Longman v The Queen

[1989] HCA 60

HIGH COURT OF AUSTRALIA

Brennan, Deane, Dawson, Toohey and McHugh JJ.

LONGMAN v. THE QUEEN

(1989) 168 CLR 79

6 December 1989

Evidence (W.A.)

Evidence (W.A.)—Criminal trial—Sexual offence—Uncorroborated evidence of complainant—Rule requiring warning of danger of conviction—Abolition—Warning not to be given unless judge satisfied that warning justified in circumstances—Evidence Act 1906 (W.A.), s. 36BE.

Decisions

BRENNAN, DAWSON AND TOOHEY JJ. An indictment was presented in the District Court of Western Australia at Perth charging the applicant, John Henry Longman, with several counts of unlawfully and indecently dealing with or assaulting each of three girls under the age of 14 years. The counts were severed and, after a trial on two counts, he was convicted on 21 October 1988 on both. The two counts were "that on a date unknown between the 22nd day of February 1962 and the 22nd day of February 1963 at Moora (he) unlawfully and indecently dealt with one (DRT) a girl under the age of 14 years" and "that on a date unknown between the 22nd day of February 1966 and the 22nd day of February 1967 at Moora (he) unlawfully and indecently dealt with" the same girl "a girl under the age of 14 years". Upon conviction, the applicant was fined $2,000 on each count and was ordered to be imprisoned until such fines were paid but so that the term of imprisonment for non- payment of each fine should not exceed three months. His appeal against conviction was dismissed by the Court of Criminal Appeal.

2. At the time of the trial, DRT was aged 32. She was but 6 years old at the time of the event alleged in the first count and 10 years old at the time of the event alleged in the second count. She was the applicant's stepdaughter. The applicant had married the complainant's mother in 1960 when the complainant was aged 4. The mother was a widow with 5 children of whom the complainant was the third. They went to live with the applicant on his farm at Koojan near Moora and they lived there until the end of 1964 when, because of a condition affecting one of the children by the first marriage, the mother and family went to live in Perth. There they were visited from time to time by the applicant and from time to time they went to the farm on holidays and once (in 1968) for a longer period. A further 7 children were born of the marriage of the applicant and the complainant's mother, all daughters. The applicant and the complainant's mother were divorced in 1976.

3. The complainant's evidence in support of the respective counts in the indictment was that she had been asleep on each occasion and was awakened by the applicant's touching of her genitalia. The first event allegedly occurred when she and two of her siblings were being driven home by the applicant from his brother's farm late at night. The complainant said she was sitting next to the applicant with her siblings on her other side. The second event allegedly occurred when she had gone to Koojan from Perth to help with work on the farm during school holidays. She had gone to sleep in the applicant's bed, being frightened of spiders in the room she ordinarily shared with her sisters. There was no one else at the farm on this occasion. On both occasions, the complainant said she pretended to remain asleep. In addition to the two events charged in the indictment, the complainant gave evidence of other sexual touching by the applicant extending over years. She gave evidence that she never made an objection. Nor did she make any complaint to her mother of the applicant's conduct because, as she deposed, the applicant was capable of a lot of violence and was aggressive and the mother trusted and depended on her and was always very busy. (Five children were born in the first 6 years of the mother's marriage to the applicant.) DRT first made a complaint to the police in August 1987, 25 years after the first alleged incident, 21 years after the second.

4. In September 1987, the police interviewed the applicant. The police evidence was that the applicant admitted that the complainant's statement (which had been read to the applicant) was correct "except where she states I have been touching her genitals." The applicant gave evidence at the trial. He was then aged 57. He denied that he had ever indecently touched the complainant. His description of his dealings with her was entirely innocent. He spoke of the complainant as the backbone of the family. In his evidence, the applicant denied that the police had read the complainant's statement to him. However that may be, he denied to the police that he had interfered with the complainant. The defence led evidence of the applicant's good character.

5. There was no independent evidence corroborative of the complainant's allegations.

6. Before the trial judge commenced his summing-up counsel for the applicant asked the trial judge to give the jury a warning about acting on the uncorroborated evidence of the complainant. He referred to s.36BE of the Evidence Act 1906 (W.A.). That section was one of a number of sections introduced to deal specifically with evidence in trials for sexual assault offences (as defined) or for offences against Ch.XXII of the Criminal Code (W.A.). Chapter XXII relates to offences against morality and includes s.183 under which the counts in the indictment were laid. Section 36BE, which has now been repealed and replaced by s.50, a provision applicable to all indictable offences, read as follows:
"(1) On the trial of a person for a sexual assault offence or an offence under Chapter XXII of The Criminal Code -

(a) the judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and

(b) the judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances.

(2) Nothing in subsection (1) affects the operation of any law that provides that a person cannot be convicted of an offence upon the uncorroborated testimony of one witness or upon the evidence of a child whose evidence is admitted under section 101."

7. Counsel submitted to the judge that there were a number of factors which justified the giving of a warning under par.(b) of s.36BE(1). He referred to the long period of time which had elapsed since the events charged were said to have occurred, the lack of any satisfactory reason for the absence of complaint to the complainant's mother, the absence of any complaint until 1987, the accused's inability after so long a delay to support his denial of the allegations made against him, the ease of making and the difficulty of disproving such allegations, and the absence of any corroborative evidence. His Honour rejected the submission that he should give a warning. He said: "In relation to the question of a warning
which arises from the operation of the Evidence Act, in particular section 36BE, subsection (1)(a) removes any requirement, whether arising by operation of the law or practice, to give the warning. Such a requirement may have existed in the past. Subsection (1)(b) prohibits the trial judge from giving a warning, unless he is satisfied that such a warning is justified in the circumstances. ... So the question is this: do the circumstances furnish adequate grounds for, or show a reasonableness for, or warrant, the giving of a warning which is otherwise prohibited by law? The position is that unless I find in my discretion that the circumstances do, for example, warrant the giving of the warning, I am not permitted to give it."

8. His Honour was not satisfied that a warning was justified and he declined to give it. He noted that:
"in relation to the effluxion of time comment
from counsel can be made."

