R v BFB

R v BFB
[2003] SASC 411
Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ

DOYLE CJ: The Court allowed Mr B’s appeal against four convictions recorded against him in the District Court, set aside the convictions and ordered a retrial on the Information. We did so after granting leave to appeal on certain grounds on which a single Judge had refused leave to appeal.
I now give my reasons for joining in that order.
Facts
Mr B was charged with four counts of unlawful sexual intercourse with a person under 12 years of age. He pleaded not guilty.
The trial took place at the end of September 2002. The information alleged that count one was committed on 2 February 1997, a little more than five and a half years before the trial. Counts two, three and four were alleged to have occurred on the one occasion, between April 1997 and August 1997, a little over five years before the trial.
I will refer to the victim of the alleged offences as AM. Her parents were friendly with Mr B and his family. AM was friendly with Mr B’s daughter. In 1997 AM was eight years of age.
AM said that on 2 February 1997 her mother took her and her two sisters to the beach. Mr B and his family joined them. AM’s mother and Mr B’s wife left the four children in Mr B’s care for a time. The children were in the water. AM stayed in the shallows with Mr B, the other children going further out into the water. AM said that Mr B put her on his lap, put his hand under her bathers and put a finger into her vagina. The lower part of her body was under the water when he did this. Mr B removed his finger when the other children came near. AM said nothing about the incident, because she was “too scared”. AM said this was “the first thing that I remember that happened”, meaning the first such incident.
The prosecutor asked AM if this was the only time that Mr B touched her, and AM said it happened again after the incident at the beach.
AM identified the incidents the subject of counts two, three and four as occurring on an occasion when AM stayed at Mr B’s house for a “sleepover”. She had stayed there quite often.
AM said that she and Mr B’s daughter were watching television. AM was wearing a nightie and knickers. They were in the family room. Mr B’s daughter was sitting in a chair, and AM was sitting on a couch, Mr B being next to her. Mrs B had gone to bed and Mr B’s daughter was asleep.
AM said that Mr B went to the bathroom, returned with a wet flannel, and told AM to wipe her vagina with the flannel. Mr B then told AM to pull up her nightie, took her knickers down “a little bit” and put his finger into her vagina. That was the subject of count two.
Mr B then “pulled down his pants” and told AM to suck on his penis, which she did. That was the subject of count three.
Mr B then told AM to go into his daughter’s bedroom and told her to crouch on the bed. He lifted her nightie up on her back, and pulled her knickers down to her knees. He then inserted his penis into her vagina from the rear. That was the subject of court four.
The four incidents were described quite briefly by AM, in what reads as a matter of fact way.
At the end of the evidence in chief the following evidence was given by AM:
“Q.    Was that the last time that anything ever happened with you and B.
A.     No.
Q.     Was that the last time that you can remember.
A.     Yes.
Q.     Can you remember anything else that happened
A.     No, I just remember it happening again, but I can’t remember it in full detail or anything like that.
Q.     The two times that you’ve told us about, the time at Glenelg and the time when you stayed over – when you were playing netball, are they the two times that you remember best.
A.     Yes.
Q.     That you can remember the most detail about.
A.     Yes.
Q.     But is this right: do you think it happened again but you can’t remember anything else about it.
A.     Yes.
Q.     Did you tell anyone that night or the next morning.
A.     No.”
No objection was made then or later to the giving of this evidence. The evidence might have been unexpected, because in her opening the prosecutor had told the jury that count four was the last occasion on which it was alleged that Mr B had sexually interfered with AM. Not surprisingly, defence counsel did not cross-examine AM on this evidence.
Other evidence confirmed that the two families were at the beach together in February 1997, that Mr B was in the water with AM, but went no further than that. Mr B gave evidence and did not deny that he was in the water, but he denied being alone with AM or having her on his lap. It was not disputed that AM stayed at Mr B’s house on a number of occasions. There was no evidence to support AM’s evidence about count one, apart from the evidence that the two families were at the beach together. There was no evidence to support her evidence about counts two, three and four.
There was no direct evidence about when AM first complained about Mr B’s conduct. There was evidence that AM made a statement to the police in September 2001. There was evidence that Mr B was arrested on 25 November 2001. It seems reasonable to infer that the first complaint by AM was in about September 2001. I add that there was evidence that AM was examined by a doctor in September 2001. Not surprisingly, at that stage there was no sign of any injury to AM.
Issues on appeal
Three matters were argued on appeal.
