R v B, J - [2009] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, J
[2009] SASC 110
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
30 April 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
Appeal against conviction - appellant convicted of three counts of gross indecency - complainant the appellant's natural daughter - no corroborative evidence supporting complainant's testimony - length of time elapsed between offences and complaint up to five and a half years - appellant did not give evidence - appellant argues trial judge failed to give sufficient warnings regarding the reliability of the complainant's evidence - argues trial judge should have warned the jury of complainant's mother's fixation with child abuse - of complainant's mother giving the complainant a book on child abuse at about the time of complaint - and that complainant had earlier opportunities to report appellant's conduct to counsellor but did not do so - also complains as to the sufficiency of Longman warning given by trial judge - whether judge instructing jury that complainant's conduct in failing to make a prompt complaint not necessarily open to criticism was an error.
Held: complaints made by appellant regarding mother's influence on complainant and failure of complainant to complain to counsellor more in the nature of defence arguments than factors which might lead to a perceptible miscarriage of justice - trial judge gave clear direction to scrutinise evidence of complainant with great care - trial judge correct not to direct jury that it would be dangerous or unsafe to convict on the complainant's unsupported evidence - whether or not a Longman warning should be given depends upon the circumstances of the case - trial judge gave a balanced direction on failure to complain - any forensic disadvantage suffered by the accused from delay in complaint would have been apparent to the jury - no error in instructing jury that the complainant's delay in making a complaint not necessarily open to criticism - warnings of trial judge apt to meet circumstances of the case - appeal dismissed.
Evidence Act 1929 (SA), s 34CB, s 34I(6a), 34L(5); Statutes Amendment (Evidence and Procedure) Act 2008 (SA), s 16, referred to.
Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343; R v Murray (1987) 11 NSWLR 12, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Longman warning", "late complaint"

R v B, J
[2009] SASC 110
Court of Criminal Appeal: Doyle CJ, Vanstone and White JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by Vanstone J.
I add the following brief observations.
In this case, as in others, it was argued that the case called for a Longman warning, that one was not given, and that accordingly there was a perceptible risk of a miscarriage of justice and that the appeal should be allowed. This submission invokes the decision of the High Court in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
The legal principle applied by the High Court in Longman was expressed by Brennan, Dawson and Toohey JJ at 86 as follows:
... 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 (1986) 161 CLR 315 at 319, 323-325; Carr v The Queen (1988) 165 CLR 314 at 330.
To the same effect see Deane J at 95-96 and McHugh J at 107.
As all members of the Court emphasised in Longman, the terms of the warning will depend on the particular circumstances of the case.
In Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 the High Court at [20] again reminded Australian courts of:
[20]... the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case ...
When the circumstances of a case call for a warning to be given, the warning (however expressed) should take the form of a direction to the jury, as distinct from a comment on the facts. This is the case for the reason given by Gleeson CJ, Gummow, Kirby and Kiefel JJ in Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 at [16], where their Honours said:
[16]The distinction between a direction and a comment by a trial judge is referred to in Azzopardi v The Queen (2001) 205 CLR 50 at 69-70 [49]-[52]. It reflects the fundamental division of functions in a criminal trial between the judge and the jury. The distinction is important. Telling a jury that they may attach particular significance to a fact, or in this case suggesting that other evidence may be considered of greater weight, is comment. Because it is comment it may be ignored by the jury, a matter about which the jury should be told. A direction, on the other hand, may contain warnings about the care needed in assessing some evidence or the use to which it may be put. A direction is something which the law requires the trial judge to give to the jury and which they must heed.
Footnote omitted
As I have said, what is called for is a direction, but the manner in which the warning is conveyed will depend upon the circumstances of the case. In some cases it will suffice to tell the jury of the need to scrutinise the evidence in question with great care: see Robinson at [26]. In other cases it may be necessary to tell the jury that it would be dangerous to convict on the evidence of the complainant alone, unless the jury, scrutinising the evidence with great care, and paying heed to the warning, is satisfied of the truth and accuracy of the evidence: see Longman, Brennan, Dawson and Toohey JJ at 91. On the other hand, in Longman Deane J considered that a reference to the need to scrutinise the evidence with great care and to exercise considerable caution would have sufficed: at 101-102. McHugh J referred to the need for “... a strong warning to the jury of the potential for error in the complainant’s testimony ...”, given with reference to the particular circumstances of the case: at 108-109.