9. On appeal to the Court of Criminal Appeal two grounds were argued:
1. "The learned trial judge erred in the

exercise of his discretion in failing to give a warning to the jury to the effect that it was unsafe to convict on the uncorroborated evidence of the complainant."

2. "Alternatively, by the failure of the learned trial judge to direct the jury on the need for the jury to exercise caution before convicting on the evidence of the complainant alone, the conviction of the Appellant was dangerous and unsafe."

10. The appeal was dismissed. The application to the trial judge to give a warning and the argument in the Court of Criminal Appeal both focussed on the provisions of s.36BE(1).

11. Paragraph (a) of s.36BE(1) abrogates a requirement imposed by "any rule of law or practice" to give the jury a warning to the effect stated. The effect of the warning to be given in cases of rape and other sexual offences was stated by Gibbs J. in Kelleher v. The Queen (1974) 131 CLR 534, at p 553:
"it is dangerous to convict on the
uncorroborated testimony of the person (whether male or female) on whom the offence was committed, although the members of the jury may act upon that testimony if, after scrutinizing it with great care, and paying heed to the warning, they are satisfied of its truth and accuracy."

12. The reason for the rule of practice (which did not quite harden into a rule of law in Australia) was stated by Salmon L.J. in Reg. v. Henry; Reg. v. Manning (1968) 53 CrAppR 150. His Lordship said (at p 153) that it was dangerous to convict on the evidence of a woman or girl alone -
"because human experience has shown that in
these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute."

13. The reason for the rule assigned by Salmon L.J. appears to have been accepted by Barwick C.J., Gibbs and Mason JJ. in Kelleher (at pp 543,553,559), although the rule treats the alleged victims of sexual offences of either gender as equally suspect. However, the requirement to warn does not extend to cases where the reasons for giving the warning have no relevance. As Barwick C.J. observed:
"The rule of practice as to the warning to be
given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play."

14. The warning of danger in acting on the uncorroborated testimony of the alleged victim in cases of rape and other sexual offences places alleged victims of such offences in a special category of witnesses: Reg. v. Hester (1973) AC 296, at p 325; Reg. v. Spencer (1987) AC 128, at p 141; Bromley v. The Queen (1986) 161 CLR 315, at pp 319,323. Convictions supported solely by an alleged victim's evidence where a warning is not given are usually regarded as unsafe and unsatisfactory and quashed by Courts of Criminal Appeal: see the cases cited by Gibbs J. in Kelleher, at p 551. By abolishing the requirement imposed "by any rule of law or practice" par.(a) overrode the reason which prompts the giving of the warning. It removed the alleged victims of sexual offences from that special category of witnesses.

15. The mischief at which the provision appears to have been aimed is the adverse reflection which a warning "required by any rule of law or practice" casts indiscriminately on the evidence of all alleged victims of sexual offences, the vast majority of whom are women, and the corresponding protection which the giving of a warning confers on an accused in all cases of sexual offences. It is evident that the legislature regards the reflection as unwarranted and the protection as unjust. If the alleged victims of sexual offences, as a class, are not regarded by the legislature as suspect witnesses, judges should no longer warn juries that allegations of sexual offences are more likely to be fabricated than other classes of allegations.

16. In practice, the warning given under the rule of practice varies from case to case. There are no set words and the terms of the warning are adapted to the particular circumstances: Reg. v. Hester, at pp 309, 328; Reg. v. Spencer, at p 135. Of course, a warning might be needed not only to avoid the risk of miscarriage of justice which the rule of practice seeks to avoid but a risk of miscarriage arising for reasons other than the suspicion attaching to the evidence of any alleged victim of a sexual offence. Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Bromley v. The Queen, at pp 319,323-325; Carr v. The Queen (1988) 165 CLR 314, at p 330. Does par.(a) dispense with any requirement to warn when the evidence of an alleged victim of a sexual offence is uncorroborated or only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class?

17. To construe par.(a) in the former way would be to place the alleged victims of sexual offences in a category of especially trustworthy witnesses whose evidence need never be the subject of a warning however necessary a warning might be to avoid a perceptible risk of miscarriage of justice in the circumstances of the case. So wide a construction would not only override the reason which underlies the rule of practice, but would sterilize the trial judge's ability to secure a fair trial. That can hardly be the true construction of par.(a).

18. The provisions of par.(a) are to be found in the statute law of States other than Western Australia: see s.405C of the Crimes Act 1900 (N.S.W.), s.62(3) of the Crimes Act 1958 (Vict.) and s.34i(5) of the Evidence Act 1929 (S.A.). In each of these States the narrower construction has been attributed to the provision: see Pahuja (1987) 30 ACrim.R. 118; Reg. v. Murray (1987) 11 NSWLR 12 and Williams (1987) 26 ACrimR 193. In Pahuja, King C.J. in the Court of Criminal Appeal of South Australia said (at p 126):
"Although I consider that s 34i(5) has
had the effect of abolishing the rule of law or practice relating to corroboration warnings in sexual cases, I cannot read into it some of the wider implications attributed to it. It does not confer upon the evidence of an alleged victim in a sexual case any particular legal status, nor inhibit the triers of the facts in a sexual case from weighing that evidence in the usual way, having in mind such aspects of human nature and behaviour as they consider to be material for that purpose."

19. A similar interpretation of the provision was adopted in Murray and Williams. The narrower interpretation is correct.

20. If the warning to which par.(a) is directed is a warning that it is generally unsafe to convict for any sexual offence on the uncorroborated evidence of the alleged victim (or, to put the warning another way, that it is unsafe to convict on the uncorroborated evidence of the alleged victim of the particular sexual offence charged because evidence of that kind has been shown by experience to be especially liable to fabrication), par.(a) does not affect the requirement to warn about other perceptible risks of miscarriage of justice. A warning may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence is tendered to prove. Paragraph (a) leaves that situation unaffected.

21. Furthermore, what par.(a) abolishes is the requirement to give a warning, not a judge's discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par.(a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par.(a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only. Perhaps it should be added that the judge's discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which par.(a) eliminates.

