R v Cassebohm - [2011] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CASSEBOHM
[2011] SASCFC 29
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)
21 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
The appellant was convicted, after a trial by jury, on six counts of unlawful sexual intercourse with Ms A contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) that allegedly took place between 25 December 1985 and 31 March 1986 – Ms A was aged 14 at the time of the alleged offences – the appellant was Ms A’s employer – there was an initial complaint by Ms A in 1986 but no charges were laid – by the time of the trial the police file had been destroyed and all that remained was an apprehension report – key witnesses had died before the trial – whether s 34CB of the Criminal Law Consolidation Act 1935 (SA) applied to the directions given by the trial Judge – whether s 34CB(1) should be given a narrow or broad interpretation in relation to the abolition of the Longman warning – whether the trial Judge’s directions were adequate in the circumstances of the case – whether after a 24 year delay the impairment of memory amounted to a significant forensic disadvantage – whether the loss of the police investigation file amounted to a significant forensic disadvantage – whether the jury should have been warned not to reason that because the appellant lied, if he did, he was guilty – whether the jury should have been told that a lie could reflect only upon the appellant’s credibility – whether there was a real risk of a miscarriage of justice – whether the verdict was unsafe.
Held: appeal allowed, convictions set aside and re-trial ordered – s 34CB applied to the case – the lapse of time between the alleged offending and the trial resulted in a significant forensic disadvantage – the trial Judge’s directions to the jury were inadequate and gave rise to a real risk of a miscarriage of justice – a direction to the jury not to reason that any lies or inconsistencies were evidence of guilt was not necessary – the verdict was not unsafe as it was open to the jury to find the counts proved beyond a reasonable doubt on the evidence at trial.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Evidence Act 1929 (SA) s 34CB, s 34CB(1), s 34CB(2), s 34CB(2)(a); Criminal Code 1997 (Qld) s 632, referred to.
Longman v The Queen (1989) 168 CLR 79; Robinson v The Queen (1999) 197 CLR 162, discussed.
Crampton v The Queen (2001) 204 CLR 161; Doggett v The Queen (2001) 208 CLR 343; Tully v The Queen (2006) 230 CLR 234; Dhanhoa v The Queen (2003) 217 CLR 1, considered.

R v CASSEBOHM
[2011] SASCFC 29
Court of Criminal Appeal: Doyle CJ, White and Peek JJ

DOYLE CJ: Mr Cassebohm was convicted, after a trial before a jury, on six counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The offences were alleged to have taken place between 25 December 1985 and 31 March 1986. This was a case in which the time of the alleged offences could be identified with reasonable accuracy. The complainant in each case was Ms A, then aged 14 years. Mr Cassebohm was her employer. He was then aged 37 years. Ms A worked for him during the school holidays.
Ms David, for Mr Cassebohm on appeal, submits that a miscarriage of justice has occurred, attributable mainly to two circumstances. First, she submits that the trial Judge failed to direct the jury adequately in relation to the effect of the passage of time between the alleging offending and the trial. This submission raises the application to the case of s 34CB of the Evidence Act 1929 (SA). Second, she submits that the trial Judge erred in failing to direct the jury that if they found that Mr Cassebohm had lied in his evidence before them, it did not necessarily follow that he was guilty. She also complains that the direction in relation to certain medical evidence was inadequate.
Facts
At the time in question Mr Cassebohm operated a food van from which he sold ready to eat food. The mother of a school friend introduced Ms A to Mr Cassebohm. A little later Mr Cassebohm spoke to Ms A’s mother, who agreed to Ms A working for Mr Cassebohm on weekends during the school holidays. Ms A’s home was some distance from the place where the food van was operated. An arrangement was reached between Mr Cassebohm and Ms A’s mother that Ms A could stay overnight in Mr Cassebohm’s home on the nights that she worked for him. This avoided the need for Mr Cassebohm to drive her home late at night. Ms A said that the alleged offences occurred at his home, when she was staying there after working for him. The prosecution case was that Mr Cassebohm made this arrangement because he was sexually attracted to Ms A. Ms A described in evidence how, on occasions corresponding with the charges, Mr Cassebohm prevailed on her to submit to acts amounting to sexual intercourse. There is no need to go into the details. Ms A gave no evidence in relation to one count. The Judge directed the jury to acquit on that count.
Ms A gave evidence that apart from the occasions the subject of the charges, Mr Cassebohm had vaginal intercourse with her almost every Friday and Saturday night when she stayed at his home.
