R v BWT - [2002] NSWCCA 60

No judgment structure available for this case.

Reported Decision:
(2002) 54 NSWLR 241
(2002) 129 A Crim R 153

New South Wales

Court of Criminal Appeal

CITATION: Regina v B.W.T [2002] NSWCCA 60

FILE NUMBER(S): CCA 60252/00

HEARING DATE(S): 30 January 2002

JUDGMENT DATE:
12 April 2002

PARTIES :

Regina
B.W.T

JUDGMENT OF: Wood CJ at CL at 1; Sully J at 42; Dowd J at 119

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/71/0141

LOWER COURT JUDICIAL
OFFICER : Howie DCJ

COUNSEL : L. Lamprati - Crown
P. Hamill - Appellant

SOLICITORS: S. E. O'Connor - Crown
D. J. Humphreys - Appellant

LEGISLATION CITED: Crimes Act 1900 (NSW)
Evidence Act 1906 (W.A.)
Crimes Act 1958 (Vict.)

CASES CITED:
The Queen v Maric (1978) 52 ALJR 631
The Queen v Glennon [1992] 173 CLR 592
R v George (1987) 29 A Crim R 380
Reg v Channell [2000] NSWCCA 289
Longman v The Queen (1989) 168 CLR 79
Crampton v The Queen (2000) 176 ALR 369
Doggett v The Queen (2001) 182 ALR 1
Reg v Johnston (1998) 45 NSWLR 362
The Queen v Dixon [2001] NSWCCA 39
Reg v Roddom [2001] NSWCCA 168
Reg. v G.J.H [2001] NSWCCA 128
Reg v Ball [2001] NSWCCA 352
Reg v Murre [2001] NSWCCA 286
Reg v Roberts [2001] NSWCCA 163
Reg v Folli [2001] NSWCCA 531
Reg v Spencer [1987] AC at p.141
Jago v District Court (NSW) 168 CLR 91
Crofts V The Queen (1996) 186 CLR 427
Reg v J.G.W [1999] NSWCCA 116
Veen v The Queen (No. 2) (1988) 164 CLR 465
Jones v The Queen (1997) 191 CLR 439
Wyong Shire Council v Shirt (1980) 146 CLR 40
M v The Queen (1994) 181 CLR 487
CSR Limited & anor v Bouwhuis - unreported - CA: 23 Augusut 1991
Reg v Zorad (1991) 19 NSWLR
Reg v Williams - unreported - CCA: 10 October 1990
Reg v Knight - unreported - CCA: 19 December 1990
Pemble v The Queen(1971) 124 CLR

DECISION: Appeal allowed; convictions recorded and sentences passed in Court below quashed; new trial ordered

-IN THE COURT OF

60252/00

WOOD CJ at CL
SULLY J
DOWD J
Friday 12 April 2002

REGINA v BWT

Judgment

1 WOOD CJ at CL: This is yet another appeal which turns upon the question of whether or not the jury was given an adequate instruction in relation to the so-called Longman warning. By reason of the lengthy delay, it clearly was a case calling for such a warning – the only point relevant for this ground of appeal is whether sufficient was said.

2 After giving some general directions to the jury to the effect that they were “required to scrutinise” the evidence of the complainant, and to do so “with some care before [they] rel[ied] upon it”, his Honour continued:

when assessing her evidence in relation to these matters of course you have to take into account that these incidents occurred many years ago and that in respect at least of the early allegations that they relate to a period when she was a very young child. You could also, when you are assessing the complainant’s evidence and determining whether you can convict the accused on that evidence, the fact that these matters have come to the surface for trial so long after they are said to have occurred and it

may

now have resulted in some difficulties for the accused in defending himself. By reason of that delay he

may have

been deprived of the opportunity of finding witnesses who might indicate that what the complainant or her sister says could not possibly have happened.

The delay has resulted in some vagueness as to when events occurred. It seems to have perhaps resulted in the conflict between the evidence of …[the complainant and DAW].. as about this incident when they were both in bed with the accused. The vagueness in the evidence, because of the delay, on matters of detail such as the dates really gives the accused little opportunity to rebut what she says except by way of general denial or calling evidence as to these other peripheral matters. And a general denial may sound less convincing than a defence, which can attack the substance of allegations made by a complainant shortly after it is alleged that those incidents occurred. Had there been no delay in these particular allegations coming to the trial the accused

may

have been able to bring other evidence which would indicate in some way that what the complainant is saying could not possibly be true either in one respect or more.

Because of these difficulties, and because it is the only evidence on which the Crown relies, you have to scrutinise the evidence of the complainant carefully before you can convict the accused upon it. However in giving you that direction be perfectly clear I am not indicating to you my personal view at all about the way you should assess the complainant’s evidence or how you should determine the particular allegations in this case.

I have told you that I do not intend to convey my personal opinions. I am merely doing what the law requires me to do, and that is to point out to you the importance of the complainant’s evidence in your deliberations and matters which

might

indicate or affect the weight of her evidence before you. Really I am only emphasising matters which are matters of common sense and which you would understand anyway. But I make it perfectly clear you are entitled to convict the accused on the evidence of the complainant alone but only once you have considered it carefully and only if you are satisfied beyond reasonable doubt that she is honest and accurate in relation to any or all of these allegations.

3 There was no application, either by the Crown Prosecutor or by counsel appearing for the appellant, for any re-direction. It is now submitted however, that the directions given were inadequate in that:

unsafe

dangerous”

may

did

4 I have read the judgment of Sully J in draft concerning this submission and agree, for the reasons outlined by his Honour, that it has been made good. In that regard, I respectfully agree with his Honour’s summary of the directions which now need to be given in cases involving allegations of sexual assault, where there is significant delay between the offence charged and trial, arising out of the several decisions of the High Court mentioned in those reasons. I also respectfully concur with the additional observations contained in the addendum to the judgment.

5 I do, however, wish to record my concern in relation to some aspects of relevance for this appeal, and for similar cases.

6 Of immediate importance for the present appeal was the need for a warning as to the impact of delay upon the accused, arising out of the observations of Brennan, Dawson and Toohey JJ in Longman v The Queen (1989) 168 CLR 79, at 91, that:

The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

7 The need for such a warning and not merely a comment, their Honours observed, arose because these was “one factor which may not have been apparent to the jury.” That factor, they went on to say:

..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 twenty 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 (NSW)) and it was imperative that a warning be given to the jury.

8 McHugh J (at 108-109) similarly noted the need for a particular warning in a case involving a substantial delay between the occurrence of the events alleged and the making of a complaint, so far as that raised a question as to whether the recollection could be acted upon safely, observing:

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.

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, and 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 the 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.”

9 In Crampton v The Queen (2000) 176 ALR 369, Gaudron, Gummow and Callinan JJ said, after noting this and other passages, in Longman, (at para 45):

The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused’s defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant’s evidence alone without the closest scrutiny of the complainant’s evidence), should have been put to the jury.”

10 Kirby J said (at paras 130 –132):

“[130]

The warning required by Longman must be, in the words of the joint reasons of this case, ‘unmistakable and firm’. It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after 20 years, the appellant’s defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, 20 years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant.

[131]

Twenty years after the alleged offence, the first complainant was an adult whose life experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant’s recollection or reliability. Repeated answers to questions, searching the detail of the first complainant’s testimony, such as ‘I can’t remember’ or ‘it’s too long ago’ made it extremely difficult to test that evidence in an effective way.

[132]

The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. The idea is contrary to the repeated authority of the court in and since Longman. The jury need the assistance of the trial judge to warn, from the law’s long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time – especially great time –

may

make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms.”

11 Hayne J, in confirming the need for a Longman warning, noted at 140:

The critical feature of the circumstances I have described is that many years had elapsed between the time of the alleged conduct and the accused being put on notice of the allegations. That lapse of time inevitably meant that the accused was put at a significant disadvantage, of a kind and to an extent which a jury might not appreciate without proper directions.

12 Next, in Doggett v The Queen (2001) 182 ALR 1, a case which had been fought at trial without the defence seeking to make capital of the delay, or of the resulting forensic disadvantage, Gaudron and Callinan JJ, in the course of identifying the reasons why the existence of corroborative evidence, in that case, had not relieved the trial judge of the need to give a Longman direction, said (at para 51):

Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time

might

cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint

might

allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witness were doing when the offences were alleged to have occurred.”

13 These passages have been taken up, so it seems to me, as requiring that an instruction in equally positive terms, be given in every case involving a substantial delay, irrespective of whether or not there is any evidence, or basis beyond suspicion, that the absence of contemporaneity between the alleged offence and complaint, or trial has in fact (not ‘might have’) denied to the accused a proper opportunity to meet the charge or charges brought: see for example R v Roddom (2001) NSWCCA 168, R v GJH (2001) NSWCCA 128 and R v Roberts (2001) NSWCCA 163.