22. Paragraph (b) is a unique provision. Its first limb is clearly intended to supplement par.(a) by prohibiting the giving of a warning which, the legislature obviously feared, judges might have continued to give despite the abolition of the requirement to give it. Its second limb seems to reflect a misconception of the effect of par.(a). Once par.(a) abolishes the requirement that jurors be warned that the evidence of alleged victims of sexual offences is generally to be treated with suspicion, no particular set of circumstances could justify the judge's directing jurors that all such evidence is treated with suspicion. If par.(a) abrogates the rule which reflects curial experience of the need for caution in evaluating the evidence of alleged victims of sexual offences because of the risk of fabrication, then there is no particular set of circumstances which can justify the trial judge in giving the jury a warning based upon general experience. It would make no sense to treat the warning which par.(b) permits a warning based upon particular circumstances as being restricted to the same kind of warning as that to which par.(a) refers a warning based upon general experience.

23. That is to say, unlike par.(a), par.(b) must relate, not so much to a warning of the general unsafety of convicting on the uncorroborated evidence of alleged victims of sexual offences, as to a warning which a trial judge might consider giving on account of the particular circumstances of the case. That is because par.(b) directs the judge to find his justification for giving "such a warning ... in the circumstances". If the warning which may be given pursuant to par.(b) cannot be the warning referred to in par.(a), the phrase in par.(b) "a warning ... of the kind described in paragraph (a)" must be taken to mean any warning that it is unsafe in the circumstances of the particular case to convict on the uncorroborated evidence of the particular alleged victim.

24. Construing par.(b) in that way, it prohibits in any case of a sexual offence the giving of any warning that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim unless the judge is satisfied that the particular warning is justified in the circumstances. The judge cannot be so satisfied if there is nothing in the case to require a warning other than the circumstance that proof of the offence rests on the uncorroborated evidence of the alleged victim. So construed, par.(b) first shuts the door on all warnings that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim, and then reopens it to such warnings where the particular circumstances of the case provide a justification. This construction of the section is somewhat artificial, but it is essential to avoid absurdity. If the words "of the kind described in paragraph (a)" were to be construed so that the warnings referred to by the respective paragraphs were the same, par.(a) would comprehend a warning which might be "justified in the circumstances". Such a construction would accord to par.(a) a wider operation than is accorded to that provision in other States and destroy the protection afforded in appropriate cases by the requirement to give a warning unrelated to the suspicion attaching to the evidence of alleged victims of sexual offences.

25. Paragraph (b) thus comprehends more kinds of warnings than the kind of warning to which par.(a) refers. Although a warning can be given only if the judge is satisfied that the warning is justified in the circumstances and therefore must not be given unless, on a view of the facts reasonably open to the jury, there is an occasion for giving a warning justification may be found in any requirement of a rule of law or practice which might apply in the circumstances other than the requirement to which par.(a) refers. If, on a view of the facts reasonably open to the jury, a rule of law or practice requires a warning to be given, not being a warning of the kind to which par.(a) refers, the rule must be followed. The rule is itself justification for giving the warning it requires.

26. There is authority for the view that a judge's omission to give a warning of the kind to which par.(a) refers cannot found a successful appeal: see per Fullagar J. in Reg. v. B. (1987) VR 276, at p 279. In principle, that must be so for par.(a) abolishes any requirement to give that kind of warning. But that notion has no relevance to a judge's refusal to give a warning of a kind required by a rule of law or practice other than the rule to which par.(a) refers. If a judge refuses to give a warning required by a rule of law or practice other than the rule referred to in par.(a), that is, a warning required by the general law, the refusal is reviewable on appeal and the conviction is liable to be quashed as unsafe and unsatisfactory if it be held that the refusal to warn left a perceptible risk of miscarriage of justice. In Western Australia, the statutory framework within which an application for a warning under the general law must be made is par.(b). The opening words of par.(b) would prohibit the giving of any warning and thus the latter words of par.(b) must be invoked to open the way for the warning to be given. The complaint which an appellant might make when a trial judge refuses to give a warning under the general law is that the judge erred in failing to be satisfied that the circumstances justified a warning. Appealable error consists in a failure to be satisfied that the warning should be given when a warning is required by the general law apart from the requirement abolished by par.(a). That was the complaint raised before the Court of Criminal Appeal in this case.

27. It does not appear that the Court of Criminal Appeal approached the resolution of the present case in this way. Rowland J. cited the judgment of Fullagar J. in Reg. v. B. and observed that -
"it is difficult to see how a finding by the
trial judge that he is not satisfied can be upset on appeal unless it is apparent that he has misconceived the Act or the

circumstances."

28. His Honour then examined what was needed before a warning "of the type prohibited" might be given. From the context (in which the "trial Judge's, or any other judge's, perception of 'the intrinsic lack of reliability' of complainants" was rejected as a ground of justification), it appears that par.(b) was construed as relating solely to warnings of the kind referred to in par.(a). His Honour concluded: "In this case, the learned trial Judge
considered the matter and, in the circumstances of the case, decided that no such warning was necessary. Even if such a finding is appealable, it has not been shown that he was wrong."

29. However, a search for justification for a warning of the kind to which par.(a) refers must fail, as Kennedy J. perceived:
"In my opinion, the former rule cannot now be
revived by arguing that the judge should have been satisfied that the warning was justified, because the requirement has been abolished."

30. The Court of Criminal Appeal limited their enquiry unduly under a misconception of the scope of par.(b). The question which arose, and which arose under the latter part of par.(b), was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s.36BD requires) that there may be "good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence." But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer, at p 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of New South Wales, unreported, delivered 12 October 1989, pp 8,22-23,38-39,57-58) 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, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.

31. As the true construction and operation of s.36BE(1) is a matter of general public importance, special leave must be granted in this case. The absence of a warning leaves the conviction unsafe and unsatisfactory. It follows that the appeal must be allowed and, regrettably, a new trial must be ordered.