Mr Schapel, counsel for Mr B, submitted that the evidence about the uncharged acts, at the end of AM’s evidence in chief, was inadmissible, and that the direction that the Judge gave about the evidence was inadequate.
He submitted that the Judge should have directed the jury that it was unsafe to convict Mr B because AM’s evidence was unsupported, her story was unlikely, and because of the delay.
Mr Schapel submitted separately that the Judge failed to give an adequate direction about the significance of the time that elapsed between the alleged offences and the complaint being brought to Mr B’s attention, or between the offences and the trial. He submitted that the Judge should have given what is called a Longman warning, telling the jury that in the circumstances it was dangerous to convict on the evidence of AM alone.
Uncharged Acts
Evidence that an accused person has committed offences other than those charged is not usually admissible if led for the purpose of showing that the accused is a person likely from his conduct to have committed the offence charged. I discussed the application of this principle at some length in R v Nieterink [1999] SASC 560; (1999) 76 SASR 56. I will not repeat that discussion here.
Such evidence may be used in the way suggested if it meets the stringent test established by the High Court in Pfennig v The Queen (1995) 182 CLR 461. The evidence in question did not meet that test. Nor was it suggested at trial or on appeal that it did.
Sometimes evidence of acts of a criminal or discreditable nature (uncharged acts) will be admissible although it does not meet the test in Pfennig. I summarised the circumstances in which such evidence may be admissible in Nieterink at [75]-[80].
The evidence in question was not admissible on that basis. It was not evidence that helped the jury understand how the charged incidents came about. It appeared to relate to later incidents. It was not part of the lead up to the incidents charged. It was so general that it cannot be said to have put the charged incidents in a context that the jury needed to have, to understand the charged incidents. The evidence was so vague that it did not help to explain the fact that no complaint was apparently made to anyone at about the time of the incidents in question, or until about five years later. In short, the admissibility of the evidence is not supported by circumstances that often will support the admission of evidence of uncharged acts.
Even if the admission of the evidence could be supported on one of these bases, the evidence should have been excluded because its prejudicial effect outweighed its probative value. The evidence was prejudicial because it was an allegation of other offences, and it was given in such general terms that it was impossible for the defence to cross-examine meaningfully on the evidence. Any probative value that it might have was so slight that it was clearly outweighed by its prejudicial effect.
The evidence should not have been admitted. I say this while recognising that the evidence may have taken everyone by surprise.
In the circumstances it was not safe for the Judge to ignore the evidence. The Judge told the jury not to use this evidence at all, unless satisfied of its truth beyond reasonable doubt. He told them that they might well think it was too vague to be of much use at all. He told them that it could not be used as proof of the charges against Mr B. But he told the jury that if they were satisfied of the truth of this evidence, they might “wish to consider whether it could have had any bearing on these four matters not being the subject of a complaint for quite a long time”.
The Judge did his best to deal with the evidence, but in my opinion he should have directed the jury to disregard it entirely. Such vague evidence could not explain the delay. There was no indication of when the further acts occurred in relation to the making of a statement to the police. The direction that the Judge gave might have undermined what he said to the jury about the question of delay.
I regard the evidence as highly prejudicial. Mr B had no means of contesting it. Despite the Judge’s understandable attempts to caution the jury about using the evidence, in the end it was left to them as evidence that could be acted upon in a way that might support the credibility of AM. The jury should have been told to disregard the evidence.
In the circumstances there is a real risk of a miscarriage of justice. The appeal must be allowed on this ground.
Direction about unsupported evidence
I do not accept the submission that because AM’s evidence was unsupported, the Judge should have directed the jury that it was unsafe to convict. The Judge reminded the jury that only AM and Mr B were in a position to give evidence about the alleged incidents. He adequately directed the jury about the need to scrutinise AM’s evidence with great care. He reminded them that AM was a young child, and that her age was a factor to be considered.
His directions in that respect were adequate.
Direction about delay
In Longman v The Queen (1999) 168 CLR 79 the High Court reminded trial judges that a warning must be given to a jury “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case:” Longman at 86 Brennan, Dawson and Toohey JJ. In that case it was held that the circumstances called for a warning.
Since then a number of cases have come before the High Court in which the Justices of the Court have had occasion to consider, in the context of sexual offences, when it would be sufficient for a trial judge to merely comment on, or bring the attention of the jury to, an aspect of a case that calls for some caution, and when it will be necessary to warn the jury that it would be dangerous or unsafe to convict on the evidence of the victim alone, unless the jury, scrutinising the evidence with great care, and considering the relevant circumstances and the warning, were satisfied of the truth and accuracy of the evidence. For convenience I will refer to this simply as a warning. The main cases are Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343.
