IAB v The State of Western Australia
[2015] WASCA 238
•30 NOVEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: IAB -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 238
CORAM: MARTIN CJ
MAZZA JA
HALL J
HEARD: 12 OCTOBER 2015
DELIVERED : 12 OCTOBER 2015
PUBLISHED : 30 NOVEMBER 2015
FILE NO/S: CACR 209 of 2014
BETWEEN: IAB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 214 of 2014
Catchwords:
Criminal law - Appeal against conviction - Sexual offences - Longman direction - Whether direction given was sufficient to alert the jury to the forensic disadvantage resulting from delay - Whether prosecutor misrepresented the evidence in closing
Legislation:
Nil
Result:
Application for leave to appeal on ground 2 refused
Appeal allowed on ground 1
Convictions quashed and retrial ordered
Category: B
Representation:
Counsel:
Appellant: Mr P D Yovich
Respondent: Mr L M Fox
Solicitors:
Appellant: Morris Law Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457
Anderson v The State of Western Australia [2014] WASCA 137
Angliss v The State of Western Australia [2005] WASCA 162
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
EPD v The State of Western Australia [2011] WASCA 264
FJL v The State of Western Australia [2010] WASCA 8
KJM v The State of Western Australia [2013] WASCA 23
Liddington v The State of Western Australia [2005] WASCA 60; (2005) 152 A Crim R 502
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
SPB v The State of Western Australia [2012] WASCA 136
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
MARTIN CJ: My reasons for joining in the orders of the court allowing the appeal on ground 1, quashing the appellant's convictions on all counts and ordering a retrial coincide with those expressed by Hall J.
MAZZA JA: I have read in draft the reasons of Hall J. I respectfully agree with them, save for one matter in connection with ground 1.
With some hesitation, I agree that in the particular circumstances of this case, a Longman warning focusing on forensic disadvantage to the appellant was required with respect to count 8. The reason for my hesitancy is that I have some difficulty with the characterisation of the delay between the commission of that offence and when the appellant was put on notice of it as 'substantial'.
However, having arrived at the conclusion that a Longman warning was required in respect of count 8, it is, in my respectful view, unnecessary to decide the question on the basis set out in [42] of Hall J's reasons.
HALL J: This appeal against conviction was heard on 12 October 2015. At the conclusion of the hearing the court ordered that the appeal be allowed on ground 1, that the convictions on all counts be quashed and that there be a retrial. The following are my reasons for joining in the making of those orders.
The appellant was convicted after trial in the District Court between 1 September 2014 and 3 September 2014 of five counts of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA), two counts of sexually penetrating a child under the age of 13 years contrary to s 320(2) and one count of sexually penetrating a child under the age of 16 years who he knew to be a lineal relative contrary to s 329(9)(a). He was sentenced to a total effective sentence of 10 years' imprisonment.
The charges related to three complainants, who were all female children from the appellant's family. C and V are sisters and were referred to at the trial as being the appellant's nieces (though in evidence he said that in fact they were his great nieces). The third complainant was N, the appellant's granddaughter. Counts 1 to 6 related to C, count 7 to V and count 8 to N.
The critical factor on this appeal was the delay between alleged commission of the offences and when the appellant had first been informed of those allegations. That delay was approximately 19 years as regards counts 1 to 6 (C), 8 years as regards count 7 (V) and between 1½ and 3½ years as regards count 8 (N). Those figures reflect the evidence of the complainants at trial and that the allegations regarding count 8 changed substantially shortly before the trial.
The charges were as follows:
Count
Date
Charge
Complainant
1
A date unknown in 1994
Indecent dealing by rubbing the complainant's vagina - s 320(4)
C
2
On the same date as count 1
Sexual penetration by cunnilingus - s 320(2)
C
3
A date unknown in 1994
Indecent dealing by placing a hand between the complainant's legs - s 320(4)
C
4
A date unknown in 1994
Sexual penetration by fellatio - s 320(2)
C
5
A date unknown in 1994
Indecent dealing by rubbing the complainant's vagina - s 320(4)
C
6
A date unknown between 31/5/95 and 1/9/95
Indecent dealing by rubbing the complainant's vagina - s 320(4)
C
7
A date unknown between 30/6/05 and 15/8/05
Indecent dealing by rubbing the complainant's thigh - s 320(4)
V
8
A date unknown between 1/2/11 and 2/2/12
Sexual penetration by penetrating the complainant's vagina with his penis - s 329(9)(a)
N
There are two grounds of appeal. Without particulars they are as follows:
1.The learned trial judge erred in law by failing to give the jury an adequate direction in accordance with Longman v The Queen (1989) 168 CLR 79 at 91 on all counts on the indictment dated 29 April 2014; and
2.The State prosecutor told the jury during her closing address that uncharged acts of sexual penetration had occurred to the victim [N] prior to the act the subject of count 8, when in fact this was not the evidence of [N]. Such statement of something that was not in evidence amounts to an error of fact and therefore a miscarriage of justice.