14 Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant’s evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way.

15 The difficulty which I have with this proposition is that it elevates the presumption of innocence, which must be preserved at all costs, to an assumption that the accused was in fact innocent, and that he or she might have called relevant evidence, or cross examined the complainant in a way that would have rebutted the prosecution case, had there been a contemporaneity between the alleged offence and the complaint or charge. That consideration loses all of its force if, in fact, the accused did commit the offence. In that event there would have been no evidence available of a positive kind, relating for example to the existence or ownership of the premises, or of a motor vehicle or other item, associated with the offence charged, or going to establish an alibi for the relevant occasion, no matter how contemporaneous the complaint or charge was with the offence.

16 I do not seek by these observations to question the common sense considerations that delay can, and in many cases will, occasion difficulty to an accused who may have lost an opportunity to investigate whether a complaint of sexual misconduct could, or could not, have occurred at those places, or within the time frames alleged and, even more importantly, to gather physical evidence in the form of records, or evidence from other witnesses that would support such a proposition. The simple fact is that records can be lost or mislaid, and the memory of potential witnesses may dim, or they may not be capable of being found.

17 For these reasons, as Spigelman CJ noted in R v Johnston (1998) 45 NSWLR 362, in sexual assault cases which commonly turn upon a direct conflict or word against word, between a complainant and an accused, and where there is no independent verification of whether the event occurred, or of whether it was consensual, the contextual details of the alleged conduct will often prove to be ”of definitive significance” (at p 370).

18 These are matters which can and should properly be placed before a jury, as relevant to its assessment of the prosecution case. My concern lies more with the unequivocal nature of a warning, which must be given by a trial judge who does not himself or herself know where the truth lies, that the accused was unable to adequately test and meet the prosecution case.

19 If in fact the accused did commit the offence charged, any such warning or direction would be misleading if not positively untrue. A similar consideration would apply if, in fact, the accused was not prejudiced, being able, in the particular circumstances of the case, for example to call positive and objective evidence in rebuttal, or where the absence of contemporaneity did not in any way deprive him or her of such an opportunity.

20 The latter circumstance might arise, for example, where the complaint related to a time and place where the accused was in fact living alone with the complainant, and in circumstances where, no matter what inquiries were made, the case became one of word against word, such that rebuttal evidence could never have been obtained.

21 I have no difficulty with the decision in Longman, or with the subsequent decisions, if understood as decisions on their own facts, that is, as cases where the delay was of such an inordinate degree that it was impossible for an accused even to begin to investigate the circumstances alleged. Nor do I have any problems with the warning now required, where there is evidence, or good reason to suppose positively, that the accused has been prejudiced.

22 Otherwise, I would respectfully raise for consideration, whether some modification should be made to the warning which, it seems to me, must now be given, in invariable and emphatic terms, of the fact of prejudice. In that regard I do not consider it unimportant that, in the various passages cited, the reasons given for the warning have at times spoken in terms of the possibility, rather than the fact, of prejudice, as underpinning it (see also in this regard the observations of Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439 at 454 to 455.

23 Nor do I consider it irrelevant that the impact of delay is double edged, since it is just as likely to occasion practical difficulty for the prosecution in pinning down times and places, and in gathering relevant witnesses.

24 The concern which I have identified in this respect has not gone unobserved in other decisions of this Court. For example in R v Collins (2001) NSWCCA 386, no submission was pressed at the trial for a warning that delay had made it difficult for the accused to defend himself. In arguing this point on appeal, counsel for the appellant accepted that no particular loss of evidence or specific prejudice, stemming from the delay could be identified, but submitted that the “the judge should have warned the jury that in the ordinary nature of things the frailty of human memory was such that the lapse of time must have placed the accused at a disadvantage.” (At para 71).

25 Mason P, with whom Sully J and Newman AJ agreed, held that there was no substance to this objection to the summing up, particularly because the appellant could not point to any specific loss of evidence or prejudice.

26 Mason P held that although it is well established that there is an obligation to give a warning about the difficulties inherent in a delayed complaint, whenever it is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case, the “need for, and content of, any comment or warning will depend on the circumstances of the case” (At para 77).

27 To similar effect was the decision in Regina v JGW (1999) NSWCCA 116. In Regina v GPP (2001) NSWCCA 493, complaint was made of the absence of any warning about the forensic difficulties which delay might have created for the appellant, the caution given having been confined to its possible impact on recollection. This was held to have been insufficient, and the appeal was allowed, applying the majority decision in Doggett.

28 In R v Johnston (1998) 45 NSWLR 312 Spigelman CJ, after reviewing the authorities touching upon delay, identified a number of proposition of relevance for the determination of the appeal, including the following:

“ (v) Whenever it appears to a trial judge that delay…may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair.
…
(ii) Where it appears…that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that the delay, for which the accused had not been responsible, had created those difficulties.
…
(iii) …The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v).”

29 In that case it was held that a delay of five and a half years, compounded by the fact that the Crown used the delay as an explanation for inconsistencies in the complainant’s evidence, and unfavorably contrasted this with the “amazing recollection” of the appellant on matters of detail, meant that a warning should have been given which identified the specific difficulties that the appellant faced because of the delay.

30 The need for directions of this kind, his Honour had earlier noted, arose from the following considerations (at 369):

“ It is important to emphasize that what is required by way of comment or direction must depend on the whole of the circumstances. These circumstances extend to encompass any aspect of the conduct of the trial including the scope of factual disputation, whether by express contradiction or cross-examination; and the salience given to particular matters of factual disputation, including by way of emphasis in addresses.

The guiding principle on such matters is as stated by the High Court in Longman v The Queen (at 86):

‘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.’

That is a specific manifestation of the proposition in Crofts (at 451) that:

‘The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. ’”

31 For the reasons identified in Regina v GPP ([2001] NSWCCA 493), and by Sully J in this appeal, notwithstanding the number of times that the Longman direction has been considered, there still is a sharp division in the High Court (following Doggett v The Queen) as to the circumstances when, and the terms in which, the necessary warning should be given. Additionally, there is the concern upon which I have focused concerning whether or not the warning should be given in terms that the appellant has been forensically disadvantaged on the one hand, or might have been so disadvantaged, on the other hand.

32 It needs to be borne in mind that the direction presently under consideration is but one of a multitude of directions which now fall to be considered by a trial judge faced with the task of summing up to a jury in a sexual assault case. They include:

(a) the Murray direction ( R v Murray (1987) 11 NSWLR 12) to the effect that where there is only one witness asserting the commission of a crime, the evidence of that witness “ must be scrutinized with great care ” before a conclusion is arrived at that a verdict of guilty should be brought in;

(b) The Longman direction (as reinforced in Crampton and Doggett ), that by reason of delay, it would be “ unsafe or dangerous ” to convict on the uncorroborated evidence of the complainant 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.
(c) The Crofts direction ( Crofts v The Queen (1996) 186 CLR 427), if a jury is to be informed, in accordance with s 107 of the Criminal Procedure Act , that a delay in complaint does not necessarily indicate that the allegation is false, and that there may be good reasons why a victim of sexual assault may hesitate in complaining about it, then it should also be informed that the absence of a complaint or a delay in the making of it may be taken into account in evaluating the evidence of the complainant, and in determining whether to believe him or her (but not in terms reviving the stereotyped view that complainants in sexual assault cases are unreliable or that delay is invariably a sign of the falsity of the complaint: Crofts at 451).

(d) The KRM direction ( KRM v The Queen (2001) 75 ALJR 550) to the effect that, except where the evidence relating to one count charging sexual assault is admissible, in relation to another count or counts alleging a separate occasion of such an assault, the jury must consider each count separately, and only by reference to the evidence which applies to it; balancing that direction, where appropriate, by a reminder that if the jury has a reasonable doubt concerning the credibility of the complainant’s evidence on one or more counts, they can take that into account when assessing his or her reliability on the other counts (see Regina v Markuleski [2001] NSWCCA 290 at paras 259-263).
(e) Any warning which may be required by reason of a ruling that limits the use of evidence concerning a complaint, or delay in complaint, to the question of credibility (eg under s 108(3) of the Evidence Act as an exception to the credibility rule), or alternatively that allows it to be taken into account (under s 66 of the Evidence Act as an exception to the hearsay rule) as evidence of the facts asserted.

