R v GPP - [2001] NSWCCA 493

No judgment structure available for this case.

Reported Decision:
129 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: R v GPP [2001] NSWCCA 493

FILE NUMBER(S): CCA 60135/01

HEARING DATE(S): 26 September 2001

JUDGMENT DATE:
6 December 2001

PARTIES :

Regina v GPP

JUDGMENT OF: Heydon JA at 1; Wood CJ at CL at 122; Carruthers AJ at 123

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/61/0180

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : Mr G E Smith (Crown)
Mr J C Papayanni (Appellant)

SOLICITORS: S E O'Connor (Crown)
Jeffreys & Associates (Appellant)

CATCHWORDS: Criminal Law - Sexual offences - Indecent assault - Attempted rape - Appeal against conviction - Delay in complaint - "Longman" warning - Whether "Longman" warning necessary - Whether delay caused forensic prejudice to accused - Correct form of warning - Discussion of history of warning and relevant case law - Criminal Law - Sexual offences - Indecent assault - Attempted rape - Appeal against conviction - Whether jury verdicts unreasonable, unsafe and unsatisfactory causing miscarriage of justice - Criminal Appeal Act 1912, s 6(1) - Criminal Practice and Procedure - Appeals - Remedies - Dismissal - New Trial - Whether appeal should be dismissed under proviso to s 6(1) of Criminal Appeal Act 1912 - Whether no substantial miscarriage of justice - Whether error so fundamental as to have caused trial to miscarry - Whether conviction inevitable despite error in trial judge's direction - Whether new trial should be ordered - consideration of discretionary factors - Criminal Appeal Act 1912, ss 6(1) and 8

LEGISLATION CITED: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1906 (WA)
Evidence Act 1995 (NSW)

CASES CITED:
R v Aristidis [1999] 2 Qd R 629
R v Arundell [1999] 2 VR 228
Bromley v R (1986) 161 CLR 315
Carr v R (1988) 165 CLR 314
Crampton v R (2000) 75 ALJR 133
Crofts v R (1996) 186 CLR 427
Doggett v R (2001) 75 ALJR 1290
Glennon v R (1994) 119 ALR 706
R v Harvey (Court of Criminal Appeal, 9 April 1998, unreported)
R v Johnston (1998) 45 NSWLR 362
Jones v R (1997) 191 CLR 439
R v K (1997) 68 SASR 405
Kelleher v R (1974) 131 CLR 534
R v Kenny (Court of Criminal Appeal, 29 August 1997, unreported)
Longman v R (1989) 168 CLR 79
M v R (1994) 181 CLR 487
R v Murray (1987) 11 NSWLR 12
Reid v R [1980] AC 343
Robinson v R (1999) 197 CLR 162
R v Roddom [2001] NSWCCA 168
R v Spencer [1987] AC 128
R v Stewart [2001] NSWCCA 260
Singleton v Ffrench (1986) 5 NSWLR 425

DECISION: Appeal allowed; convictions quashed; new trial ordered.

IN THE COURT OF

60135/01

HEYDON JA

WOOD CJ at CL

CARRUTHERS AJ

REGINA v GPP

Criminal Law – Sexual offences – Indecent assault – Attempted rape – Appeal against conviction – Delay in complaint - “Longman” warning – Whether “Longman” warning necessary – Whether delay caused forensic prejudice to accused - Correct form of warning – Discussion of history of warning and relevant case law

Criminal Law – Sexual offences – Indecent assault – Attempted rape – Appeal against conviction – Whether jury verdicts unreasonable, unsafe and unsatisfactory causing miscarriage of justice – Criminal Appeal Act 1912, s 6(1)

Criminal Practice and Procedure – Appeals – Remedies – Dismissal – New Trial - Whether appeal should be dismissed under proviso to s 6(1) of Criminal Appeal Act 1912 - Whether no substantial miscarriage of justice – Whether error so fundamental as to have caused trial to miscarry - Whether conviction inevitable despite error in trial judge’s direction – Whether new trial should be ordered – consideration of discretionary factors - Criminal Appeal Act 1912, ss 6(1) and 8

After a trial before a judge and jury, the appellant was convicted on two counts, one of indecent assault and one of attempted rape. The events in question were said to have occurred in 1979 or 1980 when the complainant was about nine. The complainant said that she had complained of the events to her husband in 1991 and to the police in 1995. The appellant appealed against both his convictions and the respective sentences.