DEANE J. The historical rationale of the rule of practice that, in a case of an alleged sexual assault by a male upon a female, the judge is required to give a warning to the jury to the effect that it is dangerous to act on the uncorroborated evidence of the complainant is largely to be found in a generalisation which was propounded as the wisdom of experience by judges of earlier times but which sounds somewhat strangely in modern ears. It was to the effect that female evidence in such cases is intrinsically unreliable. Thus, the 5th edition of Wills' "essay" on The Principles of Circumstantial Evidence (1902, edited by the late author's son who was at the time the senior puisne judge of the King's Bench Division) explains, at p 364 (in a passage introduced by the editor), the rationale of the practice as:

"... there is often very great temptation to a woman to screen herself by making a false or exaggerated charge, and supporting it with minute details of evidence of a kind, which the female mind seems particularly adapted to invent. Unless, therefore, the story of the prosecutrix is corroborated, it becomes a mere question of oath against oath, and although the law does not in these cases technically require corroborative evidence ... judges are in the habit of telling juries that it is not safe to convict the prisoner upon the unsupported statements of the woman ..."

2. To much the same effect is the explanation of Salmon L.J. in Reg. v. Henry and Manning (1968) 53 CrAppR 150, at p 153, which was cited with approval in some judgments in this Court in Kelleher v. The Queen (1974) 131 CLR 534, at pp 542, 543 and 559, namely, that "human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all."

3. Unsatisfactory though its historical rationale may be, the rule of practice is now firmly entrenched in the traditional criminal law of this country. The present tendency is, however, to explain the rationale of the rule without reference to the gender of the complainant and to state the rule itself in non discriminatory terms. In Kelleher v. The Queen, at p 553, Gibbs J. defined the rule as being "that in cases of rape and other sexual offences in which corroboration is not required as a matter of law the trial judge should, as a matter of practice, warn the jury that it is dangerous to convict on the uncorroborated testimony of the person (whether male or female) on whom the offence was committed". This tendency to divorce both the rule and its rationale from the perceptions of earlier times removes some of the problems involved in the continued acceptance of an unqualified requirement of such a warning. It does not, however, remove them all.

4. There remain serious problems about any general rule requiring that, in a case of a sexual assault, an unqualified warning be given to the effect that it is dangerous or unsafe to convict on the uncorroborated testimony of a complainant. The main problem is that the universal proposition embodied in such a rule is simply unjustified. Particularly in cases of sexual assault within a family unit where there are likely to be powerful influences favouring concealment rather than complaint, neither wisdom nor experience - be it judicial or otherwise - justifies the unqualified proposition that, in any case where the evidence of the complainant is uncorroborated about any element of the offence, it would be dangerous to convict on that uncorroborated evidence. In fact, the circumstances of the particular case may be such that it is not dangerous to convict on such uncorroborated evidence at all. And the law itself recognizes that that is so in that, were it otherwise, any conviction founded on such uncorroborated evidence should, regardless of warning, be set aside as unsafe and unsatisfactory. Indeed, in cases where a conviction would not be unsafe and unsatisfactory notwithstanding that the evidence of the complainant is uncorroborated in relation to one or more of the elements of the offence, an unqualified warning that it would be dangerous to convict on such evidence arguably constitutes an encouragement of a miscarriage of justice.

5. Another problem about a general rule of practice requiring the giving of such an unqualified warning is that it inevitably involves an element of disparagement of the complainant in that it places the complainant in a special category of suspect witnesses. The effect of that is that a requirement that a jury be warned that it is dangerous to act on the uncorroborated evidence of a complainant inevitably represents a strong discouragement to the intelligent victim of a sexual assault, particularly one committed in a domestic context where corroboration of the complainant's testimony in relation to all elements of the alleged offence is unlikely, against complaining to the authorities or co-operating in the prosecution of the offender.

6. In these circumstances, it is not surprising that one can find support in the cases for a formulation of the relevant rule of practice in a way that does not involve any general unqualified proposition about it being "dangerous" or "unsafe" to act on the uncorroborated evidence of the victim of an alleged sexual offence. For example, in Hargan v. The King (1919) 27 CLR 13, the requisite warning was framed in terms of "should hesitate long" (per Barton J. at p 20); "to scrutinize with very special care" (per Isaacs J. at p 24); and to "carefully" weigh (per Rich J. at p 25). In the State from which the present application for special leave to appeal comes (Western Australia), Burt C.J. has already adopted that type of formulation. In Miller v. The Queen (unreported, 23 December 1987), his Honour said:

"But in a case, which is this case, in which there is no corroboration I think that: '.... The better direction is that a jury be told that they may act on the word of the woman alone but should exercise considerable caution before doing so, because of the ease with which the charge is made and the difficulty which may attend its rebuttal'."

7. In Kelleher itself, Gibbs J. qualified (at p 553) what his Honour saw as the requisite warning of danger (see above) by the comment, presumably to be communicated to the jury, that "the members of the jury may act upon that testimony if, after scrutinizing it with great care, and paying heed to the warning, they are satisfied of its truth and accuracy". Subject to two qualifications, I agree with Burt C.J. that, even in cases where the rule of practice has not been rendered inapplicable, the preferable warning is one couched in terms of the need to exercise considerable caution in acting on the word of the complainant alone. The first qualification is that I would expand the warning, in accordance with Gibbs J.'s comments, to refer to the need to scrutinize the evidence with great care and to exercise considerable caution. The second qualification is that I do not think that the direction should be explained by reference to "the ease with which the charge is made and the difficulty which may attend its rebuttal". The distress and even humiliation to which a complainant in a sexual case is commonly subjected seem to me to make the first limb of that explanation inappropriate, particularly when sexual assault within a family unit is involved. The second limb seems to me to run the risk of diverting the jury's attention from the proper working of the onus of proof in a criminal trial.

8. Section 36BE of the Evidence Act 1906 (W.A.) ("the Act") abolished, for Western Australia, any rule requiring that a warning be given to the jury to the effect that it is unsafe to convict on the uncorroborated evidence of a complainant on the trial of most classes of sexual offences. The section was introduced into the Act in 1985 (Act No. 74 of 1985, s.15) and replaced by a more general provision in 1988 (s.50 introduced by Act No. 70 of 1988). Section 36BE(1), which is the relevant statutory provision for the purposes of the present case, provided:

"On the trial of a person for a sexual assault offence or an offence under Chapter XXII of The Criminal Code - (a) the judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and (b) the judge shall not give a warning
to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances."

