR 241; R v Kesisyan [2003] NSWCCA 259; R v SY [2004] NSWCCA 297; and R v DRE [2004] NSWCCA 305.

58 Doggett v The Queen [2001] HCA 46; 208 CLR 343 established that the requirement for a Longman direction was not limited to the circumstance where a complainant’s evidence is uncorroborated.

59 Although many may have made the attempt, no definitive statement of the minimum requirements of a Longman direction has yet emerged. In particular, there is no unanimity, and no definitive decision, on whether the principle mandates the use of the formula “dangerous to convict” and whether “unsafe to convict” is its equivalent.

60 In my opinion this appeal ought to be approached on the basis that a Longman or Crampton direction should be tailored to the factual circumstances of the case in which the question arises. Whether any direction concerning the effects of delay on the capacity of the accused to defend himself or herself is adequate will depend upon the infinite variety of circumstances that go to make up the facts of a criminal trial.

Rule 4

61 The Chief Justice and Adams J take different views as to whether by reason of Rule 4 of the Criminal Appeal Rules the appellant requires leave to argue this ground.

62 At the conclusion of the Crown Prosecutor’s address to the jury the trial judge asked defence counsel to identify any particular directions that he sought. Defence counsel succinctly replied:

“A Longman direction your Honour.”

There followed a lengthy discussion – covering seven pages of transcript – concerning the direction sought. In part this focussed upon whether a Longman direction was appropriate only in cases where the prosecution evidence is uncorroborated. (That issue was laid to rest in Doggett .) At an early stage in the discussion, the trial judge asked:

“Well, a Longman direction in relation to what then?”

63 Defence counsel responded by identifying “two aspects”. The first he encapsulated as:

“… the inconvenience occasioned to the accused in the defence of the matter …”

and the other as:

“… in relation to fantasy …”

64 This last, I assume, was a reference to a passage in the judgment of Deane J in Longman which is in the following terms:

“The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. 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. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant's evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinized with very great care indeed.” (p 101)

65 All that occurred on Friday 25 February 2005. On Monday 28 February 2005 the trial judge proceeded to sum up. In relation to delay, he did so in the terms that have been set out in full in the judgment of Adams J. He made no reference to the possibility of “fantasy”. No argument was advanced on appeal that this gave rise to error.

66 At the conclusion of the summing up the judge, in the conventional way, invited counsel to seek any further directions or corrections. Defence counsel expressly said that he had no application other than those he had raised the previous Friday. The judge responded by saying:

“Right, okay. And nothing else at all?”

He again asked if there was “nothing else”. There was not.

67 In my opinion Rule 4 does not require counsel to persist in an application for a direction which he or she may justifiably consider has been refused. In my opinion such a view here was certainly open to defence counsel. It may be that he could have pressed the judge further, and in more detail, after the directions were given, and when it appeared (if indeed it did so appear) to counsel that the direction was inadequate. However, in my view counsel discharged his obligation. I would interpret his reference to the argument of the previous Friday as a cryptic repetition of his application and an acknowledgment that it had been unsuccessful. Rule 4 does not apply.

The appellant’s arguments on appeal

68 In written submissions senior counsel for the appellant set out comprehensively and clearly the “errors and deficiencies” he identified in the directions extracted. Six specific errors and deficiencies were proposed. These were (my paraphrasing, adopting counsel’s numbering system):

(a) and (b) the opening passage of the direction, in which his Honour suggested that “in a perfect world …” crime would be reported instantly and allegations of crime could be easily determined;

The opening passage was characterised as “a lengthy preamble” which:

“diluted the requirement for an emphatic judicial imprimatur and represented a clear danger that the jury would regard issue of delay as trivial, or at least less important than indeed it was”


and to “trivialise” the issues calling for a clear warning;

(c) the reference to disadvantages caused by delay as:

“… what are called ‘forensic disadvantages’”
The submission that was made was that this also tended further to reduce the significance of what were real and not merely technical factors of disadvantage;

(d) the absence of any express “warning” and the use instead of the phrase:

“… but I am required to remind you of these disadvantages …”
and
“… tell you that it would be unsafe to convict in those circumstances …”
The criticism that was made was of the use of the word “unsafe” as insufficient to transform the directions into an emphatic warning;


(e) the failure of the trial judge to make specific reference to each of the ways in which, in his address, defence counsel had identified that delay had disadvantaged the appellant. His Honour declined to mention each of these, having referred to some, and having referred more globally to the defence address;

(f) the use of the word “cautions” which was, it was submitted, inadequate to meet the requirement of “warning”.

69 The effect, it was argued on behalf of the appellant, was that the directions failed to convey warnings with the emphatic and necessary judicial imprimatur.

70 I now set out, in abbreviated form, the four shortcomings identified by Adams J. These are:

(i) the failure of the judge to draw to the attention of the jury the experience of the courts in recognising difficulties faced by an accused person in defending a long-delayed allegation;
(ii) the suggestion (if it can indeed be drawn from the direction) that the problems mentioned are typical of criminal trials, and therefore that the present trial was no different from others in this respect;
(iii) the use of failure of memory (in the complainant) as an explanation for inconsistencies or other deficiencies in his evidence;
(iv) the limitation of the warning to those counts on which the evidence of the complainant was uncorroborated.