These decisions in turn have received extensive consideration in decisions of intermediate appellate courts in Australia. It appears that trial judges are having difficulty in applying to cases involving sexual offences the principle considered in Longman. Longman and Doggett established that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning must be backed by the judge’s authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case.
I add that there are other circumstances in such cases that may call for a warning. In the present case the concern is with delay, coupled with forensic disadvantage to the accused, and I confine my attention to that topic.
The difficulty that trial judges are experiencing in this area is probably due to the fact that there are no hard and fast lines to be drawn. The issue is whether there is a circumstance in the case that gives rise to a perceptible risk of a miscarriage of justice, and accordingly gives rise to the need for a warning. That will depend on the circumstances of the case, the time that elapsed, and whether the accused is placed at a significant disadvantage. Sometimes a relatively short lapse of time will put the accused at a disadvantage. Sometimes a lengthy lapse of time will not put the accused at a disadvantage. It all depends on the circumstances. Alternatively, there may be a factor that calls for a comment rather than a warning. These are matters on which views can differ. Views have differed in appeal courts. Nor can trial judges resort to the easy course of giving a warning when there is a possibility that one might be called for. The giving of excessive and inappropriate warnings will be unfair to complainants, contrary to the public interest in a regularly conducted trial process, confusing to juries and runs the risk of returning this aspect of the law to an approach from which Parliament endeavoured to extract it, when Parliament enacted provisions such as s 34I(5) of the Evidence Act 1929 (SA).
It remains the task of trial judges, and of intermediate courts of appeal, to do their best to steer the right path in this area. It remains necessary to consider the time that has elapsed between the incident in question and notice to the accused person that a complaint has been made, or between that time and the commencement of the trial, the impact of that delay on the ability of the accused to present a defence, the nature of the prosecution case, and whether it rests substantially on the unsupported evidence of the complainant.
In R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 the Court of Criminal Appeal of New South Wales gave careful consideration to the case law. In the course of his reasons, Sully J formulated some propositions for the assistance of trial judges: at [95]. These propositions were supported by Wood CJ at CL: at [4]. Dowd J agreed also: at [119]. In particular, Sully J said:
“It seems to me that, as matters stand, a trial judge would be well advised to give a Longman direction unless it is possible to conclude reasonably; first, that the particular time lapse is so small that any reasonable mind would regard it as, in context, trifling; and secondly, that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47), “far-fetched or fanciful.”
In my respectful view that overstates things. I fully appreciate the desirability of giving clear guidance to trial judges, but it would be regrettable if courts responded by giving inappropriate and unnecessary warnings.
In this context I mention also the helpful review of authorities by Heydon JA in R v GPP [2001] NSWCCA 493; (2001) 129 A Crim R 1 at [18]-[80].
In the present case the period between the acts complained of and Mr B being spoken to by the police was about four years. The period between those acts and trial was about five years. The evidence of AM was unsupported by other evidence. The circumstances of the first count were such that even if there had been a prompt complaint, it may be that Mr B would not have been in any better position to test AM’s evidence. One cannot be sure of that, but it is no more than a possibility that a prompt complaint would have left him better able to defend himself. The lapse of time may well have prejudiced his position in relation to the other counts. Bearing in mind that AM often stayed at his house, that these offences were merely placed somewhere in a four month period, it would have been from a practical point of view impossible for Mr B to test AM’s evidence by reference to any memory that his wife and daughter might have had of the events in question, after the passage of about four years. He was placed at a disadvantage in that respect.
In relation to the evidence of the uncharged acts, the disadvantage was even more acute, although as to that it could also be said that the evidence was so general that he would have been at a significant disadvantage even if told of the allegations much earlier in the piece.
Although the period of time that elapsed is nowhere near the period of time that had elapsed in Longman, Crampton and Doggett, the application of the relevant principle does not depend upon a mechanical counting of years and months. As well, in a number of decisions courts have held that a warning is called for when the period of time that had elapsed was much less than in those cases. It may be that courts are becoming more concerned about the possibility of delay prejudicing the prosecution of defence cases.