The circumstances in which Ms A finished working for Mr Cassebohm were disputed. Ms A gave evidence that on a particular occasion she stayed at Mr Cassebohm’s house once more. She declined to have intercourse with him. Mr Cassebohm was angry. Ms A left the house and did not return. Shortly before this, during March 1986, Ms A told a school friend that Mr Cassebohm was making her “have sex with him”.
On 17 March 1986 Ms A was medically examined by Dr Black. Evidence of the examination was given at trial. The examination was a result of a complaint made by Ms A to the police, shortly before the medical examination. Ms A was interviewed by the police. Some form of investigation was carried out. Mr Cassebohm was interviewed by the police on 1 June 1986.
By the time of the trial the police file had been lost or destroyed. There was no record of Ms A’s statement, nor of Mr Cassebohm’s interview. All that remained was an apprehension report. The investigating officer, who was called at trial, had no memory of the matter. No charges were laid. There was no evidence available about the reason for that.
In 1998 the father of the school friend to whom Ms A first complained died. He had been involved in a telephone conversation between Ms A and her mother after Ms A left Mr Cassebohm’s house for the last time. He might have had some relevant knowledge.
Ms A’s mother died in June 1999. Subject to the quality of her memory, she could have given relevant evidence about Ms A’s employment with Mr Cassebohm and possibly about relevant conversations with Ms A.
In 2007 Ms A spoke to the police again, and renewed her allegations. Mr Cassebohm was interviewed in December 2008. An Information was filed in the District Court in October 2009. The trial took palce in November 2010. Ms A was 39 years old at trial.
Mr Cassebohm gave evidence. He was then aged 62 years. He denied any improper conduct with Ms A. When interviewed by the police he told them that Ms A did not work for him for as long as she claimed, and that she stayed at his house only on two or three occasions. He gave evidence contrary to hers in relation to some of the circumstantial details. He had little or no memory of the interview by police in 1986. He told the jury that his memory for details was not good, and that he had difficulty remembering things in the more distant past. He was cross-examined in some detail about suggested inconsistencies between his record of interview (in December 2008) and his evidence. The prosecutor did not suggest in terms when addressing the jury that Mr Cassebohm was lying. She said that he was trying to minimise his involvement with Ms A, and that if the jury thought he had, they could take that into account in assessing his evidence.
The directions
In relation to the passage of time, the trial Judge directed the jury as follows:
In considering all of the evidence you should also bear in mind that the effluxion of time, well over 20 years, may obviously have served to affect memory and you should bear in mind the likelihood of error increasing with the passage of time. You have also been denied the advantage of seeing, hearing or knowing what was precisely alleged at the time in his interview with the police at the Darlington Police Station on 1 June 1986 when, of course, the events were much fresher in everyone’s mind. You have also been denied the chance of assessing the worth of the detailed answers to the allegations at the time by the accused. Access to that material might have also served to assist in reviving the accused’s memory of events, given his later health problems. You must take these forensic disadvantages into account when scrutinizing the evidence.
In relation to the cross-examination of Mr Cassebohm about inconsistencies, the Judge said:
Then [the prosecutor] turned to the interview with the accused and the accused’s evidence, and argued before you that, in effect, on both occasions he was trying to minimise his own involvement, that at times he gave inconsistent responses and that it did not fit very well with the evidence of the other witnesses in the prosecution case so far as it went.
In relation to the defence submission on the effect of the passage of time, he said:
As to [defence counsel], he began by pointing out the difficulty of Mr Cassebohm defending himself against allegations which are 24 years old, and the inherent difficulties of allegations that he met head on in 1986 when he spoke to [the investigating officer] at the time, the details of which we do not know anything about because they have been lost or destroyed. [Defence counsel] made the point “Unfortunately we do not know even why the charges did not proceed”.
Referring to the police interview in December 2008 the Judge said to the jury:
[Defence counsel] then went through the interview with you in some detail and I do not repeat it because it is fresh in your memory. It was late in the afternoon, he had had a few drinks, Mr Cassebohm had some health problems and some consequent memory problems in the meantime. [Defence counsel] gave you details about all of those and reminded you about those issues.
Mr Cassebohm had given evidence that when interviewed by the police he was suffering from the combined effects of medication and some alcohol that he had consumed.
This was a case in which the prosecution case rested on the evidence of Ms A. As to that, the Judge said:
Members of the jury, in the end result you may well think this case depends on your acceptance of [Ms A], I stress the necessity of being satisfied beyond reasonable doubt of the truthfulness and reliability, as her evidence stands alone as proof of the prosecution case.
I stress, as there is only one witness asserting the commission of the alleged crimes, her evidence must be thoroughly scrutinised with great care before a conclusion is arrived at before a verdict or verdicts of guilty should be brought in.