71 When the appellant’s arguments are set against those perceived shortcomings it can readily be seen that the Chief Justice’s conclusion that the bases on which Adams J would allow the appeal bears no relation to the argument that was advanced on behalf of the appellant.

72 The appellant was represented on the appeal by very experienced senior counsel who had prepared careful written submissions. It is not the role of this Court to remodel the case made on behalf of an appellant. I agree with the Chief Justice that the four proposed “shortcomings” ought not to be accepted as the basis for the success of the appeal. They were not raised by the appellant. They were therefore not argued. Accordingly, this Court has not had the benefit of any response by the Crown.

73 It is necessary to deal with the appellant’s own case. The real issue is whether the direction, as a whole, failed to meet the demands of Longman and Crampton. In applying that test it is necessary to consider each of the “errors and deficiencies” asserted on behalf of the appellant. I will continue to use the appellant’s numbering system.

74 (a) and (b): I do not accept that the introductory passage to the directions concerning “a perfect world” could be seen as trivialising the issues relevant to delay. Although it does not seem to me that that part of the direction added anything of value, it did not do any harm.

75 (c): Nor do I think that the reference to “what are called ‘forensic disadvantages’” reduced the significance of the direction. The disadvantages to which his Honour made reference were, indeed, “forensic disadvantages”.

76 (d): The complaint here appears to be twofold: the use of the word of “remind” in place of the word “warn”; and the use of the word “unsafe” in place of the word “dangerous”. Specifically, the complaint was that the terminology adopted was insufficient to give the necessary emphasis to the subject matter of the caution.

77 I do not accept this criticism. The judge placed emphasis upon the practical effect of the delay – he identified a number of specific practical disadvantages that accrued to the appellant – for example, the inability to raise an alibi defence, and the loss of employment records which might have established whether the complainant’s mother had or had not worked at any relevant time. This was of far more significance than a fine distinction between words which differ only by gradation.

78 (e): In the fifth “deficiency” identified by counsel for the appellant, the complaint appears to be a failure to repeat matters that had been raised by trial counsel. No specific matter was itemised.

79 The difficulty with the proposition for the appellant is that counsel’s address was also put in a somewhat generalised fashion. He did make reference (as did the trial judge) to the inability to raise an alibi defence; he did make reference to the loss (by fire) of the mother’s employment records; and he postulated that, had the complaint been made at an earlier time, the appellant may have been able to defend the allegations by reference to events and circumstances that existed at the time alleged by the complainant as the time of the commission of the offences. Other than that, the address was framed in general terms. In my opinion it was adequately picked up and reconveyed in the directions given by the trial judge.

80 (f): The complaint here made appears to be of the same nature as that made in (d): a complaint about the force of the language used – “cautions” instead of “warnings”. In my opinion it must meet the same fate as that complaint.

81 I have read and reread the direction as a whole. I have come to the view that it adequately brought home to the jury the disadvantages suffered by the appellant by reason of the delay in the bringing of the allegations.

82 I would therefore join in the order proposed by the Chief Justice and dismiss the appeal against conviction.

83 ADAMS J: On 28 February 2005 the appellant was convicted of five counts involving a child –

Count 1: Between 1 August 1996 and 28 February 1997 at Toormina the appellant assaulted the complainant (an offence contrary to s 61 of the Crimes Act 1900);
Count 2: Between 1 August 1996 and 28 February 1997 at Toormina the appellant assaulted the complainant and at the time of that assault committed an act of indecency upon the complainant who was then under ten years of age (an offence contrary to s 61M(2) of the Crimes Act 1900);
Count 3: Between 1 August 1996 and 28 February 1997 at Toormina the appellant had sexual intercourse with the complainant who was under ten years of age (an offence contrary to s 66A of the Crimes Act 1900);
Count 4: Between 1 August 1996 and 31 August 1998 at Toormina the appellant had sexual intercourse with the complainant, a child under the age of ten years (an offence under s 66A of the Crimes Act 1900);
Count 5: Between 1 September 1999 and 16 November 1999 at Kungala the appellant assaulted the complainant and at the time of such assault attempted to commit an act of indecency upon him, he then being under ten years of age (an offence contrary to s 61P of the Crimes Act 1900).

84 The appellant was sentenced to various terms of imprisonment but these are irrelevant to the present appeal. The appellant’s sole ground of appeal is that the trial miscarried as a result of the failure of the trial judge adequately to direct the jury in relation to the significance of delay in complaint.

FACTS

Introduction

85 The complainant was born in 1990 and his sister (AB) a little over five years earlier. The complainant’s mother (CD) separated from the father of the children in 1994 although she and the children continued to live at their home in Toormina. About half way through 1996 CD commenced a relationship with the appellant, who became a regular visitor at the house and sometimes stayed overnight. In January 1997 the appellant moved into the house. In December 1996 CD commenced work as a waitress at a local restaurant, working between two and five nights a week. Either the appellant or a neighbour who lived across the road looked after the children while she was working.