Whether a direction that amounts to a warning is called for in a particular case is not to be decided by comparing the facts of the case in question with the facts of earlier cases. It is to be decided by applying the principle affirmed in Longman and Robinson to the facts of the case. I do not suggest that reference to decided cases is not permissible. But there is a distinct danger of cases being decided by reference to categories, or by reference to the presence of general factors such as delay or young age, rather than by reference to the principle, if a comparison of the case in question with decided cases is used as the basis for a submission that a warning is called for. This danger was adverted to in Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 at [51] by Kirby J (who dissented in the result), by Callinan J at [131] and by Crennan J at [173].
In the instant case, I agree with the reasons given by Vanstone J for concluding that the Judge’s directions in the relevant respect were adequate. I note in particular that the Judge, in a passage set out in the reasons of Vanstone J, directed the jury that they “must scrutinise” the evidence of the complainant “with great care” before they could convict the accused. Subject to emphasising that point, as I have said, I agree with the reasons given by Vanstone J for concluding that the Judge’s directions were adequate.
VANSTONE J: The appellant was convicted after a trial in the Supreme Court before a jury for three offences of gross indecency. The jury also acquitted him for two charges of indecent assault. The complainant in all charges was the appellant’s daughter. There was no independent evidence supporting the allegations. This appeal is against the convictions. The three grounds of appeal attack the sufficiency of the judge’s directions to the jury relating to the evidence of the complainant and, in particular, the terms of a warning in respect of reliance upon her evidence.
Background
The complainant’s evidence was that counts 1 and 3 occurred when she was ten years of age. The charge was framed to take in the full year during which the girl was aged ten. Count 1 was the first occasion when she recalled “something happening”. The complainant described that she had gone to bed in the bedroom she shared with her sister and was attempting to fall asleep. Her sister was not there at this time. She said her father came to the bedroom door having recently arrived home from work. He removed his work clothes and left them at her bedroom door and then climbed into her bed, naked. She felt him pull her close to his body, he being behind her. She felt his erect penis rubbing and pressing hard against her lower back. She also felt his body moving. That continued for a few minutes. The complainant described hearing him mumbling, as opposed to talking, at times during that incident. Afterwards he remained in the room and went to sleep. The complainant said that he had slept in her room on other occasions, an arrangement confirmed by her mother. That often occurred when the complainant’s sister fell asleep in her parents’ bedroom.
Count 3 was described as having occurred “probably a few weeks later”. The complainant said that it was late at night when her father came into her room wearing only his underwear. He then climbed into bed with her and pulled her body to his. She could then feel him start to masturbate. She could feel the pressure of his hand hitting against her back and heard his breathing quicken. This continued for “a few minutes”. She did not know whether he ejaculated. Afterwards he went to sleep.
Count 2 was said to have occurred about a year after counts 1 and 3. The complainant described that on this occasion she was sleeping in her bedroom late at night. The appellant walked into the room, naked, and was masturbating. Although the bedroom light was off, the kitchen light was such as to illuminate his figure. She could see that his penis was erect. The movement of his hand on it quickened and he was getting excited. After some minutes he left her room. Nothing was said.
The complainant said that her sister was not in the bedroom on any of these three occasions.
Counts 4 and 5 related to specific occasions when the whole family was away from the home. The first was in a motor vehicle at a drive-in and the second was said to have occurred on Christmas day at a family celebration at her aunt’s house. On both occasions other persons were in the immediate vicinity of the complainant and the appellant when she described him touching her vagina over her clothes. As I mentioned, the appellant was acquitted of those charges. There were material points of distinction between those two charges and the first three and no complaint of inconsistent verdicts is made. There was also evidence of uncharged acts on other occasions.
The first complaint about the appellant’s conduct was made in May 2007 to the complainant’s mother. The period then elapsed since count 1 was between four and a half and five and a half years, depending on the girl’s age at the time it occurred. The period then elapsed since count 5 was one and a half years. By the time of the trial the complainant was 17 years old.
The appellant was interviewed on 19 July 2007 and denied the allegations. At trial, a police officer produced an edited videotape of the lengthy interview. The complainant’s mother gave evidence as to the complaint and about the sleeping arrangements. She said that apart from the appellant going to the sisters’ room when the younger daughter was asleep in the main bedroom, he would also sleep there if he came home late from work.
There were no other witnesses at trial, the appellant electing to remain mute.
The arguments on appeal
Senior counsel for the appellant argued that there were specific features of the evidence which should have attracted a strong warning by the trial judge against the dangers of convicting. Several of these were related to the delayed complaint.
First he pointed to the acute concern of the complainant’s mother about the topic of child sexual abuse. The complainant agreed with the suggestion of counsel at trial that the mother was “fixated and somewhat obsessed with sexual abuse”. Consequently the children were well versed in the need to report to their parents any inappropriate behaviour by an outsider. Counsel suggested that the failure to complain needed to be evaluated, and was more significant, in that light.