Held by Heydon JA (Wood CJ at CL and Carruthers AJ concurring), allowing the appeal, quashing the convictions and ordering a new trial:

a. The trial judge ought to have mentioned the forensic difficulties that the delay in complaint caused to the appellant, but he did not do so.

“…if delay causes… forensic prejudice to the accused in the particular circumstances…a warning must be given”.

Longman v R

Crampton v R

Doggett v R

Jones v R

R v Johnston

b. In this case, the appellant had been prejudiced by reason of an inability to establish an alibi or some other circumstance capable of raising a reasonable doubt as to the correctness of the victim’s complaint.

c. The content of the trial judge’s warning was inadequate. He mentioned the weaknesses in the complainant’s evidence and the possible impact of delay on recollection. However, he did not warn about the difficulties that delay might have created for the accused in attempting to address the allegations.

Longman v R

Crampton v R

Doggett v R

d. The fact that there was some corroboration of the complainant’s evidence by her sister, did not remedy the deficiency in the directions regarding delay in complaint.

Doggett v R

2. The trial judge did not err in his directions about use of the complainant’s evidence generally.

a. When the trial judge directed the jury carefully to scrutinise the complainant’s evidence, he mentioned that such a direction was given in all cases where the Crown case relied on the evidence of one witness. This did not understate the importance of the direction, but instead demonstrated its universal importance.

R v Roddom

a. The trial judge’s mistake about the time of day/night of the events was a trivial slip. Whether the complainant was mistaken about her age did not affect the merits of the trial judge’s direction.

b. Although the complainant did not say in terms that she thought the appellant was going to penetrate her, there was a passage of the complainant’s evidence which was to that substantive effect. If the jury accepted that evidence, they could have inferred that the appellant intended to have sexual intercourse without consent.

4. The trial judge did not err in his observation on whether the same verdict ought to be brought in on each count.

a. The passage complained of contradicts the theoretical possibility

that the appellant could be believed on one count and not the other. However, the correct theoretical position is stated in the preceding and following passages, and is only a theoretical position. No request for redirection was made at trial.

Zoneff v The Queen

Edwards v The Queen

a. The evidence admitted at the trial could not be said to contain discrepancies, display inadequacies, be tainted or otherwise lack probative force in such a way that it could be concluded on appeal, despite making allowances for the advantages enjoyed by the jury, that there was a significant possibility that an innocent person was convicted.

M v R

b. The Crown case was neither particularly weak nor particularly strong. Although the Crown case alleged events that happened to a young child in the past, of which there was only weak corroboration, there was nothing inherently implausible or self-contradictory in the complainant’s allegations.

a. The proviso can be applied when the error is not so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and the conviction was “inevitable”, so that the appellant has not lost a chance of acquittal fairly open to him.

Glennon v R

b. In this case, the trial judge’s error (failing to properly or adequately direct the jury in respect of the delay in complaint), was not “fundamental” in the necessary sense. However, if the jury had been given the proper warning regarding delay in complaint and its effect on the appellant’s forensic position, they may have experienced a reasonable doubt. Hence, the conviction of the appellant was not “inevitable”.

a. It is likely that a new trial will neither be lengthy nor complex. The appellant has been able to benefit from a technical error in directions by the trial judge, and his counsel at trial did not seek the correct direction. The offences charged are of a serious and prevalent type. The appellant has not served any of the relevant sentences because he has been serving other sentences. There is no possibility of the prosecution supplementing a factually defective case.