Moreover, I point out where an accused person has given evidence in denial of the charge, as Mr Cassebohm has, and there is no convincing support for the allegations, it might be difficult in such circumstances to arrive at a conclusion of guilt beyond reasonable doubt. There are cases, however, in which an alleged victim’s evidence is so convincing and the accused’s denials so incredible, that it is possible to reach that state of mind, always bearing in mind the directions and warnings that I have given you. The prosecution case in the end depends upon your acceptance that the evidence of [Ms A] was both true the (sic) reliable beyond reasonable doubt, notwithstanding the sworn denials of Mr Cassebohm.
Directions relating to the passage of time
Ms David submits that the Judge’s directions to the jury relating to the passage of time were inadequate. That submission requires a consideration of the effect of s 34CB of the Evidence Act 1929 (SA). That section was enacted in 2008. It provides as follows:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)     A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)     If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)     An explanation or direction under subsection (2) may not take the form of a warning and—
(a)     must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
A consideration of this submission makes it necessary to identify what it is that subsection (1) abolishes; necessary to refer generally to certain aspects of the duties of a trial judge in directing a jury; and necessary to consider, in light of that, the extent of the obligation imposed by subsection (2).
Lawyers and judges often refer to a Longman warning. This is a convenient shorthand expression. But the use of that expression can hinder rather than assist the identification of the duties of a trial judge, because it does not identify the content of a Longman warning.
First of all, a Longman warning is a warning given by a judge to a jury based on the application, to the circumstances of a particular case, of the general principle identified by Brennan, Deane and Toohey JJ in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. Their Honours were considering West Australian legislation that did away with an obligation to warn a jury that it was unsafe to convict a person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed (they refer to this as “the special rule”). They said at 86:
Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Bromley v. The Queen (1986) 161 CLR, at pp319, 323-325; Carr v. The Queen (1988) 165 CLR 314, at 330.
See also Deane J at 95-96, McHugh J at 107.
The significance of this is that the general principle survives the abolition of the “rule of law or practice” arising from its particular application as evidenced by the decision in Longman. The High Court made this point in Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162. The Court was considering certain Queensland legislation that abolished any rule of law or practice requiring a judge to warn a jury that it was unsafe to convict an accused on the uncorroborated testimony of one witness. The section is s 632 of the Criminal Code (Q), which came into force in 1997. As to that the Court said at [20]:
[20]Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence, its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect.
The same point was made by Brennan, Dawson and Toohey JJ in Longman at 87. See also McHugh J at 107.
It follows that although the obligation to give a Longman warning is abolished, a comment or warning may be required in the light of the particular circumstances of a case other than those that would have given rise to the obligation to give a Longman warning. That makes it all the more important to be clear about what the abolished Longman warning is.
Second, s 34CB(1) abolishes any obligation of a judge to give a warning of the Longman kind. It does not prohibit a judge from making a comment on facts as distinct from giving a warning, if the judge thinks it appropriate to do so. As to the distinction between a comment and a warning see Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161 at [39] Gaudron, Gummow and Callinan JJ; and at [125]-[126] Kirby J.
Third, a Longman warning is associated with the passage of a substantial period of time between the events the subject of a charge and the trial of the charge. More precisely, the warning identified in Longman arises from a disadvantage to an accused person attributable to the passage of time, that disadvantage being a disadvantage in facing and answering a charge after a period of time, and in testing the evidence of a complainant. In Longman Brennan, Dawson and Toohey JJ said at 90-91:
The question which arose, and which arose under the latter part of par. (b), was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s. 36BD requires) that there may be "good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence". But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer [1987] AC 128, at p141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 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 (N.S.W) (ante, pp. 31-32, 42-44, 56-57, 71-72) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.
As can be seen from this passage, the emphasis is on delay and the consequential adverse impact on the ability of the accused to meet the case against him, and on the circumstance that this is something that the jury might not appreciate. But there are other aspects of the evidence, referred to in the passage above, that supported the making of a comment at least, and probably the need for a warning. So in practice a Longman warning may not be based solely on forensic disadvantage resulting from the passage of time. The significance of the combined effect of delay and other factors can be seen also in the reasons of Deane J at 100-101 and in the reasons of McHugh J at 108. The slightly different emphasis between the plurality on the one hand and Deane and McHugh JJ on the other hand is referred to by Gaudron, Gummow and Callinan JJ in Crampton at [42], where their Honours said, referring to Longman:
[42]There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant’s evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant’s evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours’ unanimous decision in the result.
Citations omitted

While a Longman warning is based on the forensic disadvantage caused to an accused person by the passage of time, in practice it will often be based on other particular aspects of the case in question as well.