Senior counsel also pointed to the evidence that, subsequent to the last alleged incident and to the time when the appellant left the marital home for the last time in early 2006, the complainant was referred by her general practitioner to the Child and Adolescent Mental Health Services and was interviewed by a psychologist on a number of occasions. No complaint was made to that person. In cross-examination the complainant agreed that she had such counselling because she suffered from anxiety and panic attacks. She agreed that the topic of her mother having been sexually abused had come up in the discussions between herself and the psychologist, but that she had not mentioned her own sexual abuse by her father. Her explanation was that she did not want to talk about it and that when she was not required to speak of it she blocked it out. During one of the May 2006 visits to the psychologist she had been asked about her father and had said that she was angry with him, but she linked that to her father forming a new relationship. Again, she said that she did not disclose his sexual abuse of her because it was her own business, it happened to her and it was she who was hurt by it. Senior counsel suggested that the failure to complain to the psychologist in the circumstances described was a matter going to the complainant’s reliability and should have been the subject of a specific direction. When pressed by the cross-examiner as to what had led her to make the complaint later, she explained that, on a certain occasion, her sister had come home from seeing her father in company with his new partner’s three small boys and that the sister reported that he was being crude with them, pulling their pants down and making fun of them in the nude. The complainant was upset at this and determined that she should speak out to avoid something happening to them, such as it had to her.
Senior counsel next placed emphasis on the fact that, either on the occasion of the complaint being made, or near to that time, the complainant’s mother was reading a self-help book dealing with sexual abuse. At some point that book was given to the complainant so that she might read it and complete some sort of questionnaire within it, dealing with the feelings of a sexual abuse victim. At trial, counsel suggested to the complainant that, in the process of reading and responding to the contents of the self-help book, the complainant might have reconstructed past events in a way which falsely implicated her father. It was put to her that she was “confusing and expanding upon innocent things and that they [had] become sinister in [her] mind”. The complainant denied the suggestion. Further, both the complainant and her mother denied that the book was provided to the complainant prior to her making her complaint against the appellant. Nonetheless, senior counsel suggested that the judge should have reinforced a point made by defence counsel, to the effect that the self-help book might have corrupted the complainant’s memory of earlier, innocent events.
Additionally, senior counsel pointed to the complainant’s delay in reporting the appellant’s activities as having caused a forensic disadvantage, by precluding any biological examinations of the complainant, or of her bed.
All these matters were to be considered in light of the fact that the complainant’s evidence was not corroborated by other evidence.
Counsel then subjected the warning which was given by the judge to close analysis. In order to understand the points made it is necessary to set out the terms of the direction. It is also necessary to recall that under s 34I(6a) of the Evidence Act 1929, as it was at the time of the trial, the cross-examination of the complainant and the acknowledged delay in making the complaint meant that the judge was obliged to:
34I
…
(6a) …
(a)warn the jury that the alleged victim’s failure to make a complaint, or delay in making a complaint, does not necessarily meant the allegation is false; and
(b)inform the jury that the victim of a sexual offence could have valid reasons for failing to make a complaint or for delaying in making a complaint.
At the stage in which the judge turned to the prosecution case, he pointed out that it relied wholly upon the complainant’s evidence. He directed the jury that it must assess her evidence “very carefully” because it was unsupported by any other independent evidence. The judge then described the evidence going to each count. The direction as to the failure of complaint was as follows:
Ladies and gentlemen, there is another direction of law which I wish to give you which has arisen from the cross-examination of [the complainant]. You know that she told her mother about these events for the first time in May 2007. The fact of what she said to her mother is not evidence of the truth. As I have indicated, the only evidence of the truth is what she says in this courtroom, and that would depend upon your assessment of her. Also, because this complaint is so late, it cannot even be used as evidence of consistency of behaviour. You see, if she had complained to her mother or somebody else straight after these events, I would be directing you that that indeed supports her evidence, because it shows consistency of behaviour. It is what you would expect a person to do. If something happens and they complain about it, the fact that they complained about it, in a sense, is evidence that she has behaved in a consistent manner. As to her credibility, I cannot give that direction in this case because it is far too late. So it is not evidence of consistency of behaviour; namely, it is only evidence that she did that to give a historical context. She must have complained to someone sometime, otherwise we would not be here, and that is when she did it. It is not evidence of the truth and it is not evidence of consistency of behaviour. You have heard the criticisms made of her by [defence counsel] for the lateness of that complaint, and you will bear those in mind.