(f) The Gipp warning (conveniently so called, although there was divided reasoning in Gipp v the Queen (1998) 194 CLR 106) concerning the way in which evidence of uncharged sexual conduct between an accused and a complainant can be taken into account as showing the nature of the relationship between them, but not so as to substitute satisfaction of the occurrence of such conduct for proof of the act charged;

(g) Any warning that may be necessary in relation to the use of coincidence evidence (under s 98 Evidence Act ) where the accused is charged in the one indictment with sexual assault against two or more complainants, requiring the jury to be satisfied beyond reasonable doubt first of the offences alleged in respect of one complainant, and then of the existence of such a substantial and relevant similarity between the two sets of acts as to exclude any acceptable explanation other than that the accused committed the offences against both complainants;
(h) A BRS direction ( BRS v The Queen (1997) 191 CLR 275) that where evidence revealing criminal or reprehensible propensity is admitted, but its use is limited to non propensity or tendency purposes, for example those considered proper in that case, then it is to be used only for those purposes and not as proof of the accused’s guilt.

33 In combination with the other standard directions customarily given in a criminal trial, and in particular any further warnings which may be required under s 165 of the Evidence Act, a trial judge is faced with a somewhat formidable task in sufficiently directing a jury in this category of case.

34 The jury is similarly faced with a potentially bewildering array of considerations, some of which may appear highly technical, if not inconsistent, to the lay mind and which, in any event, are likely to vex an experienced trial lawyer, even though they related to a simple factual dispute arising very often within a domestic setting. Added to that is the circumstance that any direction, framed in terms of it being “dangerous or unsafe” to convict, risks being perceived as a not too subtle encouragement by the trial judge to acquit, whereas what in truth the jury is being asked to do is to scrutinize the evidence with great care.

35 In all of these circumstances, bearing in mind also the desirability of containing a summing up to an acceptable length; of ensuring its immediate relevance to the actual trial (Regina v Zorad (1991) 19 NSWLR at 91, Regina v Williams NSWCCA 10 October 1990, KRM v The Queen, and R v Chai [2002] HCA 12 at 18); of avoiding unnecessary judicial input into the fact finding process (Azzopardi v The Queen [2001] HCA 24 ); and of paying due respect to the tactical considerations which are best judged by trial counsel in the actual atmosphere of the trial, I consider it timely for there to be a further review of the evidentiary, and other requirements of procedural law that apply to cases of sexual assault, particularly those involving children.

36 As I have observed elsewhere (Regina v Markuleski (2001) NSWCCA 290 at para 244) special considerations do apply in relation to the sexual assault of children and particularly in relation to delay in the emergence of any complaint, and it is not at all clear to me that judges, even experienced trial judges, have any greater insight into this aspect of human behavior than lay citizens.

37 Moreover, it remains the case that, despite procedures involving the use, for example, of closed circuit television to shield vulnerable witnesses from an accused who has assaulted them, it does remain particularly burdensome for any such person to be called on to give evidence for a second time when a new trial becomes necessary for reasons which may have involved little more than a technical failure to deliver, in precise terms one or more of the directions earlier identified, or even a deliberate decision not to do so following a request by trial counsel. The risk of harm to a true victim is only multiplied in such a case. Particularly is that so if, by reason of the trauma potentially involved to the victim in having to go through a second trial, a decision is made to no bill the proceedings.

38 I emphasized that I do not, by these remarks, intend in any way to water down the presumption of innocence, or to make it any more difficult for an accused to have a fair trial. My purpose, while agreeing that the present appeal should be allowed, is to invite consideration of whether or not the number of directions required in this type of case could be reduced, and in particular whether a somewhat less emphatic and invariable direction should be given in relation to the effects of delay, where the aspect of prejudice remains a possibility, rather an actuality, demonstrated either upon the evidence, or because the delay involved could be fairly regarded as inordinate.

39 In summary, in relation to this specific aspect of this appeal, I repeat my concern that the direction currently required amounts to a warning that, in fact, the accused was unable by reason of the delay to test or to meet the prosecution case. Two problems emerge:

was

40 Were it not for the binding authority of the decisions of the High Court previously mentioned, I would not have found fault with the directions given in the present case concerning either the need for care in scrutinizing the evidence, or the possible forensic effect of the delay upon the defence. In my view the directions given were clear and meaningful, and such that a jury using its common sense would have understood and applied them to its assessment of the evidence.

41 However, for the reasons identified by Sully J, I agree with the orders proposed by him.

42 SULLY J: The appellant, B.W.T, stood trial in the District Court at Wagga Wagga, and in three separate trials. Each trial was a jury trial; and the presiding Judge in each trial was his Honour Judge Howie QC, as Howie J of this Court then was. In each trial the appellant was charged upon indictment with a variety of offences of sexual misconduct against a named complainant. In two of the three trials, the complainants were daughters of a de facto relationship between the appellant and one, J.M. In the third trial the complainant was a daughter of J.M by a relationship other than her relationship with the appellant.

43 The three trials were heard back to back. The appellant was acquitted by the jury of all the charges preferred against him in the first trial. The appellant was convicted by the jury of all the charges preferred against him in the second trial. The appellant was acquitted by the jury of all the charges preferred against him in the third trial.

44 The complainant in the first trial has the identifying initials D.A.W. In what follows I shall refer to her by those initials. The complainant in the second trial has, also and coincidentally, the same identifying initials. In what follows I shall refer to her simply as “the complainant”. The complainant in the third trial has the identifying initials G.H. In what follows I shall refer to her by those initials. The complainants D.A.W and G.H were Crown witnesses in the second trial.

45 In the second trial the appellant was presented upon an indictment containing ten counts. Four of the counts, counts 3, 5, 7 and 9, charged the appellant with the offence of carnal knowledge of a girl of the age of 10 years and under the age of 16 years. As the law then stood, any such offence contravened section 71 of the Crimes Act 1900 (NSW) and attracted upon conviction a statutory maximum penalty of penal servitude for 10 years. A further four counts, counts 1, 2, 4 and 8, charged the appellant with the indecent assault of a female. As the law then stood, such an offence contravened section 76 of the Crimes Act and attracted upon conviction a statutory maximum penalty of penal servitude for 6 years. Count 6 charged an act of incitement to commit an act of indecency. As the law then stood, such an offence contravened section 76A of the Crimes Act 1900 and attracted upon conviction a statutory maximum penalty of imprisonment for 2 years. Count 10 charged an offence of sexual intercourse without consent. As the law then stood, such an offence contravened section 61D of the Crimes Act and attracted upon conviction a statutory maximum penalty of penal servitude for 7 years.

46 When Howie DCJ came in due course to sentence the appellant, his Honour included in his remarks on sentence the following succinct and helpful summary of the essential allegations that had been made at trial against the appellant:

“The facts for the purpose of sentence to be found in the evidence of the complainant are that she alleged that between 1976 and 1982 the prisoner indulged himself in a continual course of sexual assaults upon her. Her evidence was that the counts in the indictment did not represent the totality of the prisoner’s indecent conduct towards her, but were merely incidents which she could specifically recall in detail.

The first count referred to the first time that the complainant was indecently assaulted by the prisoner, and the tenth count arose from the last time that the prisoner sexually abused her. The other eight counts represented four other occasions when she said that the prisoner had, on each of those occasions, acted indecently towards her and then had intercourse with her.

The complainant was born in May 1965, and until about 1977 the complainant lived with the prisoner, her mother and her siblings. Around about that time her mother separated from the prisoner, and thereafter the prisoner was the prime carer of the children in the household, being his step children, including the complainant and those children born of the marriage between the prisoner and the complainant’s mother.

In 1976, when the complainant was aged 10 years, and before her mother left the family, the complainant, the prisoner and the rest of the family were staying at the complainant’s grandmother’s home over the Christmas holidays. The complainant gave evidence that she shared a bed with the prisoner during that time, and on one occasion she woke in the early morning to find the prisoner touching her on the outside of her vagina. She told the jury she tried to pull away, but he held her tightly and continued this conduct until she started to cry. This incident gave rise to the first count on the indictment. The offence was an indecent assault of a child under the age of 16 years, contrary to the now-repealed s 76 of the Crimes Act , and carried a maximum penalty of 6 years’ imprisonment.

The second and third counts on the indictment related to an incident which occurred on the complainant’s twelfth birthday, which occurred after her mother had left the family. The complainant gave evidence that, during the day’s activities, she became saturated with water when she was sprayed by one of her sisters. She went inside and was told by the prisoner to take off her wet clothing and get into bed. She said the prisoner got into bed with her and touched her on the vagina and inserted his finger into her. This conduct gave rise to the second count on the indictment of indecent assault.

The complainant said that the prisoner then had sexual intercourse with her by inserting his penis into her vagina. This was the third count on the indictment, being an offence of carnal knowledge under now-repealed s 71 of the Crimes Act , which carried a maximum penalty of ten years’ penal servitude. The complainant said that this was not the first occasion when the prisoner had sexually penetrated her.