Counts 1, 2 and 3

86 The complainant’s evidence was that the acts comprising the first three counts in the indictment occurred on the same day and that this was the day upon which the appellant moved in with his furniture. CD thought that this date might have been 14 January 1997. The appellant’s evidence was that it was 28 January 1997, a date which he was able to fix by reference to an invoice on the storage company with which he had left his furniture and from which he had collected it when he moved into CD’s house. Amongst the items he brought with him were a TV and video cassette recorder which were ultimately put in the main bedroom which he shared with CD.

87 The complainant said that he did not remember how it was that he ended up in the bedroom with the appellant. In the previous trial, the complainant said that he had gone into the bedroom willingly. When the complainant gave evidence at the earlier trial in July 2003 he said that he had gone willingly into his mother’s bedroom on the first occasion when the appellant asked him to. He did not resist in any way. At the committal proceedings in September 2001 when he was asked how he ended up in his mother’s bedroom, the complainant’s answer was, “He took me in by the arm”. He was asked, “Did you resist or did you try not to go into the bedroom?” and answered, “Yes, I resisted”. He was asked, “How did you resist?” and answered, “I tried saying no and pulling my arm away”. In the face of this evidence the complainant said, “It was a long time ago as well”.

88 The complainant’s evidence was that the appellant showed him a pornographic movie depicting two men engaged in anal intercourse. The complainant said that the pornographic video was a black and white movie with two men having anal intercourse set in a church or what looked like a church. In his evidence in the committal proceeding in December 2001 the complainant said that the movie was of men and women having sex. He said there was only one movie and it did not involve men having sex with men. When taken to this evidence at the trial the complainant responded, “I must have got that confused with another movie”. When asked how it was that the accused had wanted him to do what the men were doing on the video the complainant said, “Sorry I must have got that video mixed up with another video another time”. However, his answer at the committal proceedings was, “He meant to do it but to a guy instead of a girl”. The complainant was unable to explain this evidence and said that he must have confused it with one of the other times.

89 The complainant said that the appellant got some gel from a bottle with a dispensing nozzle from his mother’s wardrobe but he said that it was of a aqua or “greeny” colour. He said he thought it was called “Satin gel” or “Satan gel”. He said that the appellant put the gel on his penis and also on his anus.

90 The complainant was unable to recall whether the TV and video were up on the wall or just on a stand on the floor, although he recalled at a later stage it was attached to the wall on a metal arm. He did not recall where the television was in respect to the bed. He said that the appellant got on his hands and knees, “and told me to do what the people in the video were doing” and that “after that I think I did, I don’t remember exactly”. The complainant said that he didn’t “remember the whole lot, I only remember like bits and pieces – at one stage he held me down on the bed and played with my penis in his hand”.

91 Whether the move occurred on 14 January, as CD thought, or 28 January, as the documentation suggested, was obviously important. The complainant said that the offences occurred at night when his mother had gone to work and he thought his sister may have been at a friend’s house. Amongst other things, whether CD was in fact working on the night of the move and whether AB was away from the house that evening would have been significant, possibly crucial, facts. CD thought that the TV and video were set up immediately in the bedroom with the other items brought by the appellant to the house being in the lounge room until they could be sorted for a garage sale of the excess items. CD expressed some uncertainty about when the TV and video were set up. The appellant’s evidence was that the TV and video had been moved to the bedroom and were sitting on a small chest of drawers, but that they were not actually set up until he had built a wall arm for the TV and run a co-axial cable under the floor to the aerial. CD did not recall the unit. Having regard to the identification by the complainant of the date of the appellant’s move as being the evening on which the first three counts occurred, whether the TV and video player were in the bedroom on that evening was crucial because it was an integral part of the complainant’s evidence that the appellant asked him to do to him what was being shown on the TV.

Count 4

92 Count 4 occurred, according to the complainant, a few months after the first occasion. Again, it was in the main bedroom and involved a pornographic video (depicting heterosexual activity). Again, the appellant made the complainant put his penis into the appellant’s anus and move it in and out, having first applied gel. The complainant said that he heard his sister coming and told the appellant. The appellant told him to put his pants back on and AB then came to the doorway. The complainant was still squatting behind the appellant at this time and asked, “What are you doing?” The appellant said that the complainant was, “Cracking his back”. AB asked what the video was and the appellant replied, “It’s a porno”. He then said to her, “Here, you crack my back, you’re heaver”.

93 The complainant’s evidence of this event was supported by AB’s evidence. AB said that she recalled an occasion when her mother was away from the house working and the appellant and the complainant were at home when the appellant suggested that she should have a long bath. AB said that she had a short bath and dressed herself and then walked down the hallway towards the main bedroom and opened the door. She said she saw the appellant naked on the bed on his hands and knees facing the television with his tracksuit pants around his ankles and the complainant on the bed as well kneeling behind the appellant. There was a pornographic movie playing on the television. She said the complainant was very close to the appellant but although he jumped away very quickly she saw his penis. She said he jumped off the bed onto the other side. AB asked what they were doing and the appellant said something to the effect that the complainant was trying to crack a disc in his back because it was out of place or sore. She said the appellant then moved over to the edge of the bed with his feet on the floor and asked AB to push his back because the complainant was not strong enough to do so. She said that she pushed on his back. She noticed that the complainant had put his shorts back on. AB said that she asked her brother what had happened and he said, “Nothing” and that she did not discuss the matter further with him. She did not tell her mother because she said she was frightened of the appellant. The complainant said that he did not remember whether he saw his sister again that night after he left the room.