O R D E R S

1. The appeal is allowed.

2. The convictions are quashed.

3. A new trial is ordered.

IN THE COURT OF

60135/01

HEYDON JA

WOOD CJ at CL

CARRUTHERS AJ

REGINA v GPP

Judgment

Background

2 This is an appeal against conviction and sentence.

General

3 The Crown case was that the complainant in 1979 or 1980, when she was about nine, lived in a small village named Canbelego. She lived with her family in a house at the edge of the village. The appellant, her father’s brother, was living in the house formerly occupied by her deceased grandparents. One day the complainant and her sisters S1 and S2 were waiting outside the pub for her parents, who were drinking inside it. The appellant asked S1 and S2 to go to the pub to buy a bottle of Coke, and asked the appellant to stay behind. The appellant told her that her grandmother had a doll in the bedroom. They went into the bedroom. The complainant’s evidence in chief continued:

“Q. When you went into that room can you tell us what occurred as soon as you went in?

A. Yes, [GPP] put me on the bed.

Q. Sorry?

A. [GPP] put me on the bed.

Q. How did he put you on the bed?

A. I don’t know.

Q. I’m sorry?

A. I don’t know.

Q. Well somehow you came to be on the bed, do you remember what sort of bed it was?

A. Yes, that was a double bed.

Q. And after you had come to be on the bed what was the next thing that you recall happening?

A. My undies, pants down, my undies.

Q. And how did your undies or your pants come to be pulled down?

A. He pulled them down.

HIS HONOUR: Q. He pulled them down?

A. He pulled them down.

CROWN PROSECUTOR: Q. When you say he, are you talking --

A. Beg your pardon?

Q. Who are you talking about when you say he?

A. [GPP].

Q. And when he --

HIS HONOUR: Q. That’s the accused, [GPP] is the accused, is that right?

A. Yeah.

CROWN PROSECUTOR: Q. When you say he pulled them down are you able to explain to us how that happened?

A. No.

Q. Do you know where he was, that is where [GPP] was, at the time --

A. Yes, in the bedroom.

Q. In the bedroom, whereabouts in the bedroom was he?

A. Near the bed.

Q. I’m sorry.

A. Near the bed.

Q. Near the bed and what happened when he pulled your pants down?

A. Can’t remember.

Q. I’m sorry?

A. Can’t remember.

Q. You can’t remember. After your pants were pulled down were you still on the bed?

A. Yes.

Q. Did anything happen to you after your pants were pulled down?

A. Yes.

Q. Are you able to tell us what it was that happened to you after he pulled your pants down?

A. Yes, he was holding my hands, I’m trying to get away but I couldn’t.

Q. And whereabouts were your hands when they were being held?

A. Above my head.

Q. I’m sorry?

A. Above my head.

Q. Above your head and were your hands together or apart?

A. Can’t remember.

Q. Did anything happen while your hands were being held?

A. Yes, he reached down with his left hand.

Q. And what happened when he reached down with his left hand?

A. Put his finger.

Q. I’m sorry.

A. Put his finger.

Q. Did something happen with his finger?

A. Yes.

Q. And what was that?

A. He’s tried to put his finger inside me.

Q. And when you say he tried to put his finger inside you can you just explain to us exactly what it was that he did?

A. He stuck his finger inside me but not all the way.

Q. I’m sorry.

A. He stuck his finger inside me.

KELLY: Was the last part ‘the whole way’?

CROWN PROSECUTOR: Q. Yes and you said something after that?

HIS HONOUR: I’m sorry, she did add something but I didn’t quite get it.

Q. You said he stuck his finger inside me, you added something to that originally?

(No verbal reply)

CROWN PROSECUTOR: Q. When you answer the question --

A. Yeah.

Q. – you said he stuck his finger inside me --

A. Yeah.

Q. – something the way, do you remember what you just said?

A. No.

Q. When you say he stuck his finger inside you, are you able to tell us whether it went in a lot or a little bit or?

A. It didn’t go in a lot. I was trying to get away.

Q. I’m sorry, you were --

A. I was trying to get away.

HIS HONOUR: Trying to get away. She might have said before.