The prosecution case
The prosecution case was that over a period of almost 20 years, from about 1994 to sometime in 2012, the appellant had committed sexual offences against three female children in his family. The offending was alleged to have commenced with his niece C when she was about 5 years old and continued for about a year. There was then a gap of approximately eight years before an offence was committed against C's younger sister V. There was then a further gap before the offence in relation to the appellant's granddaughter N occurred. The offence in relation to N was alleged to have occurred in the context of other uncharged sexual acts. Evidence of those other acts was adduced as propensity and relationship evidence. The prosecution also relied on evidence in relation to all counts as being cross‑admissible on the same basis: s 31A Evidence Act 1906 (WA).
C gave evidence that when she was a small child she and her family would go to the appellant's house for birthday parties and other social events. She said there were some occasions when she went with the appellant in his car to his house. One such occasion occurred when she was about 5 years old. No‑one else was at his house when they got there and the appellant took her straight out to the backyard to what she described as 'a little open sort of shed type thing'. She drew a diagram showing the location of the shed. C said that the appellant took his penis out of his pants and asked her to put it in her mouth. They were both standing up at the time and because she was small she was at the right height. At first she said she did not want to do it and he said that it was okay. Initially she did as she was told but when she said that she did not want to continue he pulled out his penis and they then left. She said that this incident was the first one that she could recall occurring. She thought that the year it occurred was 1995. This incident relates to count 4 on the indictment.
C could recall another occasion when she went to the appellant's house with her parents and other family members. She said that the appellant took her to his bedroom. He then pulled down her pants and underwear and touched her vagina. He got down on his knees and started to lick her vagina. She thought that this incident had occurred before the one relating to count 4. She again thought she was probably about 5 years old at the time. These allegations relate to counts 1 and 2 of the indictment.
C said that on another occasion she was at the appellant's house with her parents. She went to the toilet and sat down to urinate. She said that the appellant came into the toilet, cupped his hand and put it between her legs. He cupped some urine into his hand and smelt it. Again C said that she was 5 years old at the time of this incident. This allegation relates to count 3 of the indictment. She said that this incident occurred after the two incidents referred to above.
C said that the next incident that she could remember occurred when she went to a shop with the appellant and his adopted daughter, S. S was driving the car and C sat on the appellant's lap. When they got to the shop S got out of the car and went in. C and the appellant stayed in the car. C said that the appellant put his hand down the front of her pants and touched her vagina. This continued until S came back from the shop. Again she said that she was about 5 years old when this occurred. This allegation relates to count 5 of the indictment.
The next incident that C recalled occurred when she was with her father and the appellant at a community hall that was being set up for a party. She said that she was between 5 and 6 years old at the time. She said that the appellant took her to the kitchen area and lifted her onto a bench. She was wearing a skirt at the time and he pulled her underwear to one side and started touching her vagina. She told him that she did not want him to do that to her anymore and that she would to tell her father. She said that he responded by saying that this would be the last time. This allegation relates to count 6 of the indictment.
C said that no further incidents happened thereafter. The incidents she referred to were the total of the sexual things that she could recall being done to her by the appellant. She said that they occurred over about a year. She said that when she was aged 6 years old and in Year 2 at primary school her family had moved to live in Ballajura. She was asked if any of the incidents occurred whilst she was living in Ballajura and she said that they did. It was unclear whether this answer related to some or all of the incidents.
C said that when she was about 6 years old and still living in Ballajura she told her parents that she did not want to go to the appellant's house. When they asked her why she told them it was because he had touched her on her vagina. She was not believed. Thereafter she refused to go inside the appellant's house when her family visited and would remain sitting in the car. She said that this continued until she was about 10 years old and her parents would allow her to stay at home.