The third incident, which gave rise to the fourth and fifth counts on the indictment, occurred in 1978. The complainant ran away from home and went to stay at a hut near Tumut. She was found by a friend of the prisoner and taken back home. The complainant gave evidence before the jury that the prisoner entered her bedroom that evening and indecently assaulted her, by touching her on the vagina, and then had sexual intercourse with her. This incident gave rise to the counts of indecent assault and carnal knowledge.

(DAW)

A fifth incident gave rise to the eight and ninth counts in the indictment, and is alleged to have occurred in either 1978 or 1979 after the prisoner had returned from a holiday in New Zealand. The prisoner picked up the children from an aunt’s place where they had been staying and, according to the complainant, that night again indecently assaulted her and then had carnal knowledge of her.

The tenth count on the indictment was the last occasion that the complainant said she was sexually assaulted by the prisoner. She alleged it occurred in 1982, a couple of days before she finally left the home permanently. The complainant was told by the prisoner on this occasion that it was her turn that night. He went to bed with her and, notwithstanding that she was crying, had sexual intercourse with her. This incident gave rise to a charge of sexual intercourse without consent, contrary to s 61D of the Crimes Act , and carries a maximum penalty of seven years’ penal servitude.

In effect, the complainant’s evidence was that sexual activity occurred between the prisoner and her at least twice a week over the period of seven years to 1982 when she finally left home.”

47 The appellant gave evidence at his trial and called witnesses in his case.

48 The appellant’s own evidence denied outright all of the allegations of sexual misconduct that were alleged against him. He denied that there had been any occasion when the children had been given alcohol to drink, an allegation that had been made by D.A.W during the course of her evidence in the Crown case. The appellant denied that he had been violent or aggressive with the children; or that he had ever disciplined them by beating them with a belt; or that he had ever taken them in a car to a particular hotel and left them unattended in the car while he drank inside the hotel; all of which allegations had been raised, variously, in the evidence of D.A.W and of G.H, as witnesses in the Crown case.

49 The son of the appellant was called to give evidence that the appellant had never given him alcohol to drink when he was a child, and had never disciplined him with a belt. The son gave evidence that the appellant had previously taken his children to the particular hotel for Christmas parties.

50 A step-daughter of the appellant was called to describe the sleeping arrangements in the complainant’s grandmother’s home. This witness said that the girls would share a bed, and that her mother and the appellant would share a separate bed. She could not recall where the son slept. She, too, said that the appellant had never given her any alcohol to drink when she was a child; and that he had not ever used a belt to discipline her. She could recall having gone to the particular hotel on one occasion for a Christmas party. She said that the children had never been left unattended in a car outside that hotel.

51 The final witness in the appellant’s case at trial was one, Caroline Celles Driscoll, who had been sharing accommodation with the appellant for some 20 years. She said that she had first met the appellant in 1979 when she used to visit him and mind the children for him. She said that she had not noticed on the occasion of any of those visits any alcohol in the appellant’s house. She said that she had never seen him discipline his children with a belt; and that she had never seen marks on the children suggestive of their having been beaten with a belt.

52 The following grounds of appeal were notified:

“1. There was a miscarriage of justice, in that

(a) The learned trial judge erred in refusing the adjournment application made by counsel then appearing for the appellant prior to the trial commencing on 8 December 1999 and the trial miscarried as a result; and/or

(b) There is a serious risk that the trial miscarried as a result of pre-trial publicity which deprived the appellant of a fair trial.

2. The trial miscarried as a result of the failure of the trial Judge properly to direct the jury in relation to the extensive delay in complaint.

3. There was evidence not led or not cross-examined upon at the trial which has led to a miscarriage of justice, specifically,

(a) There is evidence, not led at trial, of the good character and reputation of the accused;

(b) There is evidence, not led at trial, that the appellant had an alibi in relation to the first count;

(c) There is evidence, not led at trial, that the appellant had an alibi in relation to the eighth and ninth counts;

(d) There is evidence, not led at trial,

(i) confirming the appellant’s evidence that the witness DAW provided him with a character reference, and

(ii) of photographs showing DAW, the appellant and their families, after the alleged events giving rise to counts 6 and 7;

(e) There is evidence, not led at trial, refuting a specific allegation made by the complainant, namely that she was struck with a fishing rod by the appellant.

4. The verdict is unreasonable, cannot be supported having regard to the evidence or otherwise represents a miscarriage of justice.

5. The sentence imposed is excessive.”

53 The fifth ground thus notified was not pressed at the hearing of the appeal.

54 It is convenient to deal together with both limbs of this ground. The relevant facts are as follows:

[1] On 6 December 1999 the first trial of the appellant, that is the trial in which the complainant was D.A.W, commenced.

Daily Advertiser

“ALLEGED RAPIST TOLD GIRL HE MISTOOK HER FOR HER MOTHER COURT HEARS”

“A 51-year-old Riverina man appeared in Wagga District Court yesterday on charges of sexually assaulting a 10-year-old girl – 24 years after the events are alleged to have occurred. The defendant has been charged with three counts of carnal knowledge of a girl aged between 10 and 16 in relation to incidents alleged to have taken place in the mid-1970s.

After Judge R. N. Howie read out the charges, the accused man pleaded not guilty to all three.

(The Crown Prosecutor)

The first incident is alleged to have occurred when the girl, who cannot be named, was about 10 or 11 and was in Year 5 at school.

(The Crown Prosecutor)

The court heard that after the alleged incident, the man apologised to the girl, saying he had mistaken her for her mother.

The only person to give evidence yesterday was the alleged victim, who is now 35.

The second charge relates to an incident alleged to have occurred when the girl was in the double bed she shared with her sisters.

The complainant said she was about 10 or 11 at the time of the incident, but could not recall the time of year.

The final charge related to an incident alleged to have occurred in 1976 when the girl was in bed watching television.

When questioned by the Crown prosecutor the woman listed a number of other occasions when she was allegedly sexually assaulted by the same man.

She said these assaults began when she was about 10 years old and continued two or three times a week until she was 18.

However, the defence barrister questioned the accuracy of the woman’s memory, stating the details recounted in court were sketchier than those included in statements she had written in May 1992 and April 1997.

The victim denied the defence barrister’s claims she was lying. The trial continues today.”

[3] Later on that same day, 7 December 1999, the appellant’s first trial concluded when the jury returned with verdicts of acquittal on all counts in the indictment. It would seem that the verdicts were returned at or about 4.30 p.m.

Daily Advertiser

“COURT”

NOT GUILTY’

“A 51-year-old Riverina man was found not guilty of three charges of carnal knowledge of a girl aged between 10 and 16 when he appeared in Wagga District Court yesterday. On the second day of the trial the jury of five women and seven men retired to consider their verdict at 1 pm and took three-and-a-half hours to find the accused man not guilty of all charges.”

[5] On that same morning, 8 December 1999, the second, and consecutive trial of the appellant was due to commence.

“following a press report and the evidence of the first count in the trial which concluded yesterday”

“That’s one of the matters I went through with you yesterday as to how similar the charges were in relation to this child as were the other child. And I suppose there is two things about it, even if the jury did conclude that the same accused involved in similar conduct, of course there was an acquittal in respect of the other matters and that acquittal, as I understand it, was reported this morning. ………………………………… So one doesn’t quite know what prejudice might flow or not flow in relation to that. But look, I’ll leave it to the parties to think about what might be done. I haven’t formed any view as to whether or not I would grant an adjournment if one was sought and, as I understand it, one might be sought in relation to the trial by reason of the press publicity. But it seems to me that the appropriate thing to do at this stage is to give you the time to see if there is some solution which might meet the exigencies of the situation and you might be happy on both sides to proceed. If not, then I will decide whether or not I’ll grant the adjournment if an application is made.”

“(Application by accused for adjournment on basis of newspaper articles regarding previous trial, too many coincidences. Crown opposed.)”

ex tempore

“Certainly there are some similarities in that the offences are of a sexual nature, that the offences in each trial involved the daughter of the accused, and in each trial the offences or some of them relate to a period in 1976. Other than that, as I understand it, the evidence which is going to be presented to this jury is not of a similar nature to the evidence which was presented to the jury in the earlier trial and which was to some extent detailed in the article.

I do not believe there is a real risk of a jury in this second trial being unfairly prejudiced against the accused. Firstly, it has to be assumed that a juror has read the article in the paper on Monday afternoon with such an eye for detail that the juror would remember the facts and circumstances set out in that article. With great respect to the newspaper, I very much doubt that a juror would read and retain such detail. Secondly, I think it would be very unlikely that any juror would assume that a person who was on trial on a Monday would also be on trial again on a Wednesday in the same court. Thirdly, the accused was acquitted of the charges yesterday and one assumes that a person who read the article on Monday with such detail as to remember the facts of that particular trial as contained in that article would follow the matter up yesterday and would see that there was an acquittal in the trial.