I regard the present case as borderline, but on balance I consider that it did call for a warning along the lines of the warning referred to in Longman. I am influenced by the fact that the evidence of AM was unsupported, and by the fact that, from a practical point of view it was impossible for Mr B adequately to test AM’s evidence in relation to counts two, three and four. This is something that the jury might not have fully appreciated. The jury should have been told that it would be dangerous to convict on AM’s evidence alone, without giving that evidence the closest scrutiny, and without bearing in mind the warning and the difficulties faced by Mr B.
The Judge’s direction came close to what was required, but fell a little short. I have already said that his direction relating to the fact that only AM and Mr B could speak of the relevant circumstances, and to the fact that AM was a young child, was an adequate direction.
The Judge dealt with the delay. He made the point that AM’s delay in complaining about Mr B’s conduct did not necessarily mean that her allegation was false. In that respect he was discharging the obligation imposed on him by s 34I(6a) of the Evidence Act. It would have been preferable if he had also made the point that the delay might cast doubt upon the reliability of the evidence given by AM: See R v K (1997) 68 SASR 405 at 409 Doyle CJ; Crofts v The Queen (1996) 186 CLR 427 at 446-452 Toohey, Gaudron, Gummow and Kirby JJ. But that is a relatively minor matter, bearing in mind that this aspect of the matter received very little attention in the addresses and in the evidence. The Judge then referred to the impact of the passage of time on Mr B’s memory for details, and to the difficulty that Mr B might have faced in testing AM’s evidence about counts two, three and four. He then said:
“So, ladies and gentlemen, as I say, you should scrutinise the complainant’s evidence with great care, and unless you are completely satisfied of its truth and accuracy, there could be no question of the accused being convicted”.
This was preceded by earlier directions in which the Judge told the jury that they should scrutinise the evidence closely, and bear in mind AM’s age.
In my view this was a case that called for a warning of the dangers of convicting, backed by the authority of the Judge. No such warning was given. However, what the Judge said came close to what is required. The Judge canvassed the factual issues, and all that he omitted was the warning itself.

If that was the only cause for concern, it may be that the conviction could stand. That is not something that I need to decide. As it is, the combination of the evidence of the uncharged acts, the direction relating to that evidence, and the absence of a warning satisfied me that the appeal should be allowed, and the conviction should be set aside.
I mention that no complaint was made at trial about the terms of the summing up in relation to the uncharged acts or in relation to delay. That is a relevant matter, although not decisive. But in the present case there is no reason to think that there was any advantage to Mr B in allowing the summing up to remain as it was. Nor is this a case in which it can be said that, as a matter of judgement, the summing up was better left as it was. The risk of a miscarriage of justice was too great for that. Accordingly, though the failure to raise the matter at trial is regrettable, that should not influence the outcome of the appeal.
Conclusion
For those reasons I joined in the order that the appeal be allowed, that the convictions be set aside, and that a retrial be ordered.
PERRY J. I agree with the orders proposed by Doyle CJ and with his reasons.
MULLIGHAN J I agreed that the appeal should be allowed for the reasons which have now been expressed by the Chief Justice. I wish to make a few observations of my own.
When the evidence about the uncharged acts was given, which appears to have been unexpected, the learned Trial Judge should have ruled that it was inadmissible and directed the jury to ignore it. His direction to the effect that it could have some bearing on their not hearing of any complaint for a long time was a misdirection. Even if the learned Trial Judge thought that the evidence could have been admissible, he should have raised the question of admissibility with counsel and heard argument. If he concluded that the evidence was admissible, it was necessary that he determine its purpose so that the prosecution and the defence knew how to treat it. The issue of admissibility had to be resolved at the time the evidence was given so that the prosecution and the defence knew where they stood with regard to it.
In my view, a Longman direction should be given when, in the circumstances of the particular case, the delay is such that the accused is likely to suffer forensic disadvantage. In some cases there may be significant delay but no forensic disadvantage. An example is where an incident is linked to a particular event, the date and place of which is known and the accused has an alibi. In other cases the delay may be of shorter duration but the forensic disadvantage is obvious. There will be cases where the delay is so substantial that forensic disadvantage must be assumed.
In my view, a prompt complaint after the alleged incident at the beach, which is the subject of the first charge, could have afforded an opportunity to the appellant to test the girls’ evidence about that alleged incident. It was alleged to have occurred in the water at a public beach with her two sisters and others nearby. If a complaint had been made, the appellant may have been able to obtain evidence from others nearby which may have demonstrated that it was unlikely that such an incident occurred. Any significant period of delay would substantially reduce that opportunity.

[2003] SASC 411

18 December 2003