Malone v The Queen

This matter concerns an application by John Malone for an extension of time to seek special leave to appeal to the High Court of Australia. Malone was convicted in the Supreme Court of Western Australia on 8 August 1989 of one count of rape, committed between 1 January 1982 and 31 December 1982, and sentenced to 12 years imprisonment. He subsequently appealed his conviction and sentence to the Court of Criminal Appeal, which dismissed his appeal.

The legal issues before the High Court were whether the trial judge should have warned the jury about the potential injustice arising from the significant delay between the alleged commission of the offence and its prosecution, particularly given the lack of specificity of the offence. Additionally, the Court was asked to consider whether a trial judge is bound to caution the jury regarding the increased likelihood of error and fallibility of memory in a witness's testimony due to such delays, especially when the alleged events occurred during the witness's childhood. Malone argued that the Court of Criminal Appeal incorrectly distinguished the principles established in *Longman* from his case.

The applicant contended that the seven-year delay between the alleged offence and prosecution, coupled with the complainant being only 10 years old at the time of the offence and six years old when an interaction with the accused was apparently evidenced, warranted a specific warning to the jury. He argued that the Court of Criminal Appeal erred in differentiating his case from *Longman*, despite similarities in the complainant's age and the uncorroborated nature of the evidence, and the prolonged period over which the offences allegedly occurred. The applicant sought to demonstrate that the principles regarding delay and witness fallibility, as articulated in *Longman*, should have been applied more directly to his circumstances.