9. Paragraph (a) of s.36BE(1) closely follows the wording of statutory provisions which had previously been enacted in New South Wales (Crimes Act 1900 (N.S.W.), s.405C(2)), Victoria (Crimes Act 1958 (Vict.), s.62(3)) and South Australia (Evidence Act 1929 (S.A.), s.34i(5)). Paragraph (b) of the sub-section is indigenous to Western Australia.

10. When pars.(a) and (b) of s.36BE(1) are read together, their effect seems to me to be clear enough. As has been said, the section abolished the general rule of practice. With it, went any general notion that the evidence of a complainant in the case of a sexual offence is intrinsically suspect either by reason of the sex of the complainant or by reason of some general perception that allegations of sexual offences are easy to make. A general warning to the jury to the effect that the law regards it as unsafe to convict the accused on the uncorroborated evidence of the alleged victim or a specific warning to the effect that it would be unsafe to convict the particular accused on the uncorroborated evidence of the particular complainant is positively prohibited, unless the trial judge is "satisfied" that the circumstances of the particular case are such that such a warning is "justified". Even where the trial judge is of the view that the circumstances are such as to justify such a warning in a case to which the statutory provision applies, it would be to mislead the jury to convey to them either that the law of Western Australia regards complainants in such cases as an unreliable class of witness or that it is a general requirement of that law that juries be warned against acting merely on the evidence of such complainants (see, e.g., Williams v. The Queen (1987) 26 ACrimR 193, at p 202).

11. A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury. Section 36BE(1) neither negates that general responsibility in cases to which it applies nor precludes the giving of a warning of the kind referred to in the sub-section if the trial judge is satisfied that the particular circumstances of the case require it. As King C.J. pointed out in Pahuja v. The Queen (1987) 30 ACrimR 118, at p 125:

"In many sexual cases prudence will dictate the giving of some appropriate caution or warning. If, since the enactment of s 34i(5), a judge cautions or warns the jury as to their approach to the evidence of an alleged victim of a sexual offence, he does so as part of his duty to provide guidance to the jury as to the evidence and the facts. He is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at least from the general tenor of the summing up, that they are free to reject the judge's suggested approach to the evidence of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law. Subject to those considerations, he may give the jury a warning in the conventional terms or in any other terms which commend themselves to him."

12. The reference in the above passage to s.34i(5) was to the South Australian equivalent of s.36BE(1)(a). The fact that the South Australian provisions contain no equivalent of s.36BE(1)(b) does not destroy the relevance of King C.J.'s comments since the prohibition of s.36BE(1)(b) does not preclude a trial judge from giving an appropriate warning wherever he considers it to be "justified" in the particular circumstances of the particular case.

13. The decision of a trial judge that he or she is or is not "satisfied" that a warning is "justified" in the circumstances of a particular case will necessarily involve a significant element of discretionary judgment. A trial judge's summing up to the jury must be framed to take account of matters of which an appellate court will commonly be ignorant, such as the atmosphere of the trial, the true impact of cross-examination the real forensic issues and the content of addresses of counsel. It is not the function of an appellate court further to fetter the controlled discretion which the statute vests in a trial judge by seeking to frame in advance categories of case in which a trial judge must or should be satisfied that a s.36BE(1) warning is necessary or justified. Indeed, it would, in my view, be to undermine the legislative intent to be discerned in s.36BE(1) for an appellate court to seek to confine the trial judge's discretion by creating new categories of case, such as where there has been a very long delay before the complainant has made any complaint to the authorities, in which a trial judge must be "satisfied" that the relevant warning or caution is "justified". Nor is it the function of an appellate court subsequently to intervene merely for the purpose of substituting its own views about whether such a warning was justified in all the circumstances of the particular case. The essential function of an appellate court is to intervene where intervention is necessary to prevent possible miscarriage of justice. When complaint is made of the absence of a warning of the kind referred to in s.36BE(1)(a), the ultimate question for the appellate court is whether, viewed in the context of the summing up as a whole and of any other particular or general defects in it, the effect of the absence of a warning of that kind is that there is a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory. It is as a step towards answering that ultimate question that an appellate court will be concerned to form its own views about whether, making full allowance for the significant advantages enjoyed by the trial judge, the particular circumstances of the particular case were such that it was not open to the trial judge to fail to be satisfied that a warning of the relevant kind was justified.

14. The facts involved in the present case are set out in some detail in the joint judgment of Brennan, Dawson and Toohey JJ. I shall avoid unnecessary repetition of them. The offences with which the applicant was charged were offences to the trial of which s.36BE(1) applied. That being so, the trial judge was precluded from giving "a warning to the jury of the kind described in paragraph (a)" unless he was "satisfied that such a warning (was) justified in the circumstances". Before counsel addressed, an application was made by counsel for the applicant that the trial judge "give a direction in accordance with section 36BE". His Honour, having given the matter consideration overnight, decided that he was not satisfied that a warning of the kind referred to in s.36BE was justified in the circumstances. That being so, he declined to give it. An appeal to the Court of Criminal Appeal challenging the applicant's convictions by reason of the learned trial judge's failure to give the requested direction was dismissed. The present application for special leave to appeal is from the judgment of the Court of Criminal Appeal.

15. There is one aspect of the case which has caused me particular difficulty on the question whether a grant of special leave to appeal is appropriate. It is that it appears to me that the applicant's case has been presented to this Court in a way which is significantly different from the way in which it was presented to the Court of Criminal Appeal. Senior counsel for the applicant has, however, pointed to a number of passages in the transcript of argument in the Court of Criminal Appeal which bear upon the ultimate issue which has been debated in this Court and that issue falls, as a matter of language, within one of the two grounds of appeal (ground 2A) upon which the applicant relied in the Court of Criminal Appeal. With considerable hesitation, I have come to the view that the Court should embark upon a consideration of that issue. It is whether the applicant's convictions are, in all the circumstances, unsafe and unsatisfactory by reason of the trial judge's failure to give a warning of the kind described in s.36BE(1)(a). Since it is difficult to see how the convictions could properly be regarded as unsafe and unsatisfactory by reason of the absence of a particular warning if s.36BE(1) expressly prohibited the learned trial judge from giving it, the consideration of that ultimate issue necessarily involves consideration of the question whether, making due allowance for the advantages enjoyed by the trial judge, the circumstances of the case were such that it was not open to him to fail to be satisfied that such a warning was justified.