In cross‑examination C agreed that she was born in 1989 and turned 5 years old in June 1994. In regard to count 6 she could not recall where the hall was or what time of year the incident occurred. The party may have been for S's birthday but she could not recall the date of S's birthday. She could not recall whether the incident the subject of count 3 took place before or after Christmas 1994. She could not recall whether any of the incidents had occurred at the weekend or on week days.
V gave evidence that when she was 12 years old the appellant took her and N to the circus. He sat between them. She said that during the performance the appellant put his hand on her leg and started rubbing high up on the thigh area. She said this continued for about five seconds until she stopped it by folding her legs. V said that this occurred in about 2005 and the performance was by the Cirque du Soleil. There was evidence from a police officer that the Cirque du Soleil had performed in Perth between 1 July and 14 August 2005. This allegation was the subject of count 7.
N's evidence was partly given by way of a recorded interview that took place on 7 January 2013. N was born on 2 February 2000 and was 12 years of age at the time of the interview. She said that there was an occasion when she and the appellant were in his bedroom together watching television. She said that he got undressed and then took her clothes off. He turned the television and the lights off. He then tried to pull her closer to him but she moved away. He then pulled her by the legs towards him and pressed his penis to her vagina. She said he tried to shove it in but she felt pain. She said that the tip of his penis went in and he was swearing. She said that he stopped when there was a noise of others coming home. N said that this incident happened when she was about 11 years old. This allegation is the subject of count 8.
In the interview N said that there were no similar incidents involving the appellant. However, at the trial she gave evidence that there were a few more other such incidents. The first time that something happened with the appellant she was around 10 years old and this involved the appellant touching her vagina. She said that such touching had occurred in his bedroom, in the lounge room of his house and at a mobile phone shop in which the family had an interest. She said that there were also other incidents of a similar nature to count 8 and that that was 'around the second time' such an incident had occurred. N also provided some additional details regarding the circumstances of count 8, in particular that the appellant had not stopped because someone came home but because another child in the house had screamed.
The defence case
The appellant gave evidence and also called his daughter and his wife. He denied that any of the incidents had occurred. In regard to count 3 the appellant denied that there was a shed as described by C. There was a carport, but it was not in the location that C nominated for the shed. When C came to his house it was always with her parents. In regard to count 5 he denied ever being alone with C in a car. In regard to count 7 he admitted taking V and N to the circus but denied touching V's leg. He said that V had a boyfriend who had met them at the circus and that V had sat on her boyfriend's lap. In regard to count 8 he said that N did stay overnight at his house, but never on her own and always slept in a back room and not his room. However, he also said that overnight stays ended when N was about 10 years old. His wife gave similar evidence in regard to N.
There was other evidence called by both the prosecution and the defence but it did little to assist in determining with any greater precision when the incidents occurred.
Ground 1 - Longman direction - relevant principles
In Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 Brennan, Dawson and Toohey JJ said that whilst there may be good reasons why a complainant in a sexual case has refrained from making a complaint, one of the consequences of long delay is that an accused is forensically disadvantaged. Their Honours said:
[t]hat there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them. 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 20 years that opportunity was gone and the applicant's [complainant's] recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 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 (91).
At 108 McHugh J said:
To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to assert whether they contradicted or were inconsistent with the complainant's testimony.
In Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 Gaudron, Gummow and Callinan JJ reiterated the importance of a warning where there has been significant delay in a case alleging sexual offending:
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. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, 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 [45].
See also Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [51]; Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [177]; Angliss v The State of Western Australia [2005] WASCA 162 [17]; EPD v The State of Western Australia [2011] WASCA 264 [69] ‑ [72] and SPB v The State of Western Australia [2012] WASCA 136.
In SPB Buss JA (with whom McLure P and Mazza JA agreed) set out the essential features of a Longman warning:
When a Longman warning is necessary, the trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice. See Crampton [142] (Hayne J); AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 [17] (Steytler P); FJL [20] - [28] (Wheeler JA, Pullin JA agreeing); MAS v The State of Western Australia [2012] WASCA 36 [18] ‑ [20] (Martin CJ, Pullin & Mazza JJA agreeing).