CROWN PROSECUTOR: Q. How was it that you were trying to get away, what were you doing to try and get away?

A. I was sort of trying to struggle to get away, I couldn’t though.

Q. Did you say anything to him?

A. Yeah, I wanted him to let me go.

Q. Did he say anything to you?

A. Yes, he told me to shut up and be quiet.

Q. You told us what had happened to your clothes, did anything --

A. Beg your pardon?

Q. You told me what happened to your clothes, that your pants were pulled down.

A. Yes.

Q. Did anything happen to [GPP’s] clothing?

A. Yes, he undone his button and fly, pulled his pants down.

Q. Pulled his pants down?

A. Yes.

Q. And when he pulled his pants down – well after he’d pulled his pants down were you able to see his penis?

A. No not really.

Q. What happened after the accused had pulled his pants down?

A. He tried to get between my legs.

Q. You say he tried to get between your legs?

A. He did.

Q. Can you tell us --

HIS HONOUR: She said he did.

WITNESS: A. Just said he did.

CROWN PROSECUTOR: Q. He did. Now when he did that were you still on the bed?

A. Beg your pardon?

Q. When he got between your legs were you still on the bed?

A. Yes.

Q. And when he got between your legs was he also on the bed?

A. Yes, he was holding down.

Q. And when he got between your legs were your pants still down?

A. Yes.

Q. What happened when he got between your legs?

A. He tried to push his penis in but he didn’t … (not transcribable).

Q. When you say he tried to do that what was it that he did that you say he was trying, what was he doing?

A. Can’t remember.

Q. What were you doing when he tried to put his --

A. I was trying to get away.

Q. And when you were trying to get away were you moving or --

A. I was – yes, I was struggling, yes.

Q. When he was trying to put his penis into your vagina was he moving or was he still?

A. Can’t remember.

Q. Did he say anything to you?

A. He was telling me to be quiet, don’t say a word.

Q. And you told us that soon after you went into the bedroom that the accused put his finger into your vagina?

A. Yes.

Q. When he was trying to put his penis into your vagina was his finger still in your vagina?

A. No.

Q. What was he doing with his hands at the time he was trying to put his penis into your vagina?

A. He had hold of my hands with one hand and the other one I don’t know what he done with his hand.

Q. You say he had hold of --

A. Can’t remember.

Q. – your hand with one hand, do you know what he was doing with his other hand?

A. No.

Q. Did you at any stage while he was trying to put his penis into your vagina see his penis?

A. Not really, no I didn’t.

Q. Are you able to say from the position of his body and the position of your body how far his penis was away from your vagina?

A. I couldn’t see.

Q. I’m sorry.

A. I couldn’t see.

Q. You couldn’t see?

HIS HONOUR: Q. Did you feel anything?

A. No.

Q. You didn’t?

A. No.

CROWN PROSECUTOR: Q. When the accused was between your legs where was the upper part of his body, was it --

A. On top of me.

Q. On top of you, now do you know how long it was that the accused was between your legs and on top of you?

A. Not for long cause my sisters come back.

Q. Your sisters came back?

A. Yes.

Q. And what happened when your sisters came back?

A. He let me up and told me to be quiet.

Q. And when he let you up and told you to be quiet what did you do then?

A. I got up and put my undies on and walked back out and went down the pub.

HIS HONOUR: Q. I’m sorry, you got up, what else?

A. I got off the bed, pulled my undies up and went back down the pub.

CROWN PROSECUTOR: Q. Now when you got up and pulled your undies up did you see what the accused did?

A. No I didn’t look, I didn’t take any notice.

Q. When you say you went back down the pub?

A. Yes.

Q. Before you went down the pub you had to walk out of --

A. Yes.

Q. – the bedroom and back out of the house?

A Down through – yeah I went out to the verandah and my --

Q. When you went out to the verandah did you see anybody?

A. I seen my sister, sisters, two sisters.

Q. Did your sisters have anything with them?

A. Yes, a bottle of Coke.

Q. And when you say you went down or back down to the pub did anything happen as you were going?

A. Went back down to the pub and then [GPP] walked out the front and tried to call me back up with his finger but I didn’t go up.