94 In the Magistrate’s Court the complainant had said that when his sister entered the bedroom the appellant had his pants fully on. In the trial the complainant’s evidence was that just before his sister entered the room his pants were at his ankles. When he told him she was just behind the door he quickly pulled them up and told him to put his on. At the earlier trial, in December 2002, the complainant was asked about what the appellant was wearing before the appellant went into the bedroom. The complainant said that it was a white robe like a bathrobe. AB told police that she could not say whether the complainant’s pants were up or not.

Count 5

95 The fifth count was an occasion again in the main bedroom, AB and CD being in the lounge room at the time, when the appellant came into the room, shut the door and lay on the bed next to the complainant, offering him money if the complainant would let him touch his penis. The complainant refused and moved off the bed. At some stage, the complainant said, the appellant reached over with his hands towards the complainant’s penis and the complainant slapped his hand away.

Other matters

96 I do not propose to set out the detail of what I might call the contextual evidence dealing with other sexual conduct since this does not seem to me to be useful in the present context. Some other matters, however, should be mentioned, not so much because of their intrinsic importance but because they pointed to the potential prejudice suffered by the appellant because of delay. Thus, the complainant said that the appellant used gel as a lubricant, applying it both to the complainant’s penis and the appellant’s anus for the purpose of facilitating anal intercourse on a number of occasions. It was conceded that a plastic container of gel lubricant with a dispenser top was in the main bedroom, as described by the complainant. He maintained that the gel was green whereas it was undisputed that it was clear. This discrepancy was explained away by the Crown as simply a failure of recollection because of the passing of time. In respect of the kinds of pornographic videos available – and it is undisputed there was a large number of them in the home – videos doing more than matching in a general way the description of the videos allegedly shown by the appellant to the complaint could not be identified.

97 The Crown prosecutor in his address to the jury conceded that there were a number of inconsistencies in the complainant’s evidence (arising chiefly out of his accounts to police, which I shall come to shortly) but submitted that the jury would bear in mind the complainant’s age and make some allowance for him in this respect and, in particular, “Remember the words that he said in relation to his discrepancies, he said, ‘I’ve been inconsistent because it happened a long time ago and I don’t have the best of memory’”.

The making of the complaint

98 The complainant told CD on 17 November 1999 that the appellant had been touching him but did not give any more detail than that. CD telephoned police but the first interview with police did not occur until 13 March 2000. Amongst other things, the complainant told the police officer that the appellant ‘had a big bottle of gel stuff” and, when asked what it was for he answered, “I don’t know. I think it was for him and mum”. He was asked whether it was ever used at any time by the appellant with the complainant and the complainant denied it. The complainant said in evidence that he had deliberately withheld saying that the appellant had used the gel because, “I didn’t think it was all that important, I wanted to move on with the more important stuff”. The next interview with another police officer occurred on 29 May 2000. During that interview nothing was mentioned about the appellant having used gel. The complainant was again interviewed in September 2001 and then mentioned the use of gel. The complainant gave evidence that the appellant had inserted a vibrator into the complainant’s anus and that this hurt a lot. However, he first made the allegation concerning the use of the vibrator in his statement to police of September 2001. He said that he just didn’t think of it when he made his March 2000 statement. In his March 2000 statement also, he did not mention the incident when his sister had walked into the room when he was with the appellant, saying that for the first time in the interview of September 2001.

99 The accused was interviewed by police about the allegations made by the complainant on 22 November 2000. He exercised his right to silence and declined to be interviewed. The appellant gave evidence that his solicitor issued a subpoena to CD’s employer in an attempt to obtain details of CD’s employment prior to July 1997. However, a fire at the restaurant in February 1998 destroyed all their records.

Addresses to the jury

100 The Crown prosecutor did not refer to delay except as a mode of explaining the inconsistencies and failures of recollection of the complainant. Defence counsel referred on a number of occasions to the difficulties faced by the appellant because of the delay between the event and his being informed of the allegations. Counsel made a number of points –

· If the appellant had been told about the allegations in any timely way real investigations could have been carried out and evidence brought to show whether he was indeed at home on any particular occasion and whether he had an opportunity at the particular time to act as alleged.

· It may have been possible more precisely to prove when the television and video were brought into the bedroom and connected up.

· Employment records may have shown whether CD was working on the occasion of the first three charges.

· Evidence may have been available about the complainant’s demeanour and conduct towards the appellant at about the time the offences were allegedly taking place.

· The accused’s opportunity to properly test the allegations has been lost and he can do little more than what he in fact did, namely simply to give a generalised denial.

· The inconsistencies in the complainant’s evidence can be explained away by failure of recollection over time, which would not have been available had the complaints been made contemporaneously with the events.