The jury will be directed by me, as I did in the first trial, to determine this matter on the evidence and only the evidence before them, and I am confident that the jury will do so. It has been indicated on many occasions that this Court should accept that jurors will act in accordance with the directions given to them and will not be influenced unduly by material outside the Court. I have no doubt in my mind that the trial should proceed.”

55 The following propositions of law are relevant:

[1] The nature of the present appeal, correctly understood, is that it is not an appeal against the refusal of the trial Judge to adjourn the trial. The appeal is, rather, an appeal against the convictions which were the ultimate results of the trial. If those convictions are to be challenged successfully, then the appellant must establish, relevantly to Ground 1, that the refusal of the adjournment so clearly entailed an unfair supervening trial, that the ultimate convictions are founded upon a fundamental miscarriage of justice, and should therefore be set aside: The Queen v Maric (1978) 52 ALJR 631.

[2] “The central prescript of our criminal law that no person shall be convicted of a crime otherwise than after a fair trial according to law dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial. Ordinarily, that risk will be obviated by appropriate and thorough directions and, if the circumstances also require it, a temporary stay for the minimum period adjudged necessary for the pre-trial publicity to abate. The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary. Nonetheless, one cannot exclude, as a matter of law, the possibility that an ‘extreme’ or ‘singular’ case might arise in which the effect of a sustained media campaign of vilification and pre-judgment is such that, notwithstanding lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and pre-judgment. In such a case, a permanent stay may be granted. If it is not, a subsequent conviction will necessarily constitute a miscarriage of justice.” The Queen v Glennon [1992] 173 CLR 592 per Deane, Gaudron and McHugh JJ at 623 – 624.

……………(the trial Judge) …………

‘The principle is essentially one that places responsibility upon the trial judge to determine, in the light of the atmosphere of the trial and the nature and extent of the publicity, whether it is necessary to discharge the jury in the interests of ensuring a fair trial.’ “

Reg v Channell [2000] NSW CCA 289 per Grove J, (Beazley JA and Kirby J concurring), at paragraph 13.

56 Detailed, thorough and helpful written submissions were put in by learned counsel for the appellant. They propound as follows the essence of the case made for the appellant in connection with Ground 1:

“The trials relating to the allegations of D.A.W and G.H were separated from the present trial in order that the jury not be aware that others had made allegations against the appellant and to avoid the unfair prejudice that such knowledge would create. The newspaper article was such that the very prejudice sought to be avoided may have arisen.”

57 This written submission was amplified in the oral submissions put by learned counsel for the appellant at the hearing of the appeal. It was contended that the refusal of the adjournment had put the appellant, on the given facts of the particular case, into a position where he was faced in reality with a choice of evils: either he asked for directions, or otherwise raised the question of potential prejudice, in front of the jury, in which case there was a risk that a bad situation would be made worse; or he said nothing, in which case there remained at large the possibility that one or more of the jurors, understandably but improperly had been tainted by the pre-trial newspaper publicity.

58 The appellant did not contend that his case was of the extreme and unusual kind calling for a permanent stay of the proceedings against him in accordance with the principles extracted above from the joint judgment in Glennon. The submission was, rather, that the nature and extent of the pre-trial newspaper publicity were such that there was a risk, so clear and so significant, of unfair prejudice that nothing short of an appropriate temporary adjournment could suffice to neutralise that risk.

59 In my opinion, much depends for present purposes upon the results of a careful consideration of the way in which the learned trial Judge dealt with the problem “in the light of the atmosphere of the trial and the nature and extent of the publicity”.

60 In that connection:

“What we require of people who are going to be jurors is for those people to be able to take an objective, dispassionate, perhaps cold view of the facts, or a cold view of the evidence, in order to be able to act as jurors in the matter. And if for some reason there is a difficulty for one or more of you in bringing a dispassionate, or a cold, or a calculating, or an objective view to a determination of evidence in respect of such matters I would ask you to bring that to my attention. ……………………………. (W)hat I do want to know is if searching your conscience and being aware of your public duty to act as a juror in this matter, if there is for some reason you believe that you could not bring a dispassionate, objective state of mind to the determination of this evidence then you should bring that to my attention before we empanel the jury.”

His Honour then immediately invited the jurors-in-waiting to let him know should it be the case that any one of the jurors-in-waiting recognised, inter alia, the appellant. There does not appear to have been any positive response from any juror-in-waiting.

(After various further observations in the same vein, his Honour continued as follows.)

(His Honour then explained to the jury the policy reasons underlying the practice of random selection by ballot of the members of a jury in a criminal trial; and his Honour then continued as follows)

The other reason why we do it in this way, and why we have gone through the procedure of empanelling, is so that we can hope to have members of the public who are not biased, who are not prejudiced, who have no preconceptions, who don’t know any of the parties, who have no views about the matter other than the views that they find and form from hearing the evidence in this particular trial. So what you have got to do right at the outset is adopt a mind-set if you like, of cleaning the slate of all of the matters, the baggage if you like, that you might bring with you into this court room based upon media reports you have read or things you have heard about these sorts of matters. Leave only your common sense, your experience of life, your knowledge of people and how they perform, what they do, how they react, and listen to the evidence in this trial as the evidence is given before you and then make your determinations of fact based only upon that evidence. That is in fact what you have sworn to do in your oaths.”

“Although I have told you that you are the sole judges of the facts, and that you have an almost limitless power when it comes to fact finding, you must not exercise that function capriciously or irrationally. Again the oaths that you took at the outset of the proceedings mean that you must determine all the relevant facts and the verdicts in this matter according to the evidence and only the evidence. It is clear of course in this case the evidence is what the witnesses have said to you in the witness box. As I told you at the outset of the trial, and it is important to remember it now after the evidence has been given, matters of emotion, or bias, or prejudice might have arisen during the course of the evidence, that bias, prejudice or sympathy can have no part at all in your determination of the verdicts in this particular case. You are judges, and acting judicially requires you to act only on the evidence which you should consider from an objective and totally dispassionate point of view.”

61 Applying to the facts as thus summarised, the principles of law to which I have earlier referred, I have come to the following conclusions:

“Looking with hindsight there was a solution which ought to have been adopted: namely, before the first trial the local media should have been informed that there were back-to-back trials and there should be no publicity until the trials were over. That is the proper approach where there are back-to-back trials, if I may say so.

It seems to me the D.P.P should, as a matter of course, suggest to trial judges there be such a request. Otherwise, you always run the risk of something emerging which is going to disrupt the list and delay trials, ……………. .”

I am in complete and respectful agreement with his Honour.

[2] That simple expedient not having been adopted in the present particular case, this Court must now do the best it can to balance fairly the various competing considerations to which reference is made in the statements of principle earlier herein quoted from the decisions in Glennon and in Channell . The Court is reasonably placed to make an assessment of “the nature and extent of the publicity” ; but it is in no position to make an assessment at all, as the evidence in hand stands, of “the atmosphere of the trial”.

[3] As to the nature and extent of the pre-trial publicity, it seems to me that, as these things go, the published material was not such as to give rise, on a reasonable view of it, to an apprehension that, in a real and significant sense, the publicity was likely to have prejudiced unfairly the second of the appellant’s three consecutive trials. The headline which I have earlier herein quoted from the first of the two newspaper reports was, in my opinion, unfortunate; but, on my reading of the balance of the published material, that material really did no more than report, fairly briefly, and accurately, matters which had occurred in Court; and did so in a way which does not seem to me to have, in any real and significant way, identified, or otherwise unfairly prejudiced, the appellant in connection with his second trial.

“The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. ………………………………………. . To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.” (173 CLR 603)

62 For the whole of the foregoing reasons, I am of the opinion that Ground 1 has not been sustained.

63 The relevant facts are as follows:

[1] All ten of the counts in the indictment upon which the appellant was tried alleged a very old offence. The earliest offence charged was dated between 1 January 1976 and 28 February 1976; and the latest offence charged was dated between 1 and 31 August 1982.

The appellant was arrested on 19 May 1997. His trial commenced on 8 December 1999.

The earliest in time of the offences charged against the appellant was alleged, therefore, to have occurred some 21 years prior to his arrest; and 23 years, almost 24 years, prior to the commencement of his trial. The latest in time of the offences charged was alleged to have occurred 14, almost 15, years prior to arrest; and almost 17-1/2 years prior to trial.

“Q. Now ma’am, let’s get this clear from the start, these allegations you are bringing today are simply fabrications, aren’t they?

A. No, they’re not.

Q. They’re simply made up by yourself?

A. They are not.

Q. There is no substance or truth in them whatsoever, is there?

A. There is – it is the truth.

Q. Ma’am, isn’t it the case that you’ve brought these allegations for the purpose of getting victim’s compensation, that’s your reason, isn’t it?