However, a Longman warning has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice. See Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 [37] (Owen J, Pidgeon & Ipp JJ agreeing); Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [17] ‑ [18] (Murray J, Malcolm CJ agreeing), [63] - [66] (Parker J); FJL [24] (Wheeler JA, Pullin JA agreeing); MAS [28] (Martin CJ, Pullin & Mazza JJA agreeing [52] - [53].
In EPD the Longman direction given by the trial judge was found to be deficient in several respects. Mazza JA (with whom Martin CJ and Buss JA agreed) set out those deficiencies in some detail. Firstly, the words used were not an unmistakeable and firm direction and did not adequately convey to the jury the requirement to take into account the forensic disadvantage which the appellant had suffered as a result of the long delay in that case. Second, although the trial judge had referred to the loss of opportunity to test the evidence of the complainants he had made no reference to the loss of opportunity to marshal a defence. Third, the trial judge had made only very general observations of the difficulty that the appellant faced because of the inability of the complainants to put a specific date to the incidents to which they referred. There was no reference to the appellant's lost opportunity to identify and locate potential witnesses or to precisely account for his own whereabouts or movements. As Mazza JA noted, forensic disadvantage in this context is actual even if it is the loss of a chance or opportunity: AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 [20], [140] ‑ [149] and FJL v The State of Western Australia [2010] WASCA 8 [2].
Ground 1 - the trial judge's direction
The necessity for a Longman direction in this case was not disputed, other than in respect of count 8. At the conclusion of the evidence and in the absence of the jury the trial judge raised with counsel the directions that were required. His Honour stated that there needed to be a Longman direction.
Counsel for the State queried whether such a direction was required in respect of count 8 and made reference to Anderson v The State of Western Australia [2014] WASCA 137. In that case McLure P noted that the purpose of a Longman warning was to alert the jury to disadvantages arising from delay in regard to testing the complainant's evidence or marshalling defence evidence. If the complainant's evidence did not form a substantial part of the prosecution case and the delay was not significant there was no requirement for a direction. A Longman warning was held not to have been required in Anderson because the complainant had been asleep at the time of the alleged offence and was not called as a witness and because the delay between the commission of the offences and when the appellant was put on notice of the allegations was relatively short, being between three and 13 months.
His Honour said that he was unsure when the appellant first became aware of the allegations in respect of count 8. The prosecutor said that there was nothing to indicate that the appellant had knowledge of the allegations prior to the police attending his residence in July 2013. Since this offence was alleged to have occurred between 1 February 2011 and 2 February 2012 this means that the delay was between approximately 1½ and 2½ years. His Honour concluded that such a delay could cause a forensic disadvantage. In these circumstances his Honour's conclusion was that a Longman direction should be given in respect of all counts.
It is arguable that the delay in respect of count 8 is longer than the period referred to. This is because the allegation in respect of that count changed significantly shortly prior to trial. In her interview N had said that the sexual act the subject of count 8 had been the only such act. However, on 13 August 2014 N signed a supplementary statement in which she stated that there had been other incidents of the same nature, one of which had occurred when she was aged 10 years old. She also provided more details of the incident the subject of count 8, including that it happened at night at around 7.00 pm, that her nanna had been to the doctors that day but was back when it happened, that S and S's son were also at home at the time, the name of the movie that she had been watching and that the time the appellant stopped because he heard a car come home was another time. The opportunity to make any independent inquiry into these significant additional aspects was prejudiced both by the delay and the proximity of their disclosure to the trial.
The direction given by his Honour was as follows:
I'm now going to give a direction in relation to the issue of time. You will obviously appreciate that with respect to [C], the allegations that she makes are alleged to have occurred in the period 1994 to 1995, almost 20 years ago. Count 7, which is the complaint by [V] is 2005, about nine years ago. And to a much lesser extent, count 8 is concerned with a period of time about two years ago.
With respect to the passage of time, you will appreciate that the complainants in each case were, at the relevant time, young children. As I've told you you can't convict the accused unless you are satisfied beyond reasonable doubt, based on their evidence, that he committed the offence you are considering. Because of the crucial nature of their evidence and because of the seriousness of the allegations made, you should consider and scrutinise their evidence with care.