However, I direct you as a matter of law – and it is a matter for you – the fact that she is an alleged victim in a sexual matter and has not complained soon after the events are alleged to have happened, is not something that she can necessarily be criticised for, because there are many reasons why a person who has been sexually assaulted might not have complained – and you have heard her reasons in this case.
I have read out to you why she did not tell CAMHS about the matter and it is a matter for you to assess. You might bear in mind the family’s situation or the dynamics between her and her mother. They are all matters which you should take into account, but I tell you as a matter of law, it is not a matter which she can necessarily be criticised for, but at the same time, as a matter of fairness, I ask you to bear in mind [defence counsel’s] argument about the lack of a proper complaint.

A little later in his summing up the judge made some concluding remarks which included a reminder that each element needed to be proved beyond reasonable doubt, a reminder that the prosecution relied solely on the complainant’s evidence and that there was no supporting evidence for it and a reminder that there had been no recent complaint, with a reference back to his directions about that topic. He then went on:
As the evidence depends solely upon [the complainant], and she has made no recent complaint, I tell you and I direct, you that before you can convict the accused on any count, you must scrutinise her evidence with great care - which I am sure you will do. It is only after you accept that she is telling the truth and she is reliable, and you find that to be so beyond reasonable doubt in relation to the salient matters in relation to each charge - it is only then that you can find the accused guilty of any of the offences.
Analysis
Counsel argued that the reference to the complainant not “necessarily” being open to criticism for a lack of timely complaint could have misled the jury to a belief that no criticism could be levelled at her in terms of that failing. That argument has to be evaluated in the context of the trial as a whole. It must be remembered that the entire emphasis of defence counsel in his cross-examination and in his address to the jury was on the topic of the delayed complaint and upon the possibility that the complainant’s memories about what was in fact innocent behaviour might have become distorted by exposure to other influences. In those circumstances it is hard to imagine that the jury could have overlooked the thrust of the judge’s direction about a delay in complaint. He had specifically told the jury that a prompt complaint was what would be expected of a victim and could have been seen, in other circumstances, as consistency of behaviour. In the context of the trial it must have been self-evident that the delay in complaining could be referable to untruthfulness, or reconstruction of innocent events. Counsel agreed that there was nothing incorrect in what was said by the judge. In my opinion the direction was a balanced one and the criticism is not justified.
As to forensic disadvantage, counsel conceded that, except for the lack of biological evidence which might have been available had the complaint been made immediately, the other dangers to which reference was made were dangers which would have been apparent to the jury. Even the availability of biological evidence is arguably a matter well within a contemporary jury’s knowledge. But I note that no submission was made to the jury in relation to that topic, or any other form of forensic disadvantage, in defence counsel’s address.
In Longman (1989) 168 CLR 79, the critical factor which was said to have called for a warning about delay was said to be the fact that it would otherwise not have been apparent to the jury that, with the passage of many years, the accused had lost the means to adequately test the appellant’s evidence. This fact, together with other features of the complainant’s evidence, should have been the subject of a warning: at 91; 108. The same critical feature was emphasised in Crampton v The Queen (2000) 206 CLR 161 at 181 and Doggett v The Queen (2001) 208 CLR 343 at 356, 379-380. The fact that forensic disadvantage was “unlikely” to have occurred (Callinan J at 274) and that “no specific or particular forensic disadvantage to the appellant, as a result of delay, was identified to the trial judge” (Crennan J at 287, Heydon J agreeing) was an important reason why in the circumstances pertaining in Tully v The Queen (2006) 230 CLR 234 no warning was found to have been required. Crennan J said:
Neither Longman nor Robinson is authority for the proposition that it is imperative to give a warning in accordance with Longman when faced with the specific concatenation of circumstances identified by the appellant. The question is whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice. There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences. (citing R v Miletic [1997] 1 VR 593 at 606 per Winneke P, Charles and Callaway JJA)
Senior counsel referred to the judgment of the Chief Justice in R v K (1997) 68 SASR 405, a judgment concurred in by Lander J. There, Doyle CJ referred to the general principle discussed in Longman that an obligation upon a trial judge to give a warning arises where one is necessary to avoid a perceptible risk of miscarriage of justice: Longman at 86 per Brennan, Dawson, Toohey JJ and at 95-96 per Deane J. The Chief Justice noted at 409 that the warning would respond to the particular circumstances of the case including the explanation for the failure to complain at an earlier time. It must be given with the authority of the judge, rather than taking the form of a reminder of counsel’s arguments: 410. He assessed a delay between conduct and first complaint by the male victim of five or six years as “substantial”. In K’s case there was evidence from the boy’s mother that K was the complainant’s favourite uncle and that he often went to K’s house. The boy himself said he “respected him”. The complaint was not volunteered by the boy, but drawn from him through persistent questioning by his sister. The need for a warning was said to arise not only from the length of the delay, but also from the way in which the complaint was elicited and because of the victim’s disturbed behaviour as a child, pre-dating his parents’ separation, and the risk that he had concocted the allegation.