Q. When you say he tried to call you back up with his finger --

A. He sung out to me.

Q. He sung out to you?

A. Yes.

Q. What did he sing out?

A. He sung out [the complainant’s christian name] and called me back up with his finger but I didn’t go back up.”

4 The complainant said she had complained about the appellant’s conduct to her husband in 1991 and to the police in 1995. She adhered to her evidence in chief under cross-examination.

5 The complainant’s sister gave the following evidence about an incident when she was about seven:

“Q. And what occurred on this particular day?

A. We were at Nan and Pop’s and [GPP] sent us down to get a bottle of Coke, me and [S2].

Q. When you were sent down to get a bottle of Coke what happened after that, did you go and get it? Did you go and get the Coke?

A. Yeah, went and got the Coke.

Q. Did something happen on that day in relation to [the complainant]?

A. Yeah, she come running down crying.

Q. At the time she came running down crying do you have any recollection of having seen the accused?

A. Yes, standing out the front of Nan and Pop’s.

Q. When you say he was standing out the front, was he doing anything?

A. Yes, calling her back with his finger.”

6 In cross-examination she adhered to her evidence in chief. She also said that ten years earlier she had asked the complainant whether she had been crying because the appellant had “touched” her, to which the answer was affirmative.

7 The complainant’s ex husband confirmed the complainant’s evidence of complaint to him. Detective Senior Constable Ogilvy gave evidence that after the complainant had given him a statement in 1995, he went to a house in Cobar. The appellant came out of it. Detective Senior Constable Ogilvy’s evidence was:

“I said, ‘I am Detective Ogilvy and this is Detective Garner. I believe you know why we are here. I wish to speak to you at the police station about these things.’ He said, ‘Can I drive down myself?’ I said, ‘Detective Garner can go with you and I will follow.’

At the Cobar Police Station, in the sergeant’s office, I spoke with the accused. I said, ‘… I wish to speak with you about allegations of assaults of a sexual nature made against you. I want you to understand you are not obliged to say anything unless you wish as anything you do say may later be used in evidence, do you understand that?’ He said, ‘Yeah. What is the name of the girl? It’s [the complainant’s christian name].’ I said, ‘[the complainant’s name]?’ He said, ‘Well why does she wait all this time? Why didn’t she do something then? I never did anything with her. I haven’t done anything’.”

8 The appellant gave evidence and denied the complainant’s allegations. Three of the appellant’s sisters said that in the periods in which they had lived in the complainant’s grandparents’ house there never was an occasion on which an adult female was not in the house. The appellant’s brother gave evidence that he could not recall an occasion when the appellant was alone in the house.

Grounds 1 and 2: directions on lack of complaint and use of the complainant’s evidence

The grounds of appeal

9 These grounds were:

1. His Honour erred in law in misdirecting and/or failing to direct adequately or properly the jury in respect of the delay in complaint.

2. His Honour erred in law in misdirecting and/or failing to direct the jury adequately or properly as to the evidence of the complainant.

The appellant’s submissions

10 The appellant submitted that the trial judge did not give a direction in accordance with Longman v R (1989) 168 CLR 79 at 90-1 “in respect of the fact that the means of testing the complainant’s evidence had been lost”.