A. No.

Q. You have made a claim for victim’s compensation, haven’t you?

A. Yes.

Q. And that’s your reason, isn’t it, Ma’am?

A. No.”

[3] The appellant’s own evidence at trial was, in chief, very brief, being recorded in not quite five transcript pages. The appellant’s evidence consisted, essentially, of clear, simple and unconditioned denials of each and every one of the allegations made against him by the complainant. It is the case that at two or three points during his evidence the accused gave answers to the effect that he could not recall some precise particular as to which he was being questioned. His evidence does not read, however, as though he perceived himself to be at any disadvantage, by reason of the passage of time, in answering the questions put to him both by his own counsel and by the Crown Prosecutor.

[4] At the end of the first sitting day of the trial, the learned trial Judge had a brief discussion with counsel concerning proposed directions. His Honour asked in particular whether it was desired that there should be a particular direction concerning the absence of complaint. Both counsel indicated that such a direction was desired.

“Where on the trial of a person for a prescribed sexual offence evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the person upon whom the offence is alleged to have been committed or to suggest delay by that person in making any such complaint, the Judge shall -

(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and

(b) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault.”

[6] His Honour drew attention to the fact that the complainant had not been either examined or cross-examined about the absence of complaint or about delay in complaining. His Honour indicated, as best I can understand the exchanges recorded at T 58 for 8 December 1999, that he was not disposed to give a direction about the absence of complaint, when that issued had not been agitated during the trial. His Honour indicated that, in such a case, he would not give, either, a section 405B(b) direction. His Honour invited counsel to consider overnight what they wished to do in connection with those matters.

“CROWN PROSECUTOR: Just while the jury is coming back, does your Honour propose to say anything about delay?

HIS HONOUR: Well I don’t intend to unless somebody wants me to.

CROWN PROSECUTOR: No, your Honour.

HIS HONOUR: It’s a bit curious in this case seeing that there’s in fact a witness who gives evidence of a particular incident, it’s a bit hard then to start to talk about complaint and delay of complaint.

CROWN PROSECUTOR; Yes, your Honour.

[ACCUSED’S COUNSEL]: The only thing is with delay, is that as your Honour gave a very appropriate direction in the last trial relating to the difficulty for the Defence, you ---

HIS HONOUR: I’ll do that, I intend to do that.

[ACCUSED’S COUNSEL]: Thank you your Honour.

HIS HONOUR: I just don’t intend to give a direction about complaint or lack of complaint.

[ACCUSED’S COUNSEL]: No, well I think that’s probably the most appropriate course, your Honour.

HIS HONOUR: Well it’s up to – you’re quite content with that?

[ACCUSED’S COUNSEL]: Yes, I am.”

“required to scrutinise”

“with some care before you rely upon it”

“When assessing her evidence in relation to these matters of course you have to take into account that these incidents occurred many years ago and that in respect at least of the early allegations that they relate to a period when she was a very young child. You could also, when you are assessing the complainant’s evidence and determining whether you can convict the accused on that evidence, the fact that these matters have come to the surface for trial so long after they are said to have occurred and it may now have resulted in some difficulties for the accused in defending himself. By reason of that delay he may have been deprived of the opportunity of finding witnesses who might indicate that what the complainant or her sister says could not possibly have happened.

………. (the complainant and DAW)………

Because of these difficulties, and because it is the only evidence on which the Crown relies, you have to scrutinise the evidence of the complainant carefully before you can convict the accused upon it. However in giving you that direction be perfectly clear I am not indicating to you my personal view at all about the way you should assess the complainant’s evidence or how you should determine the particular allegations in this case.

I have told you that I do not intend to convey my personal opinions. I am merely doing what the law requires me to do, and that is to point out to you the importance of the complainant’s evidence in your deliberations and matters which might indicate or affect the weight of her evidence before you. Really I am only emphasising matters which are matters of common sense and which you would understand anyway. But I make it perfectly clear you are entitled to convict the accused on the evidence of the complainant alone but only once you have considered it carefully and only if you are satisfied beyond reasonable doubt that she is honest and accurate in relation to any or all of these allegations.”

64 The submissions put for the appellant can be stated conveniently by referring, once again, to the relevant written submissions. Those submissions propound the following propositions, omitting references to curial decisions:

“5.3 It is submitted that the directions were inadequate in the circumstances of the present case and in particular that, taken as a whole, they did not constitute a proper warning against the dangers of conviction.

5.4 The directions in the present case did not ‘warn’ or ‘caution’ the jury. At most the directions constituted a comment on the need to scrutinise the evidence ‘with some care’ while the circumstances required a strong warning against the dangers of conviction.”

65 The propositions thus advanced raise for consideration important questions of principle that have been the subject in recent times of three separate decisions of the High Court of Australia: Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 176 ALR 369; and Doggett v The Queen (2001) 182 ALR 1.

66 The gradual development of this line of jurisprudence in the High Court has given rise to a spate of decisions by variously constituted Benches of this Court. One of those decisions, Reg v Johnston (1998) 45 NSWLR 362 was decided prior to the two decisions in Crampton and in Doggett; but it will be useful for present purposes to refer later herein to some of the observations made in that case.

67 The decision in Johnston apart, the year 2001, to take it as an example, yielded at least the following decisions: The Queen v Dixon [2001] NSWCCA 39; Mason P. Giles JA and Whealy; delivered 16 March 2001; Reg v Roddom [2001] NSWCCA 168; Meagher JA;Sully and Howie JJ; delivered 23 April 2001; Reg v G.J.H [2001] NSWCCA 128; Stein JA, Wood CJ at CL and Studdert J; delivered 24 April 2001; Reg v Ball [2001] NSWCCA 352; Bell and Howie JJ, Smart AJ; delivered 5 May 2001; Reg v Murre [2001] NSWCCA 286; Giles JA, Hulme and Adams JJ; delivered 27 July 2001; Reg v Roberts [2001] NSWCCA 163; Giles JA, Howie J and Carruthers AJ; delivered 5 October 2001; Reg v Folli [2001] NSWCCA 531; Mason P, Sperling and McClellan JJ; delivered 19 December 2001.

68 I do not propose to canvass discursively, in what follows herein, each of those decisions from last year. All of them refer to, are based upon, and, generally speaking, quote extensively from one or more of the three High Court decisions previously herein mentioned. Each turns, ultimately, upon its own particular facts. There are, in one or two of that succession of decisions, occasional observations which seem to me to be useful for present purposes; but those references apart, it seems to me to be more useful to concentrate upon the three High Court decisions.

Notwithstanding that some support is given to Gleeson CJ’s proposition by the relevant parts of the judgment of McHugh J in Doggett , I think that the conclusion is unavoidable that, as matters currently stand, all five of the remaining Justices of the High Court do not accept the Chief Justice’s proposition.

[2] It seems to be a fair inference from the various statements of principle of those five Justices of the Court that they would all accept, at least to some extent, a measure of discretionary flexibility on the part of a trial Judge who is required to give a Longman direction.

It seems to me, however, that the majority Justices regard that margin of discretion as being a very narrow one. It seems to be their Honours’ position that such a residual discretion is available for the purpose of strengthening what I might describe as the basic Longman direction; but that it is not available so as to water the basic direction down in any way.

[3] It seems to me to be a reasonable inference from what their Honours have said that all the current Justices of the High Court, excepting the Chief Justice and McHugh J, take the basic position that in any criminal trial a feature of which is substantial delay in complaint of alleged sexual offences then charged against the particular accused, a Longman direction must be given. Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Doggett :

(a) The direction must be cast in the form of a warning . Any form of expression which is thought to have the character of a comment , or even of a caution will not sufficiently comply with what is required by law.

It seems to me to follow that any trial Judge who is framing a Longman direction ought to ensure that the direction is framed, in terms, as a warning .

(b) That which is to be warned against is, to return to the majority judgment in Longman itself: “that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy” .

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fifthly

sixthly

(c) Not only must the substance of the warning be carefully and correctly focused, but the form of the warning, also, must be carefully and correctly framed.

The form of the warning must be such as bears unmistakably the imprint of the Court’s own authority. It must be made clear that the foundation of that authoritative warning of the Court itself is the accumulated experience of the Courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated. A ready example of that will be found in the trial directions in Crampton .

(d) In framing the substance of a Longman direction, a Judge must keep in mind not only the guidance given by the joint judgment in Longman itself, but also the additional considerations to which reference was made in their respective judgments by Deane J and McHugh J.

(e) The decision in Doggett will mean, in practical terms, that the framing of a satisfactory Longman direction will be a much more fraught and difficult experience in a case where the particular complainant’s evidence does not stand entirely alone, but is supported, whether patchily or not, by some other evidence that is capable of being regarded reasonably as corroborative evidence.