Counsels’ submissions on directions

101 Mr O’Connor of counsel for the accused sought a direction in accordance with Longman v The Queen (1989) 168 CLR 79. The learned trial judge responded emphatically that the warning about the effects of delay required by Longman was confined to cases where the evidence of the complainant was uncorroborated. Mr O’Connor submitted that the warning as to the effect or potential effect of delay was not confined to cases where a complainant’s evidence was uncorroborated, citing Doggett v the Queen 208 CLR 343.

102 It seems to me, with respect, that Doggett left this issue in a somewhat uncertain state. Gleeson CJ considered that, in the particular case, a Longman warning was not necessary (pointing out, however, that the phrase “Longman warning” has a somewhat uncertain meaning) but his Honour seems to have accepted that a warning bringing to the jury’s attention the possible disadvantages to an accused person in preparation of his or her case was not excluded by the fact of corroboration. However, as it happened, his Honour thought that such a direction was not sought and its absence ought not to be permitted to be relied on appeal: Doggett 208 CLR at 349. Gaudron and Callinan JJ considered that the corroborative evidence led in the trial did not relieve the trial judge of the obligation to give a Longman direction citing uncertainties with the complainant’s evidence in some important respect and stating as a significant independent ground “the denial by the effluxion of time to an accused 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”: Doggett 208 CLR at 355-356. McHugh J considered that Longman did not require a warning of the effects of delay, even long delay on the ability of the accused to defend the charge: Doggett 208 CLR at 365, 368. Kirby J considered that the mere fact of corroboration did not make a Longman warning as to the effects of delay on the ability to prepare a defence inappropriate: Doggett 208 CLR at 378-380.

103 In R v BWT (2002) 54 NSWLR 241 Sully J (with whom the other members of the Court agreed) summarised the position, if I may respectfully say so, in a useful set of propositions at [95], noting inter alia, that the mere fact that evidence of the complainant was corroborated did not mean that the jury should not be warned about the effects of delay but simply that the appropriate direction might need to take into account that evidence of corroboration. His Honour described the framing of the satisfactory direction as “a much more fraught and difficult experience in a case where the particular complainant’s evidence does not stand entirely alone, but is supported, whether patchily or not, by some other evidence that is capable of being regarded reasonably as corroborative evidence” (54 NSWLR at 274).

104 The problem facing an accused where there has been significant delay is not reduced by the mere fact that one or more aspects of a complainant’s evidence is corroborated. After all, it is as vital to the defence to be able to test adequately the evidence of the corroborating witness as the evidence of the complainant. May I respectfully say that, although I entirely agree with his Honour’s summary of the position, I think for myself that compliance with the substance of the requirement will not, in the general run of cases, be made significantly more difficult where there is some support capable of being regarded as corroboration for a complainant’s evidence. I think that juries are well able to grasp the essence of the warning once the difficulty has been pointed out to them. It is part of ordinary human experience that recollections fail over time and that this is true for actual participants as well as witnesses or potential witnesses. I do not believe that juries find it difficult to comprehend that it may well be difficult to test and refute claims that are made some time after the events in question are said to have occurred. But this is not self-evident and the extent of the forensic disadvantage is unlikely to be appreciated by the lay mind.

105 Of course, the circumstances of each case vary and directions ought to be framed to assist the jury in understanding the potential significance of delay in the particular case. This will require, in my respectful view, a trial judge to inform the jury of the two features of the Longman warning emphasised by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362 at 371 –

“First, the jury is to be told why it is “dangerous to convict” namely, the delaymeant that the evidence of the complainant could not be “adequately tested”. Secondly, the jury is to be told how they should go about their task because of the identified danger namely, “scrutinize the evidence with great care”.

106 As Sully J said in BWT (2002) 54 NSWLR 341 at 273 –

“(a) The direction must be cast in the form of a warning. Any form of expression which is thought to have the character of a comment , or even a caution will not comply sufficiently with what is required by law.”
(b)…[A] trial judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: first , that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly , that it would be, therefore, dangerous to convict on that evidence alone; thirdly , that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its accuracy; fourthly , that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly , that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant’s evidence; and sixthly , that every stage of the carrying out of that scrutiny of the complainant’s evidence must take serious account of the warning as the dangers of conviction.
(c)…
The form of the warning must be such as bears unmistakably the imprint of the court’s own authority. It must be made clear that the foundation of that authoritative warning of the court itself is the accumulated experience of the courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably that not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggest that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated…”


(May I respectfully point out, in parenthesis, that the problem of significant delay is by no means confined to sexual assault cases. Wherever an allegation is made significantly after the event there is a forensic disadvantage in testing or refuting it.)

107 Lest it be thought that AB’s evidence as to seeing the appellant and the complainant in the bedroom on the occasion of the fourth count meant that the jury should not have been warned about the effects of delay, it is sufficient simply to point out that the Court of Criminal Appeal, dealing with the appellant’s first conviction upheld a ground of appeal that the trial judge failed adequately to direct the jury in relation to the significance of the delay in compliant. The principal judgment of the Court was that of Sully J, with whom the other judges agreed.