I have already set out the particular features of the evidence which counsel upon the appeal pressed as warranting a warning stronger than the one given by the trial judge. In my view, some of them can be set aside as defence arguments, warranting, at most, reiteration or comment, rather than factors which might lead to a perceptible risk of miscarriage, even when viewed in combination. I put in this category the failure to complain to the psychologist, the reference to the self-help book and the mother’s apparent preoccupation with her own sexual abuse as a child, apparently promoting an atmosphere in which the children could more readily raise sexual abuse issues. Unlike in K’s case and indeed Longman, here there are no particular features of the complainant’s account or general behaviour, such as to give rise to apprehension. For instance, there was no suggestion that the complainant was an untruthful person or that she had suffered from delusions in relation to other matters. She did not relate being awakened from sleep by the indecent touchings, nor did she describe the events as being dream-like. There was no evidence that she sought the appellant’s company (although I would not afford that much weight). This was not a case where an earlier complaint might have enabled the appellant to prove that he had no opportunity to commit the offences. Indeed, the delay was not as long as in other cases and, as discussed, no forensic difficulty was demonstrated. Unlike in the cases of both Longman and K, there was no sworn evidence in opposition to the account the complainant gave. The points made by defence counsel in cross-examination of the complainant and in his final address, raised considerations, the force of which would have been apparent to the jury, as much as to the judge.
A reading of the entirety of her evidence demonstrates that the complainant was a consistent and persuasive witness, notwithstanding a lengthy cross-examination. The reasons she gave for ultimately making her allegations against the appellant, after long being silent, were well understandable. As well, the direction to scrutinise her evidence on account of it being unsupported by other evidence, which followed reference to the delayed complaint, carried with it the authority of the judge. It was a direction, as opposed to a comment, and the judge had earlier told the jury that it was obliged to follow his directions on the law.
In my view it would have been wrong to direct the jury that it was “dangerous” or “unsafe” to convict on the complainant’s unsupported evidence. There was no warrant for such a direction. Just as trial judges must be alert to addressing any risk of a perceived miscarriage with an appropriate warning, so must judges be careful not to reintroduce into these cases anything like the standard form corroboration warnings which the evidence of complainants of sexual offences used to attract; the rule of practice in relation to which was abolished by the Parliament: s 34i(5) Evidence Act, inserted by No 90 of 1984 which commenced 1 January 1985, re-numbered as s 34L(5) Evidence Act by No 7 of 2008, which commenced 23 November 2008. Such warning as the judge gave in this case seems to have been given only for the reason that the complainant’s evidence was unsupported. (See R v Murray (1987) 11 NSWLR 12 at 19 discussed in Robinson at 169.)
It is instructive that in Tully, the dissenting justices Kirby and Hayne JJ, were of the opinion that a warning was required. Kirby J, explicitly, would not have had it contain the words “dangerous” or “unsafe”: at [59]. I read Hayne J at [89] to be of the same view.
I note in passing that by s 16 of the Statutes Amendment (Evidence and Procedure) Act 2008, the rule requiring a judge to give what has been known as the Longman warning has been abolished. In future cases governed by new provisions inserted into the Evidence Act, a trial judge will not be entitled to give a “warning” in respect of the features which would previously have led to warning in terms of Longman. The judge will not be required to assume any forensic disadvantage to the accused – but will have to form an opinion about it based on the evidence – and will not be entitled to use words such as “dangerous” or “unsafe” in relation to the prospect of a conviction based on such evidence: s 34CB Evidence Act 1929. In Queen v Seigneur [2009] SASC 59, a case stated for consideration of the Full Court relating to the transitional provision regulating the commencement of sections of this amending Act, it was determined that amendments (which include s 34CB) would apply to trials upon any information filed in the court of trial on or after 23 November 2008, being the date the provisions came into effect. Clearly, even if this Court were to allow this appeal, the re-trial of these charges would be governed by the law previously in effect.
Conclusion
I consider that the terms of the warning were apt to meet the circumstances of the case. Nothing further was called for. I would dismiss the appeal.
WHITE J: I would dismiss the appeal. I agree with the reasons of Vanstone J and with the further reasons given by the Chief Justice.