“If, by a Longman warning is meant a warning that it was unsafe to convict on the uncorroborated evidence of the complainant, in the circumstances of this case such a warning, to be of practical assistance to the jury, would have required the trial judge to go into the matter of corroboration, to direct the attention of the jury to the evidence capable of being regarded as corroborative and to explain its possible significance. Why would defence counsel invite that? As far as he was concerned, the less said about corroboration the better.”

The majority Justices, that is to say Gaudron and Callinan JJ in their Honours’ joint judgment and Kirby J in his Honour’s separate judgment, do not go so far as to say that a Longman direction will always be required notwithstanding that there is evidence capable of corroborating, whether in whole or in part, the particular complainant’s own evidence. What their Honours do make plain, is that the availability of such corroborative evidence cannot, of itself , obviate the need for a proper Longman direction. What their Honours appear to be saying is that the availability of such corroborative evidence will require the particular trial Judge to make a painstaking analysis of the way in which, of the extent to which, and of the particular points in connection with which, the corroborative material is effective; and then to decide whether the resulting state of affairs leaves open, notwithstanding the corroboration, such forensic disadvantage as to call for the giving of a Longman direction.

(f) The initial trigger for any Longman direction is the passage of time between the alleged offence and first complaint. No doubt, and as Kirby J observes in Doggett , “(t)he criterion for the provision of a warning as stated in Longman is not mathematically precise” . His Honour goes on to say that “in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary” . (emphasis added) His Honour refers in a footnote to Crofts , where the delay between the first alleged offence and complaint was about six years, although there had been offences allegedly continuing until about six months before complaint; and Jones v The Queen (1997) 191 CLR 439, where there was a delay in the order of four years between offence and complaint.

On these particular points, Gaudron, Gummow, Hayne and Callinan JJ in the judgments variously delivered by their Honours in Crampton and in Doggett , are not, I think, as precise as is Kirby J. I think, nevertheless, that the prudent inference to be drawn from what their Honours have variously said in Crampton and in Doggett is that they would support, at least generally, the propositions advanced by Kirby J.

It is, I think, clear enough that a delay in the order of 20 years would require, imperatively in the view of the current majority opinion in the High Court, a Longman direction, and a strong one at that. What is not clear is whether there is any, and if so what, time lapse that would be generally regarded by current majority opinion in the High Court as not calling for the giving of a Longman direction.

While that state of affairs continues, it seems to me that the only prudent approach of a trial Judge is one that regards any delay between offence and complaint as sufficient to raise for consideration the need for a Longman direction. That consideration should concentrate upon two related factors, namely, the actual lapse of time involved in the particular case; and the actual risk of relevant forensic disadvantage in the particular case. 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”.

96 In endeavouring to apply the foregoing discussion, and the principles which are in my opinion correctly to be derived from it, to the directions actually given in the present case by the learned trial Judge, I have kept in mind the practical realities that confronted his Honour on the relevant occasion. His Honour was sitting in a country circuit town, with all that is thereby entailed in terms of limited resources. His Honour was trying a matter, the basic allegations in which were clear and straightforward. His Honour got virtually no assistance from the Bar table in connection with the need for any, and if so what, Longman direction. His Honour was burdened, of course, with the advice given over many years, and both by the High Court and by variously constituted Benches of this Court, to the effect that trial Judges should not be unduly technical or complicated in charging a jury, but should prefer always to express themselves simply and clearly. The directions given in fact by his Honour to the jury seem to me, if I may respectfully say so, to have been both practical and sensible, having regard to the way in which the comparatively short trial had been conducted both by the Crown and by the defence; and to the way in which the issues for trial had been crystallised as between the Crown and the defence.

97 I find it, if I may presume to say so frankly, unpalatable to have to say in such a context that the directions given to the jury do not meet the requirements of the current law in connection with the so-called Longman direction. But, unpalatable or not, I have come to the conclusion that there is no way in which the brief and temperate directions given by his Honour to the particular jury can be accommodated to the requirements established, not only by Longman itself, but by the subsequent decisions in Crampton and in Doggett

98 In my opinion Ground 2 has been established. It follows that there must be, in my opinion, a new trial unless the remaining grounds of appeal, Grounds 3 and 4, raise successfully an acquittal point.

99 It seems to me that the points taken in connection with Ground 3 are all new trial points. All of the various pieces of evidence to which Ground 3 points were not adduced at the appellant’s trial, but are available to be adduced at any re-trial of the appellant. It seems to me that, in those circumstances, it is not appropriate, Ground 2 having been upheld, to pre-empt what might happen at any re-trial resulting from the upholding of Ground 2.

100 The submissions for the appellant propounded the following matters as factors, the combined effect of which required a conclusion that the convictions of the appellant could not be sustained reasonably having regard to the whole of the evidence adduced at his trial:

“- The case in respect of 8 of the 10 counts was one of word against word;

- In respect of the 2 counts where there was corroboration, there were fundamental and unlikely inconsistencies between the prosecution witnesses as to when and where the incident occurred;

- There was no evidence of immediate or recent complaint;

- There was an extensive delay between the alleged offence and the trial, between 18 and 24 years in the case of each charge;

- There was no independent corroboration of the offences;

- (The appellant) denied each of the allegations on oath;

- (A particular witness’s) evidence suggested the complainant’s account in respect of particular allegations (surrounding the complainant’s birthday) was wrong;

- (The appellant) had no criminal convictions and was a person of good character;

- The evidence of (the witnesses called in the defence case) undermined the complainant’s evidence with respect to important peripheral matters.”

101 The relevant legal principles are not in doubt. They are stated authoritatively in the decision of the High Court: M v The Queen (1994) 181 CLR 487; see in particular per Mason CJ, Deane, Dawson and Toohey JJ at 493-495.

102 In my opinion Ground 4 has not been made good.

103 The issues of fact presented in this trial for the consideration of the jury were few and uncomplicated. There were no half measures in the framing of the defence attack upon the credit of the complainant. There was no suggestion of error in recollection on the part of the complainant. What was suggested, simply and clearly in the complainant’s cross-examination, was that she had deliberately concocted the entirety of her allegations against the appellant; and had done so for financial gain to herself. The appellant’s sworn defence did not rely upon the lapse of time; or upon any other stated forensic disadvantage resulting from the lapse of time. The appellant’s stance could not have been plainer or more simple. His stance was a simple and comprehensive denial of each and every one of the complainant’s allegations against him.

104 Notwithstanding what I have said earlier herein in connection with Ground 2, it cannot be denied that the jury was given a clear warning of the need to scrutinise with care the evidence of the complainant before accepting it as, not only honest, but also reliable. The jury must be presumed both to have understood, and to have given effect to those directions.

105 In those circumstances, I do not see any present justification for this Court’s now setting aside the verdict of the jury upon the basis that this Court is convinced that the jury, acting reasonably, ought to have had a reasonable doubt about the guilt as charged of the appellant.

106 For the whole of the foregoing reasons, I am of the opinion that the Court should order:

[1] that the appeal be allowed;

[2] that the convictions recorded and the sentences passed in the Court below be quashed;

[3] that there be a new trial of the appellant.

107 In CSR Limited & Anor v Bouwhuis (unreported; Court of Appeal; 23 August 1991), Samuels JA observed:

“The role of the judicial dissenter, after the initial protest has been made, is necessarily to maintain a silent vigil in the wings of jurisprudential history. It may remain solitary, or it may culminate in a summons to centre stage. But it does not involve denigrating the current script or booing the players.”

108 I do not intend in what follows either to denigrate the current script or to boo the players. I wish, rather and simply, and speaking as one who is called upon to preside regularly over criminal trials with a jury, to draw attention to some practical results for trial Judges of the matters which it has been necessary to discuss in the context of the present particular appeal.

109 In this State a Judge who is presiding at a criminal trial comes to the summing-up burdened with a great deal of appellate judicial advice as to how the summing-up should be framed. Three particular examples will make the point.

110 In Reg v Zorad (1991) 19 NSWLR at 91, this Court, in a joint judgment, gave the following advice:

“A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: ……………………………… .” [19 NSWLR, 105E]

111 In Reg v Williams (unreported: Court of Criminal Appeal: 10 October 1990) Badgery-Parker J offered this advice:

“It seems to me that it would be regrettable if trial judges have come to feel themselves under pressure to deliver to juries complex lectures on the law. It is my recollection that it used to be the approach of trial judges in many cases to make no attempt to give the jury lengthy explanations of the law but simply to state for the jury in simple terms the issues which by the application of the law to the evidence given were thrown up for their decision and the consequence, in terms of verdict, of the way in which those issues might be decided. That trial judges have departed from that practice may in part be a consequence of over-zealous scrutiny of summings-up by counsel before this court.