As Gleeson CJ said in Doggett v The Queen [2001] HCA 46, (2001) 208 CLR 343 at [9], the use of the expression “a Longman warning” is elliptical. He went on to say, and I respectfully agree, at [13]:
[13]… The use of the expression “a Longman warning” is not particularly enlightening, unless accompanied by an explanation of the terms of the warning, and may distract attention from the need to relate all directions to the circumstances of the particular case, and to the issues as they have emerged for resolution by the jury.
I consider that s 34CB(1) must be read as abolishing a Longman warning in the narrow sense of a warning based on the forensic disadvantage to an accused person attributable to the passage of time. Subsection (2) of s 34CB, which is clearly a qualification on subsection (1), strongly supports that conclusion. So does the consideration that unless s 34CB(1) is read in that limited sense, it becomes very difficult to know what it is that is abolished. It does not abolish the duty of a judge to give a warning called for by other circumstances, nor the power of a judge to make an appropriate comment.
It is desirable to emphasise that a Longman warning is not based simply on the passage of time between the events the subject of the charge and the trial. The need for the warning arises from a forensic disadvantage that an accused person suffers attributable to the passage of time. The disadvantage can be of two broad kinds. It was conveniently summarised by McHugh J in Doggett at [51], where His Honour said:
[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 witnesses were doing when the offences were alleged to have occurred.
The position was also conveniently summarised by Crennan J in Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 at [181] where Her Honour said:
[181]The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it twenty years, or two or three years, creates a forensic disadvantage to an accused in respect of adequately testing allegations or adequately marshalling a defence, compared with the position if the complaint were of “reasonable contemporaneity”.
Citations omitted
The kind of warning that is often given in a case attracting the need for a Longman warning is illustrated by what Gaudron, Gummow and Callinan JJ said in Crampton, with reference to the directions given in that case. Their Honours said at [45]:
[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. … 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 the 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. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: …
The relevant disadvantage to an accused person has often been referred to as a forensic disadvantage. This also is a convenient shorthand for use by judges and lawyers. But one should be careful not to allow the use of that expression to distract attention from the need to consider the circumstances of the particular case. The expression is not one, in my opinion, which should be used with a jury, unless a careful explanation of what it means is given. There is a risk that jurors would not understand the expression, unexplained.
I conclude that s 34CB(1) abolishes the duty to warn a jury, along the lines indicated in Crampton, by reference to the adverse impact on the defendant’s ability to defend a charge, attributable to the passage of time. The duty to warn might have arisen solely from the passage of time or from that, in some cases, other particular circumstances of the case. The obligation arose only when the accused was at a forensic disadvantage attributable to the passage of time. The abolition of that obligation leaves open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay. But a trial judge should not use this as a means of resurrecting the Longman warning in another form. It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person.
Section 34CB(2) creates a new affirmative obligation, to be discharged against the background that I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered “a significant forensic disadvantage”. This is a decision for the trial judge.
It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial. Who can say what the accused would have remembered if his memory had not been impaired by illness? But I would accept that a defendant in such a position is at a forensic disadvantage, because the defendant no longer has the benefit of a memory unimpaired by illness. I should add that in this example I am postulating a significant memory impairment. Similarly, after many years have passed it is not difficult to conclude that the normal memory loss that occurs gives rise to a significant forensic disadvantage. Of course, in a particular case there might be no sign of memory loss, or the case might be one in which the accused’s memory is not a relevant matter. The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J. That is, the difficulty of testing the complainant’s evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.
If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
I turn now to the case under consideration.
Over 24 years have passed between the alleged offending and the trial. That is a long time. Mr Cassebohm said that his memory was adversely affected in relation to events that far back, although his evidence indicates that he gave his evidence in reasonable detail. Mr Cassebohm said that he could no longer recall matters of detail, and that he had trouble remembering events in the more distant past. What he said is not suggestive of a greater degree of memory loss or impairment than one would expect after 24 years, but I would accept that after a delay of that length the impairment of memory amounts to a significant forensic disadvantage. In any event, there are additional matters. The loss of the police investigation file from 1986 had two consequences that I consider to amount to significant forensic disadvantage to Mr Cassebohm. He was no longer able to refer to his own interview, which might have refreshed his memory and might have contained details that threw light on aspects of the prosecution case, and also on the reason why no charges were laid. The loss of Ms A’s statement to the police meant that Mr Cassebohm lost the opportunity to test her evidence against her statement. One cannot say that inconsistencies between the statement and the evidence would have emerged, but I consider that the loss of a statement by Ms A, made reasonably close to the time of the events in question, amounts to a forensic disadvantage. It is no answer to say that he is no worse off than he would have been had there been no investigation in 1986. The fact is, he has suffered a particular disadvantage due to the passage of time. Evidence from Ms A’s mother might have thrown light on the circumstances in which Ms A came to be employed by Mr Cassebohm, and the circumstances under which Ms A’s mother agreed to her sleeping at his home, and in relation to the decision not to lay charges. The evidence from the father of Ms A’s friend might have thrown light on the circumstances in which Ms A left Mr Cassebohm’s house for the last time. As to these witnesses, one cannot say that their evidence would in fact have assisted the defence case, but I consider that the inability to question them does give rise to a forensic disadvantage.