108 The Crown prosecutor submitted that the availability of corroborative evidence did not of itself obviate the need for a proper Longman direction although he submitted that it was a matter for the trial judge to consider whether the nature of corroborative material was such as to obviate the forensic disadvantage of delay and hence the giving of a Longman direction. The prosecutor did not submit either that a Longman direction should be given or not given but contended that his Honour did not have to use the words ”dangerous to convict”.

The judge’s directions

109 Before directing the jury, the learned trial judge sought submissions from counsel as to any particular directions that were sought. Mr O’Connor for the appellant asked for “a Longman direction…in relation to two aspects: one is the inconvenience occasioned to the accused in defence of the matter; and the other is in relation to fantasy.” Mr O’Connor sought “a direction along the lines that it is dangerous to convict [having regard to the delay]…and, as a result of the delay he is unable to put forward his defence in the same way as he would have been [able] had he been aware of the allegation at a more proximate time.” He repeated the substance of this submission somewhat later in the exchange with the trial judge and then said: “Your Honour, in addition to that, if I could perhaps refer to the checklist which Mr Justice Wood helpfully outlined in BWT” (a reference to R v BWT (2002) 54 NSWLR 241 at 250), which was then handed up.

110 Following a brief discussion of the roles of judge and jury, Freeman DCJ referred to his obligation to give “a full set of directions about the law” adding, “but that approach, that minimalist approach, if you like, requires that I give you a couple of warnings”. The first of those warnings was that his Honour did not intend to refer to all the evidence and the jury should not think that this meant that they should not consider the whole of the evidence. The second warning was to remind the jury that it was their responsibility to decide the facts and not his Honour’s. Having directed the jury that, where the Crown only has one witness upon which it can rely, “then, clearly, you have to look carefully at the evidence of that witness in order to make sure that it does satisfy you beyond reasonable doubt before you can bring in a verdict of ‘guilty’ against the accused” and that this “is particularly so where there is no support for the evidence of the sole witness”, his Honour identified the evidence of AB as possible corroboration in relation to count 4. His Honour pointed out that there was no supporting evidence in respect of the events covered by counts 1, 2, 3, and 5. His Honour then said –

“There is a further area upon which I need to give you directions in a case where there is only one witness and where there has been delay between occurrence of the alleged crime and its reporting.
Now, in a perfect world, I suppose all crimes would – well, in a truly perfect world there would not be any crimes at all – but, accepting that there would always be some, ideally, a crime ought to be reported instantly; the police should be involved immediately and investigations ought to start straight away and, if that were the case, if all crimes were treated in that fashion, then the Crown would have the advantage of contemporaneous evidence; the accused would have the advantage of being able to test immediately all the circumstances of the allegation made against him – you would probably find that we would not have many trials at all because either crimes could be demonstrated to have occurred or false allegations could be easily refuted by virtue of the fact that the accused knew what it was that he was dealing with as soon as it had allegedly occurred.
That did not happen in this case. There is a delay between early 1997 and a revelation to the mother in late 1999; the involvement of the police in March 2000; the ultimate revelation to the accused of the fact that these allegations had been made against him in late 2002 [ sic ], I think that was November, I am not sure, it might have been September, but it was late 2001; so that there is a delay between the alleged occurrence and him becoming aware of it and being given an opportunity to prepare himself to answer it, and that delay causes a number of what are called “forensic disadvantages.” The first, I suppose, most obvious one is in the nature of a sort of alibi, an ability to demonstrate that he was not there at the time, or that the opportunity, because the mother was always there, had not arisen, and so on. The opportunity to call that evidence has been lost because, as we know, the records relating to – what is her name?
O’CONNOR: [Place of employment]…your Honour.
HIS HONOUR: No, I was struggling to find [CD’s] name. Yes, I remembered [place of employment], but the records relating to [CD’s] employment at [place of employment] had been destroyed in a fire occurring in February 1998, that is before these allegations surfaced at all after they are alleged to have occurred, but before they were made known by [the complainant] to anyone and, particularly, a long time before they were made known by the police to the accused. So he lost the opportunity to subpoena records or to have records produced on subpoena which may have demonstrated that she was not at work during the relevant period between the day he moved in and the day of the garage sale. I suppose that is the relevant period. We do not know what those records would display. I am concerned only to remind you that he has lost the opportunity to show you what those records would have held. As well, he has lost the opportunity to identify people who would be in a position to make some comment about the appearance, behaviour of the young boy…and, consequently, in not being able to recollect years after the event who was around the house and who would have been in a position to make observations, he has lost the opportunity of cross-examining or calling those persons to say what they could have said casting light upon the behaviour of the child as to whether it was consistent and so on. So he has been disadvantaged in those respects. They were listed in several different ways by Mr O’Connor. I do not think there is any need for me to take you through them in extenso , but I am required to remind you of these disadvantages which the accused has suffered because of the delay, these lost opportunities and tell you that it would be unsafe to convict in those circumstances where there has been delay, on the unsupported evidence of the complainant …unless you are satisfied, having examined that evidence in detail with particular care and having borne this warning in mind, unless you were satisfied beyond reasonable doubt that he was telling you the truth, these things did happen in the way in which he said they happened. So that is delay. [Emphasis added.]
I do not think there is any more in the way of cautions that I am required to – oh, there is one other aspect of delay, I suppose, and that is that if there is a delay between the occurrence of an alleged assault and the reporting of that assault, then that delay is consistent with there not having been an assault to begin with. In other words, if nothing happens, there is nothing to complain about.”