16. The evidence of the complainant reads convincingly. It is not surprising that the jury accepted her as an honest witness. The same could not be said of the evidence of the applicant. Two members of the Western Australian C.I.B. (Detective Sergeant Page and Senior Detective Stevens) gave evidence of a conversation they had with the applicant a little more than a year before the trial. Their evidence was completely unchallenged in cross-examination. Indeed, counsel for the defence made clear that absence of challenge by agreeing that the police officers remain in court during the evidence of other witnesses and of one another and by allowing Detective Stevens' evidence to be led in the form of a general expression of his agreement with the evidence of Detective Sergeant Page. The two detectives swore that, in the course of their interview of the applicant, they read to him the whole of the statement which had been made to them by the complainant and that the applicant's response had been that that statement was correct "except where she states I have been touching her genitals". The applicant's attention had been drawn by Detective Sergeant Page to a part of the complainant's statement in which she gave details of an occasion when the applicant had required her to watch a stallion serve a mare on his property. His response, when asked about that incident, had been that it was probably correct and that those sort of things occur on farms. He suggested to the detectives that the complaints against him were deliberate falsehoods invented for some ulterior purpose. He said: "I've got papers at home. It will come out in court." And later: "No, it will come out in court. I want everybody to know about it." In cross-examination at the trial, the applicant denied that the complainant's statement had ever been read to him. He denied that he had ever made the statement attributed to him about the incident with the horses. Effectively, he asserted that the incident must have been a complete fabrication and that the complainant's evidence about there having, at any relevant time, been a stallion on the property was simply wrong. He swore that the police officers had disclosed no details at all of the complainant's allegations. He denied any recollection about mentioning "papers at home" or swearing that things "will come out in court". In circumstances where, as has been said, the detectives' evidence had not been challenged at all in cross-examination and had obviously been accepted by defence counsel as accurate, it is not surprising that the jury plainly rejected the applicant as a witness.

17. All that having been said however, the fact remains that the only evidence of the applicant's guilt of the offences with which he was charged was the oral evidence of the complainant. On the trial, counsel for the applicant supported his application for a warning (pursuant to s.36BE(1)(b)) by reference to a number of suggested considerations. Those suggested considerations have been relied upon in this Court in support of the submission that, in the absence of an appropriate warning about the need for careful scrutiny of the complainant's evidence, the applicant's convictions were unsafe and unsatisfactory. They include: absence of contemporaneous complaint: that it is "very easy to make a complaint" but "very difficult ... to prove ... innocence"; and, the extraordinary period between the second of the alleged offences on the one hand and the first complaint and subsequent trial on the other. To them, in this Court, there was specifically added the circumstances of the alleged offences, including the age of the complainant at the time and the fact that the offences allegedly occurred after the complainant had been asleep and while she pretended to be still asleep.

18. Some of those suggested considerations can be shortly dealt with. The absence of contemporaneous complaint by the complainant to her mother was explained by the complainant in her evidence. She swore that she was frightened of the applicant who was her stepfather and that she was concerned about the effect complaint would have had upon her mother, upon the family unit and, by clear implication, upon the relationship between herself and her mother. In the context of the express statutory recognition (the Act, s.36BD(b)) that there may be good reasons for the absence of contemporaneous complaint in a case such as the present, the absence of such contemporaneous complaint could not properly be seen as of itself requiring that the judge be satisfied that a warning was justified. The same can be said of the assertion that "(i)'ts very easy to make a complaint ... and it is very difficult ... for an accused person to prove his innocence". Not only, in the context of the likely ordeal of a complainant and the advantage which the criminal onus confers upon the accused, is the substance of that assertion open to question. The generalisation involved in it underlay the rule of practice which s.36BE(1) has abolished.

19. The long effluxion of time (more than twenty years) between alleged offences and complaint and alleged offences and trial is of much greater significance. However, it would not, in my view, suffice of itself to produce the consequence either that it was not open to the learned trial judge to fail to be satisfied that a warning of the kind described in s.36BE(1)(a) was justified or that the verdict was unsafe and unsatisfactory in the absence of such a warning. True it is that such delay can be disadvantageous to an accused. In the context of the criminal onus of proof, it can be even more disadvantageous to the prosecution. Be that as it may, it does not seem to me that those possible disadvantages to an accused necessarily require a warning of the kind described in s.36BE(1)(a). The direction which would ordinarily be appropriate to deal with them would be one aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences. No direction in that regard was, however, sought by the applicant at the trial. It would seem likely that any difficulties which the applicant faced would have been thoroughly covered by his counsel in the course of his closing address since the learned trial judge expressly commented, in refusing to give a warning under s.36BE(1)(b), that "in relation to the effluxion of time comment from counsel can be made".

20. The real force of the applicant's case lies, however, in the combination of: (i) the circumstances of the alleged offences, and (ii) the possible effect, in the context of those circumstances, of the extraordinary lapse of time before complaint and trial. The gravamen of both offences was the alleged placing or pressing by the applicant of his hand on or against the complainant's genitalia. There was no suggestion of penetration, of violence or of contact with other than the applicant's hand. One of the alleged offences occurred when the complainant was six. The other when she was ten. On each occasion, the complainant was asleep immediately before the alleged offence. More than twenty years later, her recollection is that, on each occasion, she awoke to find the alleged offence being committed but pretended to remain asleep. She cannot remember whether she went back to sleep after the incident in the truck. After the other incident, the applicant carried her to her bed where she went back to sleep. It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance. 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. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant's guilt.

21. I am prepared to assume, in the absence of argument to the contrary, that a warning to the jury of the need, in the particular circumstances of the case, to scrutinize the evidence of the complainant with great care and to exercise considerable caution before convicting the applicant upon the basis of it alone would have been a warning of the kind referred to in s.36BE(1)(a) even though it did not involve the use of the word "danger". That being so, the question arises whether the circumstances of the case were such that it was not open to the learned trial judge, within the scope of a proper exercise of discretion, to fail to be "satisfied" that such a warning was "justified". For the reasons which I have given, it seems to me that, in the particular circumstances of this very unusual case involving a prosecution for non-violent "touching" offences within a family more than twenty years after their alleged occurrence, his Honour was in error in refusing to give such a warning to the jury when he was requested by the applicant's counsel to do so. There remains for consideration the ultimate question whether the effect of the absence of such a warning is, in all the circumstances, that the applicant's convictions are unsafe and unsatisfactory. In my view, it is.