You should bear in mind as I have said that the time of these events was in the past at a time when they were young children. [C] was aged five to six. You will appreciate that the human memory is fallible and that the longer there is delay, the more opportunity there is for error. And that might be particularly so for events which occur in childhood.
You might also appreciate that the longer you believe something to have happened, the more convinced you might become that it happened. And you should also bear in mind that to some extent the accused is disadvantaged by the passage of time because he has lost the opportunity to bring forward matters of defence that may have been available to him at the time to test the evidence of the complainant and that he has therefore been disadvantaged.
So members of the jury, you may wish to take into account the delay and the passage of time. You heard submissions from both counsel in that aspect and in particular from the State that there is evidence before you from the adults, the mothers of each of the complainants about the change in conduct of the children at the relevant points in time with respect to the accused.
And you would have heard the evidence of [Ms T] and [Ms B] today that it seems to have been a very long period of time that has passed since there's been any meaningful contact between families as there was in the early days (ts 330 - 331) (emphasis added).
At the conclusion of his summing up the trial judge invited counsel to comment on what he had said to the jury. Neither prosecution nor defence counsel referred to the relevant part of the directions. In particular, defence counsel did not seek a redirection on the issue of delay.
Ground 1 - conclusions
There are a number of obvious flaws in the direction given by the trial judge. The wording of the direction is similar to the direction found to be inadequate in EPD. Both this matter and EPD involved the same trial judge. The guidance provided by EPD should have prevented his Honour from falling into the same error.
The flaws in the direction are as follows. First, that part of the direction dealing with forensic disadvantage comprises two sentences. The first sentence commences with the words 'And you should also bear in mind' and includes the words 'to some extent' and 'may have been' to refer to the opportunity that has been lost as a result of the delay. This does not constitute an unmistakeable and firm direction of law concerning the loss of forensic advantage. The problem is compounded by the sentence which follows, which states that the jury 'may wish' to take into account the delay and the passage of time. These words are more consistent with a mere comment than a direction of law that the jury is obliged to follow. They are also to be contrasted with other directions that the trial judge gave to the jury, which were not in such equivocal terms. As with EPD, the words used are not emphatic and do not convey the requirement to take into account the forensic disadvantage which the appellant has suffered as a result of the long delay.
Second, his Honour referred to the lost opportunity to bring forward matters of defence to test the evidence of the complainants. This gives the impression that the disadvantage is confined to obtaining information that could be used to cross‑examine the complainants. This conflates the two separate aspects of forensic disadvantage. Delay not only prejudices the ability to test the evidence of the complainants, it makes it more difficult to obtain any positive defence evidence as to the appellant's movements or the objective circumstances that existed at the time. The ability of the appellant to accurately recall surrounding events would be impaired, as would the memories of the others who may have been present. The physical features of any relevant location may have changed and the time when such changes occurred may be hard to determine. Delay will usually result in lost opportunity in both respects and both should be referred to. Whilst each of the complainants could recall in some detail what had occurred in respect of each incident and where it had occurred, the timing of them, with the possible exception of count 7, was very broad. When this was added to the delay it meant that the opportunity for both testing the evidence of the complainants and for obtaining positive defence evidence was significantly constrained. In the absence of a clear direction to the jury this is not something that they may have appreciated.
Third, the direction did not seek to adapt the warning to the facts of this case. In submissions on the appeal counsel for the appellant identified the nature of the lost opportunity in respect of each count. This included that it would be difficult to dispute that he was alone with C in respect of count 4 given the uncertainty as to the date of that incident and the time that had elapsed. That difficulty would extend to being able to give an accurate account of the layout of the property and the presence or absence of a shed. In respect of counts 1, 2 and 3 there would be difficulty in determining who the others present in the house at the time were and with them having any recall of the appellant and C's movements. In respect of count 5, it was more difficult given the lapse of time to obtain any independent evidence regarding whether the appellant and C had ever been in a car together. In relation to count 6, there was difficulty in determining which of two possible events was being referred to and who was present during any setting up of the hall. In regard to count 7 the lapse of time would make it difficult for the appellant to identify the boyfriend of V who he said was there. The allegations in regard to count 8 changed significantly shortly prior to trial and the appellant's opportunity to make any inquiry to determine who was present at any of the occasions referred to by N and what they may have seen or heard was lost, or at least significantly impaired, by reason of the delay. Whether or not the appellant could have accounted for his movements in a way that would have disproved any of the incidents, the loss of an opportunity to do so was real.