111 His Honour identified the following particular forensic disadvantages –

(i) the inability to establish that the accused may not have been present at the time of any of the criminal acts;

(ii) the inability to obtain the records of CD’s employment; and

(iii) a lost opportunity to identify people able to give evidence about their appearance, behaviour of the complainant that might cast light on whether his behaviour was consistent with the allegations.

112 The disadvantages referred to by defence counsel were, in substance, those listed above with the additional (and, to my mind, very significant) matter that the delay was used by Crown to explain away the inconsistencies in the complainant’s evidence, which explanation the appellant, because of that delay, was unable to refute.

The ground of appeal

113 The sole ground of appeal, as I have mentioned, was that the trial judge failed adequately to direct the jury in relation to the significance of delay in complaint. The substance of the complaint was the contention that “the directions given in relation to the significance of delay in complaint do not comply with the essential elements of such a direction, in so far that the directions are not emphatic in tone or content and do not constitute proper or sufficient warnings as required at law”.

114 In his written submissions, Mr Craigie SC for the appellant submitted that the learned sentencing judge’s opening remarks, of which the reference to the “perfect world” was an example, diluted the requirement of an emphatic warning and, in effect, might have led the jury into thinking that the significance of delay was trivial or less important than it was. Mr Craigie also pointed to the immediately following passage in which his Honour referred to the likelihood that in this “perfect world” the prompt complaints would mean that there “would not be many trials” and added, as an example of what was said to be a dilution of the proper force of the warning, the reference to “what are called ‘forensic disadvantages’. In summary, it was contended that at no stage did his Honour specifically warn the jury of the real disadvantages, as distinct from reminding them that the appellant lost the opportunity to identify people who would be in a position to give relevant evidence and the other disadvantages that defence counsel had identified. Mr Craigie submitted that the particular disadvantages should have been specifically referred to by his Honour.

115 These submissions would have been more helpful if Mr Craigie had specified what directions he contended should have been given. In oral argument counsel relied in substance on his written submissions, adding –

“When one looks at the whole of the summing up, and that would appear to be the fairest test of its adequacy, both in its content and its tenor, the summing up simply fails to constitute a necessary judicial warning with the imperative nature that such a warning should have in order to properly equip a jury to approach the whole issue of delay in a matter such as this. My learned friend appears, if I understand his submissions correctly, to concede that indeed the summing-up could have been more vigorous in its character.”
SPIGELMAN CJ: He could have used the words ‘dangerous to convict’ and he could have used the word ‘warning’ in the relevant spot where it appears from Longman .’
ADAMS J: And it could have been pointed out that it was, as Longman expressly says and, indeed, as the Chief Justice said in Johnston, that the point of all this is the difficulty of testing adequately the evidence of the complainant. That’s the nub, that’s where everything comes into focus and that focus was not provided here. Whether in substance it was is another matter, but it wasn’t given in terms.
CRAIGIE: That’s certainly, in substance, our complaint. Moreover, its only a case of what was lacking but in some instances the structure of his Honour’s fairly brief directions was such as to diminish the force of those cautions as he called them, or comments, that he did give to the jury.
ADAMS J: Mr Craigie, those points are all made in your submissions and you’ve pointed us to the summing up. In the end, its really a matter for us to give a fair reading of the summing up.
CRAIGIE: I believe so…

116 Mr Craigie also submitted that, to the extent that Rule 4 of the Criminal Appeal Rules applied, the shortcomings in the summing up were so fundamental that leave should be granted.

Discussion

117 It seems to me, with respect, that there were four significant shortcomings in the directions to the jury. The first is that the learned trial judge did not explain to the jury that these warnings arise because of the experience of the courts as to the difficulties faced by the accused person in defending a case brought in such circumstances. Secondly, his Honour suggested that the problems in this case were typical of criminal trials and thus, implicitly, that this trial was no different from the common run of case. I am not sure that I would adopt the submission of Mr Craigie SC that the effect of these directions was to trivialise the warning but I think the submission, in substance, that these directions amounted to a substantial understatement of the significance of delay in the circumstances of this case is correct. Third, there was no reference to the difficulties faced in testing by cross-examination and in assessing the credibility of a witness able to resort to failure of memory in respect of inconsistencies or lapses in memory – a point specifically made by the Crown prosecutor in his address to the jury in relation to the complainant and applying also to the evidence of AB as to what happened in the bedroom. This was a most important consideration in this case, given the significant inconsistencies in aspects of the complainant’s evidence and that of his sister. Indeed, at the end of the day, this was the fundamental evidentiary basis for the defence argument that the jury would not accept the evidence of the complainant beyond reasonable doubt. Leaving aside the difficulty in testing their evidence, the temptation to use delay to explain away inconsistencies, which is of course one possibly available explanation, rather than focussing on the crucial question whether the evidence is sufficiently convincing, is a very strong one.