Obviously there are many cases where the issues are far more complex but in every case, a trial judge should do his utmost to highlight for the jury in language which they are likely to understand the issues that they have to decide. It is in my view rarely necessary to explain the legal principles which give rise to the necessity for the jury to decide the issues thus posed. The judge should take the responsibility of analysing the evidence in terms of his knowledge of the legal elements of the crime charged, and should then take the responsibility of telling the jury what questions or issues it must determine and what are the legal consequences, in terms of the ultimate verdict, that flow from the way in which they determine those issues. …………………………….

It appears to me that trial judges ought to be encouraged to simplify their directions to the jury as far as possible, to avoid lectures on law and unnecessary explanations of legal principles, and, having made clear to the jury the law as to the onus and standard of proof, in most cases to do no more than to identify the issues, stated as simple questions of fact, to which the jury must give attention, and then of course to identify and summarise for the jury the evidence bearing on each of those issues. To the extent to which a contrary practice has developed, I think the time has come for a correction to be made.”

112 In Reg v Knight, (unreported: Court of Criminal Appeal: 19 December 1990), Wood J (as he then was) offered this advice:

“It may be seen from the foregoing that the appeal was conducted on an exceedingly large number of grounds concerning the admissibility of evidence and the adequacy of the summing-up, the majority of which were not raised at trial. I would wish to reiterate the view expressed elsewhere that the tendency, which I regret is displayed in this case, of a minute dissection of the summing-up and of the conduct of the trial below is to be strongly discouraged: ……………………………. .

Such an approach ignores the all-important atmosphere of the trial and is unrealistic and unprofitable. As was pointed out in R v Williams (Court of Criminal Appeal, unreported 10 October 18990), simplicity and directness should be the objectives of a summing-up, and the irrelevant and unnecessarily complex should be discarded. A summing-up has to be read in its entirety, and when challenged the inquiry should be as to whether the law, the evidence and the issues have been left in a way ensuring that the accused has a fair trial.”

113 Not always expressed, but always, as it seems to me, underlying such appellate advice to trial Judges, are certain assumptions as to the way in which criminal trials are properly to be conducted in our system of criminal justice. I know of no better or more compelling summary of those underlying assumptions, if I may respectfully say so, than those that will be found in paragraphs [1] to and including [4] in the judgment of Gleeson CJ in Doggett.

114 It seems to me, if I may say so with unfeigned respect, that the combined effect of the decisions in Longman, in Crampton and in Doggett makes it, if not quite impossible, at least extremely and unnecessarily difficult for a conscientious trial Judge when directing a jury, to give dutiful effect, as of course he must do, to the requirements of those decisions, while simultaneously giving effect to the requirement that he be succinct, simple and clear.

115 Suppose that the case is one like Doggett itself, that is to say, a case in which there is some, albeit perhaps patchy, corroboration of at least some parts of the complainant’s own evidence. Suppose that counsel for the accused is alive to the forensic problems that are described by Gleeson CJ in paragraph [9] of his Honour’s judgment in Doggett. Suppose that counsel for the accused, mindful of that forensic minefield, does not ask for a Longman direction; or, indeed, asks that no such direction be given. Where, it might reasonably be asked, does that leave the trial Judge? There are, obviously I should have thought, only two practical choices. One is to accede to the request that there be no Longman direction. The other is to over-ride that request in the spirit of Pemble v The Queen (1971) 124 CLR 107. If the Judge takes the former course, the current state of the law makes it overwhelmingly probable that any resulting conviction will be upset on appeal. If the Judge takes the Pemble approach, then he will find himself mired inevitably in the very problems of which Gleeson CJ gives warning in the paragraph [9] to which I have earlier referred; and there is raised thereby the prospect that a requirement intended to protect the accused turns out to have in fact exactly the opposite practical result.

116 Suppose, to take another practical possibility, that the trial Judge gives a Longman direction. Suppose that the jury, after retirement to consider its verdict, sends in a note asking the trial Judge whether there is any, and if so what, evidence indicative of any practical difficulty or difficulties in fact encountered by the particular accused by reason of the effluxion of time between the time of the alleged offence and the time of complaint. And suppose that, as in the present particular case, there is in truth not a scintilla of evidence of any such practical forensic disadvantage having been suffered by the particular accused. What, then, is the trial Judge to do? If he tells the jury the simple truth, it is likely to be held that he has thereby destroyed the efficacy of the Longman warning. If he tells the jury that it is no concern of theirs to enquire whether or not there is any such particular evidence; but that they are to proceed upon the simple basis that the experience of the Courts suggests that there has been some such forensic disadvantage, whether or not the particular accused has claimed it, or given evidence of it, the practical likelihood is that the jury will reason that, since it is not possible to see in any concrete way evidence of actual forensic disadvantage, there is no good reason why, as a matter of fact, it should be found that there has been any. In which event the apparent lack in the particular case of any discernible factual underpinning for the Longman direction produces, once again, the result that an intended protection for the accused ceases to afford the accused any protection, and tends rather to have the opposite effect in practice.

117 And, quite apart from the matters raised in the two immediately preceding paragraphs, what guidance, it might fairly be asked by a trial Judge, does the current state of the law give as to the practical definition of the sort of time lapse which justifies, in a real sense, the giving at all of a Longman direction. It is, I should think, simple enough for any trial Judge to grasp the concept, articulated by Kirby J in Doggett, that: “(t)he criterion for the provision of a warning as stated in Longman is not mathematically precise”. But what exactly, the trial Judge might find himself wondering, is meant by the proposition that “in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary” (emphasis added)? Even after some definition has been given to the fluid concept of “a comparatively short interval”, it remains necessary to consider, granted that there has been such a short interval, not whether a Longman direction might or might not be required, but whether such a direction is or is not required. If the Judge approaches that conundrum upon the basis that the determining consideration is the presence of an unacceptable risk of unfairly prejudicial forensic disadvantage, then either the Judge assumes as a matter of law, and notwithstanding the complete absence of relevant evidence, that there has been some such forensic disadvantage; or the Judge refuses to give the direction unless there is in hand at least some credible evidence from which there may be drawn a reasonable inference that there has been, in a sense that is not far-fetched or fanciful, relevant forensic disadvantage. Either way, the answer gives rise, as I have attempted to demonstrate in the preceding paragraphs, to yet further practical problems.

118 There is one additional matter worthy of present consideration.

119 DOWD J: I have read the judgments of Wood CJ at CL and Sully J in draft form. I agree with the reasons of both Wood CJ at CL and Sully J and the orders proposed by Sully J.

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R v BWT [2002] NSWCCA 60

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CITATION:	Regina v B.W.T [2002] NSWCCA 60
FILE NUMBER(S):	CCA 60252/00
HEARING DATE(S):	30 January 2002
JUDGMENT DATE:	12 April 2002
PARTIES :	Regina B.W.T
JUDGMENT OF:	Wood CJ at CL at 1; Sully J at 42; Dowd J at 119

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/71/0141
LOWER COURT JUDICIAL OFFICER :	Howie DCJ

COUNSEL :	L. Lamprati - Crown P. Hamill - Appellant
SOLICITORS:	S. E. O'Connor - Crown D. J. Humphreys - Appellant
LEGISLATION CITED:	Crimes Act 1900 (NSW) Evidence Act 1906 (W.A.) Crimes Act 1958 (Vict.)
CASES CITED:	The Queen v Maric (1978) 52 ALJR 631 The Queen v Glennon [1992] 173 CLR 592 R v George (1987) 29 A Crim R 380 Reg v Channell [2000] NSWCCA 289 Longman v The Queen (1989) 168 CLR 79 Crampton v The Queen (2000) 176 ALR 369 Doggett v The Queen (2001) 182 ALR 1 Reg v Johnston (1998) 45 NSWLR 362 The Queen v Dixon [2001] NSWCCA 39 Reg v Roddom [2001] NSWCCA 168 Reg. v G.J.H [2001] NSWCCA 128 Reg v Ball [2001] NSWCCA 352 Reg v Murre [2001] NSWCCA 286 Reg v Roberts [2001] NSWCCA 163 Reg v Folli [2001] NSWCCA 531 Reg v Spencer [1987] AC at p.141 Jago v District Court (NSW) 168 CLR 91 Crofts V The Queen (1996) 186 CLR 427 Reg v J.G.W [1999] NSWCCA 116 Veen v The Queen (No. 2) (1988) 164 CLR 465 Jones v The Queen (1997) 191 CLR 439 Wyong Shire Council v Shirt (1980) 146 CLR 40 M v The Queen (1994) 181 CLR 487 CSR Limited & anor v Bouwhuis - unreported - CA: 23 Augusut 1991 Reg v Zorad (1991) 19 NSWLR Reg v Williams - unreported - CCA: 10 October 1990 Reg v Knight - unreported - CCA: 19 December 1990 Pemble v The Queen(1971) 124 CLR
DECISION:	Appeal allowed; convictions recorded and sentences passed in Court below quashed; new trial ordered