22. It may be assumed that counsel for the applicant emphasized, in his address to the jury, the possibility that the long passage of time had caused what really lay in the fantasy or the semi-fantasy of a sleeping child to be converted, in the mind of the complainant, to a conviction of hard reality. The trial was a short one and the addresses of both counsel and the learned trial judge's summing up were all given before the luncheon adjournment on the second day. Obviously, defence submissions would still be clearly remembered by the jury. Nonetheless, it appears to me, after carefully reading and rereading the learned trial judge's summing up to the jury, that there is a real risk that, in the absence of any specific warning about the need to scrutinize the complainant's evidence with great care and caution before convicting the applicant on the basis of it alone, the jury may have seen the case merely in terms of whether they were satisfied beyond reasonable doubt that the complainant was a truthful witness and that the applicant was not and thereby failed to give proper consideration to the question whether, notwithstanding that the complainant was a truthful witness in the sense that she believed what she said, her evidence provided an inadequate foundation for a finding that the applicant's guilt of the two alleged offences had been proved beyond reasonable doubt. That being so, it appears to me that the applicant's convictions are unsafe and unsatisfactory and should be set aside.

23. Special leave to appeal should be granted. The appeal should be allowed and the order of the Court of Criminal Appeal dismissing the appeal to that court should be set aside. In lieu thereof, it should be ordered that the applicant's convictions be quashed and that there be a new trial.

McHUGH J. The first question in this application for special leave to appeal against convictions for unlawfully and indecently dealing with a girl under the age of fourteen years is whether the trial judge erred in holding that s.36BE of the Evidence Act 1906 (W.A.) precluded him from giving to the jury the traditional warning that it is unsafe to convict on the uncorroborated evidence of the complainant in a sexual offence case. If not, the second question in the application is whether in the circumstances of the case he should have instructed the jury that, before they could convict the applicant, they must scrutinise the complainant's testimony with great care.

2. Section 36BE enacted:
"(1) On the trial of a person for a sexual
assault offence or an offence under Chapter XXII of The Criminal Code - (a) the judge is not required by any rule of

law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and

(b) the judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances.

(2) Nothing in subsection (1) affects the operation of any law that provides that a person cannot be convicted of an offence upon the uncorroborated testimony of one witness or upon the evidence of a child whose evidence is admitted under section 101."

3. The applicant was convicted under s.183 of The Criminal Code (W.A.) with unlawfully and indecently dealing with the complainant, a girl then under the age of fourteen years. She was his stepdaughter. The first charge alleged that the offence took place on a date unknown between 22 February 1962 and 22 February 1963 when the complainant was about six years old. The second charge alleged that the offence took place on a date unknown between 22 February 1966 and 22 February 1967 when the complainant was about ten years old. No complaint was made in respect of either alleged offence until August 1987, over twenty years after the last alleged offence and over twenty-five years after the first alleged offence. The complainant testified that she had made no complaint to her mother because she "was always afraid of this man" and because her mother "was just very busy and I didn't want to cause my mum any more trouble".

4. The complainant alleged that the first offence occurred when she was asleep in the cabin of a truck driven by the applicant. She awoke during the journey to discover that he was fondling her in the genital area. She alleged that the second offence occurred when she had gone to sleep in the applicant's bed. She awoke during the night to find that her pyjama pants had been pulled down and that the accused was rubbing or touching her genital area and that "he was manipulating, moving, the labia around and looking very closely and pushing". The complainant alleged that, after some time, the applicant pulled up her pyjama pants, carried her back into her own room, and put her into bed. She also gave evidence of other incidents. She testified that on other occasions during her childhood the applicant "would manipulate my genital area" when teaching her to drive and that when drying her after a bath he would focus on her pubic area. She also testified that, when she was about twelve years of age, the applicant had taken her and her brother to watch a stallion and mare mate. She said that on another occasion when the applicant was working on a piece of equipment he asked her to help. She said that he was wearing shorts and that when he sat down she could see "his genitals hanging out". Her evidence concerning the alleged offences was uncorroborated.

5. At the trial, counsel for the applicant submitted that the circumstances justified the trial judge giving the jury a warning pursuant to s.36BE(1)(b). His Honour declined to give the warning. He noted that counsel would be able to comment in his address "in relation to the effluxion of time".

6. Section 36BE(1)(a) abolished the rule that in sexual cases a judge should warn the jury that, although corroboration is not required as a matter of law, it is unsafe to convict on the uncorroborated testimony of the complainant. This rule became entrenched as a rule of practice soon after the establishment of the Courts of Criminal Appeal in England and Australia. In Hargan v. The King (1919) 27 CLR 13, at p 24, Isaacs J. said that "the practice is so well established as to have, as was said of the analogous case of accomplices, 'almost the reverence of a rule of law'". However, the rule did not require that the warning take any particular form. In Hargan, Barton J. said (at pp 19-20) that, where the evidence of the complainant was uncorroborated, "the jury should be warned against accepting it unless after the most careful scrutiny". Isaacs J. said (at p 24) that, although corroboration was not strictly essential, it was "necessary to scrutinize with very special care the evidence of the prosecutrix before accepting it so as to condemn the accused". Rich J. said (at p 25) that there had been "a miscarriage of justice owing to the absence of warning to the jury not to convict on uncorroborated evidence except after carefully weighing the evidence". However, with the passage of the years, the courts began to express the warning in more emphatic terms.

7. In the course of his influential judgment in Reg. v. Henry; Reg. v. Manning (1968) 53 CrAppR 150, Salmon L.J. said (at pp 153-154):
"What the judge has to do is to use clear and
simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all. The judge should then go on to tell the jury that, bearing that warning well in mind, they have to look at the particular facts of the particular case and if, having given full weight to the warning, they come to the conclusion that in the particular case the woman or girl without any real doubt is speaking the truth, then the fact that there is no corroboration matters not at all; they are entitled to convict."