118 Where the accused has not been able to obtain reliable contemporaneous evidence and has, essentially, only his or her unsupported and general denial to rely on, the demonstration of significant inconsistencies in the complainant’s account assumes great significance. As I have said, delay is often a possible and even reasonable explanation for inconsistencies. But giving the benefit of the doubt to the complainant’s evidence is, in effect, to reverse the onus of proof. This is a real and substantial risk and requires the jury to understand that the focus must remain on whether the evidence of the complainant can be believed beyond reasonable doubt. Of course, if delay is only a possible or even a probable explanation for the demonstrated inconsistencies and it is still reasonably possible that the true explanation is that the evidence is wrong, the Crown will have failed to prove the charge. To my mind, the importance of this reasoning, which engages the onus and standard of proof in the starkest way, requires more than mere reference to counsel’s address. This was a crucial part of the defence case and the jury’s task. Clear and understandable directions as to how they should approach it in light of the onus and standard of proof and the evidence of delay were, to my mind, essential and should have been explicitly explained by the trial judge. Merely to refer in general terms to the problems caused to the defence by delay is insufficient: the significance or possible significance of the delay in the particular circumstances of the case and in the context of the evidence at trial must be explained.

119 This is hardly new doctrine. A number of the particularly relevant authorities are helpfully collected in the judgment of Spigelman CJ in R v Johnston (1998) 45 NSWLR 362. It is merely an aspect of the fundamental duty of a trial judge to relate the directions of law to the issues in the case.

120 Fourthly, the warning was specifically limited to counts 1, 2, 3, and 5. This is the substance of the qualification which I have italicised in the directions set out above. I would agree that its significance may have been missed by the jury but I do not see how this Court can proceed otherwise than by assuming that the jury paid attention to and obeyed the judge’s directions. Once the complainant was accepted in relation to count 4, the effect of warning in respect of the other counts must have been significantly weakened.

121 I agree that counsel did not give the learned trial judge the assistance which was necessary – and the duty lies on counsel both for the Crown and the defence – and that these particular matters were not the subject of submissions. However, in my view, the significance of delay was clearly raised as an issue to be addressed in directions. It is also true that, except for the lack of adequate emphasis point and the adopted reference to the passage in R v Johnson of Spigelman CJ at 371, counsel for the appellant in this Court did not articulate the omissions which I have identified.

122 Having regard to the problematical aspects of the complainant’s testimony to which I have referred (and which also troubled this Court in the earlier appeal) and the asserted failure of recollection about a very significant matter in the evidence of AB, it seems to me that the directions failed both in form and substance to give the warning that was required by the circumstances of this case, accepting as I do that no particular form of words is required. In the context, furthermore, I would not accept that the phrase “unsafe to convict” carries with sufficient emphasis the warning required to be given and which is conveyed by the phrase “dangerous to convict”.

123 Of course, the directions must be taken as a whole in light of the particular circumstances of the case and the addresses of counsel. In summary, I have concluded, with respect, that the learned trial judge did not adequately inform the jury either why it was dangerous to convict or that they must scrutinise the evidence with great care: see Johnston 45 NSWLR at 371.

124 Following the summing-up, the learned trial judge asked counsel whether any re-directions were sought. The following exchange appeared:

“HIS HONOUR: Yes, Mr O’Connor.

O’CONNOR: Your Honour, there’s nothing beyond the applications I indicated to your Honour on Friday in relation to the legal directions.

HIS HONOUR: Right, ok. And nothing else at all?

O’CONNOR: Nothing beyond that and nothing else.

HIS HONOUR: That sounds like a very guarded response, that’s it. Nothing else?”

125 (I rather think that the punctuation in the concluding passage is a little misleading. I think it should read: “That sounds like a very guarded response. That’s it? Nothing else?” The difference is not significant, however.) In my view, the response of Mr O’Connor to his Honour’s query was both appropriate and sufficient. It seems to me that his Honour took a different view to that for which Mr O’Connor had contended and that Mr O’Connor was submitting that he understood that this had been done and did not wish to add further argument. The reference by his Honour to anything else, to my mind, was not a reference to the Longman question but reference to any other aspect of the summing-up. That being so, Rule 4 of the Criminal Appeal Rules does not apply. I note, in this respect, that the Crown prosecutor in this Court did not suggest to the contrary.

Conclusion

126 I am of the view that the ground of appeal has been made out and the conviction should be quashed.

127 It was submitted on behalf of the appellant that, if the conviction were quashed, this Court should not order a new trial. If there had been no evidence capable of corroborating the complainant’s evidence, I would not have favoured an order for a new trial. However, whilst a verdict of acquittal would be entirely open to a jury in the particular circumstances of this case, I am not persuaded that such a verdict is so likely as to justify the entry of an acquittal by this Court. Whether there is to be a new trial should be a matter for the Director of Public Prosecutions to determine.

Proposed orders

128 I propose the following orders –

(1) the appeal against conviction be upheld;
(2) the convictions and sentences be quashed; and
(3) there be an order for a new trial.

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