It is true that defence counsel at the trial did not raise any issue with the directions given. The respondent on the appeal submits that because the trial judge was not asked to redirect the jury there was no wrong decision on a question of law by the judge. As the ground of appeal alleges an error of law and not a miscarriage of justice it is said to be misconceived: Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, [48] ‑ [49] (McHugh & Gummow JJ). The difficulty with that analysis is that it fails to acknowledge that a Longman warning was required in this case as a matter of law. The warning that was given was one that was so seriously deficient that it could not be said that an appropriate warning was given at all. This is not a case where an assessment of the appropriateness or adequacy of a direction may be influenced by the tactical judgment of defence counsel. Whether the error in this case is characterised as a wrong decision on a question of law or as a miscarriage of justice is immaterial. There was also no suggestion that the proviso in s 30(4) Criminal Appeals Act 2004 (WA) could be applied here.
As regards whether a warning was required in respect of count 8, there is no prescribed length of delay which will necessarily result in forensic disadvantage and impose a requirement for a Longman direction. The length of any delay needs to be viewed in the context of the particular facts of the case: Liddington v The State of Western Australia [2005] WASCA 60; (2005) 152 A Crim R 502 [72]. This will include having regard to whether the allegations are otherwise specific as to their place and nature, whether the time at which the incidents are said to have occurred is specified or can be determined and what options may have been available to the appellant to make his own investigations if there had been no delay. In the present case I consider that his Honour was correct to conclude that the Longman direction should be made in respect of all counts, including count 8. This is not only because of the length of the delay, that is between 1½ and 2½ years (or, in some respects, 3½ years), but because the date of the incident was said to be on a date unknown in a 12 month period.
However even if a Longman direction was not required in respect of count 8 the conviction on that count could not stand. That is because it is accepted by the respondent that there should have been an appropriate direction on counts 1 to 7. The evidence in respect of all counts was led on the basis that it was cross‑admissible under s 31A of the Evidence Act. That is, that evidence in respect of counts 1 to 7 could be used to establish that the appellant had a particular sexual interest in young girls within his family. A proper Longman direction in respect of counts 1 to 7 could have affected the jury's willingness to find those offences proven and, in consequence, have affected in a significant way the evidence in respect of count 8.
At the hearing of the appeal counsel for the respondent submitted that there was no authority that evidence of uncharged acts relied upon as propensity evidence should attract a Longman warning. It was suggested that since the evidence relating to counts 1 to 7 was relied upon as propensity evidence in respect of count 8 this meant that count 8 could stand notwithstanding any deficiency in the Longman direction. This was on the assumption that count 8 did not itself require a Longman warning and on the hypothetical basis that if count 8 had proceeded to trial alone the evidence in respect of counts 1 to 7 could have been led as propensity evidence only and would not have required a warning. I cannot accept those submissions. First, in my view a warning was required in respect of count 8 in the circumstances of this case. Second, count 8 did not proceed to trial alone so the hypothesis is false. Third, whether or not propensity evidence will, in some circumstances, require a Longman warning has not been determined and does not need to be determined in this case.
Ground 2
This ground alleges that in the prosecutor's closing address she made an error when referring to the evidence of N. The misstatement was said to be further aggravated by the trial judge's adoption of it during his summing up.
The particular passages from the prosecutor's closing address are as follows:
Its apparent that in her initial interview, [N] only talked about the one occasion on which her grandfather had sex with her or, at least, tried to have sex with her. She has subsequently revealed that the sexual abuse was more extensive and occurred over several years (ts 3/9/2014, page 10).
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In her interview, [N] said that [the appellant] had become angry and was swearing and we say that this was an expression of frustration at being unable to fully penetrate her as he has been able to do on other occasions and we say that you can accept this as being the case because [N] not only said that he'd been able to have sex with her those other times, but she also says that this time that she was describing was the only occasion on which he was swearing and getting angry. So that shows that this was the one occasion where it just, for him, did not work (ts 3/9/2014, page 12).
At trial N gave the following evidence about the other occasions when acts of a sexual nature had occurred:
In your interview you talked about one time when something happened with your grandpa. Was that the only time that something happened with your grandpa?---No.