8. The rule that a jury must be warned that it is unsafe to convict on the uncorroborated evidence of a complainant in a sexual case applied irrespective of the gender of the complainant. But its greatest effect was naturally felt in cases of rape and indecent assault on women. Those cases comprised, and still comprise, the great bulk of cases of sexual offences brought before the courts. Moreover, since the judge was required to give the warning irrespective of the particular circumstances of the case, it applied to all uncorroborated complainants. In Reg. v. Hester (1973) AC 296, at p 324, Lord Diplock branded the evidence of witnesses whose evidence requires a warning "as 'suspect' evidence and the witnesses who give it as 'suspect' witnesses". These epithets soon gained currency. In an era more sensitive to stigmatising an individual by reference to the alleged characteristics of a group to which he or she belongs, it was almost inevitable that women would demand the removal of a rule which branded many female complainants as suspect witnesses who gave suspect evidence. As a result, New South Wales, Victoria and South Australia as well as Western Australia have passed laws in terms comparable to those of s.36BE(1)(a): see the Crimes Act 1900 (N.S.W.), s.405C(2); Crimes Act 1958 (Vict.), s.62(3); Evidence Act 1929 (S.A.), s.34i(5).

9. While the object of s.36BE(1)(a) was to abolish the need for a warning of the relevant kind, the words "the judge is not required" show that, but for s.36BE(1)(b), the trial judge would have an unfettered discretion to give the conventional warning to a jury. Hence, s.36BE(1)(b) was enacted to fetter the discretion of the trial judge by requiring as a condition precedent a positive finding that "such a warning is justified in the circumstances". Thus, the effect of the two paragraphs is that a judge is no longer required to give a warning that it is unsafe to convict the accused on the uncorroborated evidence of the complainant, and he or she can only give the warning when satisfied that it is justified in the circumstances of the case. But if complainants, as a class, no longer belong to the category of suspect witnesses, how can a judge, under s.36BE(1)(b), apply the rule whose rationale s.36BE(1)(a) abolished?

10. The conventional warning was not based on the circumstances of the particular case. It was based upon the belief that, as a class, uncorroborated complainants in sexual matters were dangerous and unreliable witnesses. It is not easy to apply a rule, whose rationale was based on such a general consideration, to the circumstances of an individual case once the rationale of the rule is abolished. If the two paragraphs of s.36BE(1) are read literally, the trial judge can only give the warning when he or she is satisfied that the evidence establishes or is capable of establishing that the complainant is a member of a class whose evidence is unsafe to act upon unless corroborated. Yet the hypothesis on which par.(a) was enacted is that the evidence of complainants in sexual cases, as a class, is not unsafe to act upon. Upon what basis then, can the trial judge give the traditional warning? As I have pointed out, the rule was based on experience derived from other cases, not the circumstances of the individual case. Indeed, the jury were always instructed that the circumstances of the individual case afforded a reason for refusing to act on the basis of experience derived from other cases. cases.

11. Where the complainant has a history of making false allegations, a trial judge might be satisfied that a warning in terms of par.(a) should be given. But, without assuming the existence of the rationale which par.(a) rejects, it is not easy to see what other circumstances would justify the trial judge acting under par.(b) and giving the traditional warning. The legislature may not have intended to abolish the traditional rule. But that seems to be the practical effect of s.36BE(1)(b).

12. In the present case, there were no circumstances which would justify the judge in giving the jury the traditional warning. Delay in making the complaints would not justify the giving of that warning.

13. However, s.36BE does not prevent the evidence of complainants in sexual cases from being subject to the standard directions which are required to be given in appropriate circumstances in criminal cases: cf. Williams (1987) 26 ACrimR 193; Pahuja (1987) 30 ACrimR 118; Reg. v. Murray (1987) 11 NSWLR 12. Cases concerned with the uncorroborated evidence of complainants in sexual cases were perceived as "cases where the evidence suffers from some intrinsic lack of reliability going beyond the mere credibility of a witness": Carr v. The Queen (1988) 165 CLR 314, per Wilson and Dawson JJ. at p 319. If the evidence of a complainant appears potentially unreliable for a reason other than that he or she is making an uncorroborated allegation of a sexual offence, nothing in s.36BE prevents the trial judge from warning the jury of the potential unreliability of the evidence of the complainant.

14. In Bromley v. The Queen (1986) 161 CLR 315, Gibbs C.J. said (at p 319):
"What is required, in a case where the
evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence."

15. Except in the limited area marked out by s.36BE(1)(b), complainants in sexual cases no longer fall into a category of witnesses in relation to which the "full warning as to the necessity of corroboration must be given". If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case: Carr, at p 318.

16. In the present case both offences are alleged to have commenced when the complainant was asleep. She testified that on each occasion she pretended to remain asleep. She stated that after the incident in the applicant's bed she went back to sleep. She could not remember whether she went back to sleep after the incident in the truck. She was about six years old when she alleges that the first offence occurred, and about ten years old when she alleges that the second offence occurred. The complainant did not allege that penetration occurred or was attempted. Both offences were alleged to have occurred more than twenty years before the hearing.

17. The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev.ed.(1964), at pp 269-270.

18. No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, "I don't hate him but I do hate what he's done and the problems it's caused in my life". However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred.

19. 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 ascertain whether they contradicted or were inconsistent with the complainant's testimony.

20. Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge.

21. The failure to give any warning concerning the complainant's evidence means that the conviction must be regarded as unsatisfactory. The construction of s.36BE and its effect on the giving of a warning in a case where the evidence of a witness may be potentially unreliable are matters of public importance. Special leave to appeal should be granted. Regrettable as it is, the appeal must be allowed, the convictions quashed, and a new trial ordered.

22. The learned judge imposed a fine of $2,000 in respect of each charge. He did not think that either probation or a bond was required. In all the circumstances of the case, it is arguable that the interests of the public, the complainant, and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide.

Orders

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of Western Australia. In lieu thereof order that the appeal to that Court be allowed, that the convictions be quashed and that there be a new trial.