Taking these matters in combination, I am satisfied that Mr Cassebohm suffered a significant forensic disadvantage attributable to the passage of time, and that s 34CB(2) applied to this case.
There are a number of aspects of the Judge’s direction that cause me concern. The direction is set out above at [12].
The first sentence is no more than a general reference to the effect of the passage of 20 years on memory. I consider that the Judge should have made specific reference to what Mr Cassebohm said about his memory, and to the possibility of Mr Cassebohm having forgotten matters or details that might assist his defence. The next two sentences refer to the jury being denied an advantage by the passage of time. The relevant disadvantage was that suffered by Mr Cassebohm. In my opinion it was essential for the Judge to refer to the disadvantage suffered by Mr Cassebohm, and also to make the point that access to his statement might have refreshed his memory, or identified details that he could have called in aid of his defence. However, I note that the Judge alluded in general terms to that point in the penultimate sentence. The Judge has said nothing about the disadvantage that the defence suffered as a result of not having access to a reasonably contemporaneous statement by Ms A. That also was a significant matter. There is no reference at all to the death of the two potential witnesses referred to. In my respectful opinion the Judge has not adequately explained the meaning of “forensic disadvantage”. When one considers the passage as a whole, one sees that the Judge has not explained to the jury the nature of the forensic disadvantage, and has not tied his direction adequately to the circumstances of the particular case. I also consider that the direction should have been more emphatic in its terms than it was.
The result of the passage of time was an important aspect of this case, and was an important matter for the defence. I consider that the Judge’s direction was inadequate in that respect and, unfortunately, because of the importance of this aspect of the case, gives rise to a real risk of a miscarriage of justice.
Absence of lies direction
During the cross-examination of Mr Cassebohm the prosecutor put to Mr Cassebohm four or five matters on which his evidence conflicted with what he had said to the police when interviewed in December 2008. The cross-examination was appropriate, as was the manner in which it was conducted. On one or two other topics the prosecutor elicited evidence that conflicted with what Mr Cassebohm had said in the same interview. In her address the prosecutor suggested on three occasions that some of this evidence amounted to Mr Cassebohm trying to distance himself from the events or from contact with Ms A. The prosecutor did not directly suggest that Mr Cassebohm was lying. No criticism can be made of the manner in which she addressed the jury on the topic.
Ms David submits that there was a real danger, given the number of lies, and the importance of the topics, that the jury might have improperly inferred that these lies were evidence of guilt. She submits that the jury should have been warned not to reason from the fact that Mr Cassebohm lied, if he did, to guilt. They should have been told that a lie could reflect only on his credibility.
I disagree. Neither in cross-examination nor in address was any great weight placed on the subject matter on which it was suggested there was an inconsistency on the part of Mr Cassebohm. There is no particular reason to think that the jury would have inferred that any lies (if the jury thought they were lies) were evidence of guilt. The fact that no direction was requested is of some significance. It is pertinent to bear in mind the observations of Gleeson CJ and Hayne J in Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [34] where their Honours said:
[34]It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.
Citations omitted
In my opinion there was no reason why the Judge should have apprehended a real danger that the jury would reason that any lies or inconsistencies were evidence of guilt.
Unsafe verdict
Having reviewed the evidence, I consider that it was open to the jury to be satisfied beyond reasonable doubt that Mr Cassebohm was guilty. The direction on the medical evidence was adequate. However, for reasons that I have already given, in my opinion the Judge did not give the direction required by s 34CB of the Evidence Act 1929 (SA), having regard to the circumstances of the case. In this trial it was important that an adequate direction in relation to the passage of time be given. I consider that the deficiency in the directions in this respect, give rise to a real risk of a miscarriage of justice, and that for that reason the appeal should be allowed. Having regard to my conclusion that it was open to the jury to convict, there should be a re-trial.
Orders
I would allow the appeal. I would set aside the convictions, and would order that there be a re-trial of the counts on the Information with the exception of count 4.
WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.
PEEK J: I agree with the orders proposed by the Chief Justice and with his reasons.