How many other times were there?---A few more.
When was the first time that something happened with your grandpa?---I'm not quite sure.
Are you able to give us any idea of how old you were?---Around 10.
And what sort of things did your grandpa do when you were about 10?---Touching and - yeah.
When you say 'touching', touching where?---My vagina.
And what did he use to touch your vagina?---His hands (ts 1/9/2014, page 112 - 113).
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So you talked - you said that there were these other times when your grandpa touched your vagina. In your interview you actually talked about him doing something with what you called his 'dick'. Were there any other times that he used his dick?---A few.
And what happened on those times?---I'm not quite sure.
In your interview you talked about him trying to put his dick in your vagina, and you said that he was able to put the tip in. Did anything like that happen on any other occasion?---No.
Did he ever use his dick in relation to touching your vagina on any other occasion?---Yes.
Now, I know you might not be able to remember those specific, or those occasions as to when they happened, but can you say what sorts of things happened on those times, what he did with his dick?---I'm not quite sure.
You said in your interview as well that when he was trying to put his dick in your vagina that it caused you pain. Were there any other times when he caused you pain in your vagina?---No.
Were there any other times when he did something to you and he was swearing?---No.
Were there any other times when he did something to you and he got angry like that time?---No.
The time that you talked about in your interview, can you say whether that was the first time that something like that happened, the last time?---Around the - - -
Can you give us an idea?---Around the second time.
Around the second time? So did it happen after that?---Yes.
And these things that he did when he used his dick, where were you when those things happened?---In his room.
Did he share his room with anyone else?---No.
Did your nanny - or nana, sorry, sleep in that room?---No.
You said that he had touched you on the vagina in his shop and in the lounge room. Did he ever do anything with his dick in the shop or in the lounge room?---I'm not quite sure.
Do you remember how old you were the last time that anything like this happened?---Around when I was 11.
Do you remember what year that would be?---2001 (ts 1/9/2014, page 113 ‑ 114).
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So in your interview you talked about him trying to put his dick into your vagina. Was that the only time that he did that?---No.
What did he do on the other times?---The same thing as every time, really.
When you say 'the same thing as every time', could you provide me with a bit more detail about what he actually did to you?---Sort of like sex.
When you say 'sort of like sex', what do you actually mean?---Like I didn't want to.
Did he have sex with you?---Yes.
And on those other times was he able to have sex with you?---Yes.
And did he swear on those other times?---No.
Did he get angry on those other times?---No (ts 1/9/14, page 116 ‑ 117).
The evidence of N was open to an interpretation that the appellant had been touching her sexually from the time that she was aged around 10 years old, that there were 'a few' occasions on which the appellant had penetrated N's vagina with his penis, that count 8 was 'around the second time' an act of that nature had occurred and that the last time something of that nature occurred was when she was around 11 years old.
The first passage from the prosecutor's closing address is consistent with the evidence of N. It is clear from the context that the prosecutor was referring to all acts of a sexual nature not merely to acts of penetration. The evidence of N was that such acts had continued from the time she was 10 years old until she was 11 years old. Whether that was for 'several years' is difficult to determine but the summary was not inaccurate or apt to mislead the jury.
The second passage from the prosecutor's address is also consistent with the evidence of N. In this passage the prosecutor was submitting to the jury that N's description of the appellant as being angry and swearing was explained by his inability to achieve full penetration as he had on other occasions. N's evidence that count 8 was 'around the second time' was consistent with there being an earlier occasion on which full penetration had been achieved. Whether there had only been one such earlier occasion was vague but the summary by the prosecutor was not inaccurate or apt to mislead.
It is also significant that the appellant's trial counsel did not raise any issue with either the prosecutor's closing or the judge's charge on this point. It is the obligation of counsel to take exception to factual errors if there is any risk that they may lead to a miscarriage of justice: KJM v The State of Western Australia [2013] WASCA 23 [41] (Mazza JA, Martin CJ & McLure P agreeing). The fact that defence counsel did not apparently think that anything said by the prosecutor or the trial judge gave rise to any risk of a miscarriage of justice counts heavily against any such claim made on appeal.
Since the appeal was allowed on ground 1 it was unnecessary to determine ground 2. However that ground was not abandoned and for the sake of completeness I would refuse leave in respect of that ground.
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