11 The appellant submitted that the case was similar to R v Roddom [2001] NSWCCA 168. In that case the Court of Criminal Appeal found certain warnings given by the trial judge to have been inadequate. In particular, at [30]-[32] Howie J (with whom Meagher JA and Sully J agreed) pointed out that in Crampton v R (2000) 75 ALJR 133 at [39] Gaudron, Gummow and Callinan JJ had said it followed from Longman v R that it was imperative to give a warning, in appropriate cases, about the effect of delay upon the ability of the accused to test the complainant’s evidence. Howie J said that in relation to one passage in the summing up there was no suggestion that the trial judge had failed to bring to the jury’s attention in a meaningful way the difficulties for the defence caused by the delay. But he said that the trial judge undermined what was there said by referring to the complainant’s reasons for delay. Howie J also criticised the summing up because on each occasion when the trial judge directed the jury to scrutinise the complainant’s evidence with care, the jury was also told that a direction of that type was given in all cases where one person makes an allegation against another. Howie J said at [36]:

“In my view there was a risk in making that comment, or at least in repeating it each time the caution was given, that the jury would minimise the importance of the direction to the particular case before them.”

R v Stewart

12 In the present case the appellant submitted that the trial judge had committed the last-mentioned error by saying: “I propose to give you a direction that is given, in all cases in which the Crown case does in fact rest on the evidence of one witness.” The appellant also submitted that the trial judge had failed to point out in a meaningful way the difficulties which delay in complaint had caused the defence, contrary to R v Johnston (1998) 45 NSWLR 362 at 375.

The trial judge’s summing up

13 The trial judge’s summing up was delivered on 8 December 1998. This was probably before R v Johnston was reported, and it was before Crampton v R and a later relevant case, Doggett v R (2001) 75 ALJR 1290, were decided. Those circumstances may explain the terms of the summing up, but it cannot, of course, prevent the appellant from taking advantage of any error which those terms reveal.

14 The relevant part of the summing up was as follows:

“In relation to the Crown case it really rests, as has been said by the prosecutor and Counsel for the accused on the evidence of one witness, that is complainant. I propose to give you a direction that is given, in all cases in which the Crown case does in fact rest on the evidence of one witness. It is not given to you in this case because she was a child at the time or because it is a woman or because it is a sex case, it is given to all juries in which the Crown case is dependent upon one witness.

The direction is this. Before you can convict the accused on the evidence of the one witness, in this case the complainant … you must carefully scrutinise and evaluate that evidence in the light of the criticism made of it, in regard to each of the separate charges and if after such careful scrutiny and evaluation you are satisfied that the evidence is truthful, reliable and accurate you can then use that evidence as the basis of a conviction on each or either of those charges.

Now what are the criticisms that are made of it. As I understand it, it is and I will be giving you another warning shortly, that the time that has elapsed because of the incident, the fact that no complaint was made, at any time, by the young child, as she then was to her parents or her sisters or any one at all and when you take that, in the light of the evidence that has been led by the accused and his witnesses to show what the situation was there, that you would have grave doubts concerning the Crown case and that you would not be satisfied beyond reasonable doubt. You will remember Counsel for the accused outlining these criticisms and I direct you in relation to those criticisms as I say, that you must carefully scrutinise and evaluate that evidence in the light of the criticisms and if after such careful scrutiny and evaluation you are satisfied that the evidence is truthful, reliable and accurate you can use the evidence as the basis of a conviction on each or any of those charges.

Now evidence has been given in this trial of events that are alleged to have occurred in about 1980, some eighteen years ago when the complainant was some ten years of age, her sister was some years younger than that, she was about seven or eight and everyone was eighteen years younger. Time has made it difficult for witnesses to completely recall circumstances and details. Memories can fluctuate and fade over such a period of time, quite honestly as can be seen in nearly all the witnesses called on behalf of the Crown and the accused. As well as perhaps leave scope for the dishonest, if there be any. These matters may lead to a situation in which the evidence may be unreliable for two reasons. One, the age of some of the witnesses, that is the young children at the time who were eighteen years passed and the other, the sheer period of time that has elapsed. (emphasis added)

Both may contribute, I said, you will not ‘may’ not ‘must’ or ‘do’. You should carefully consider the factors that I have mentioned when assessing the evidence and the witnesses and the weight to be given to the evidence of the various witnesses. Now the Crown says in relation to this period of time that you can look at these various memory lapses by various people, but you must come back to one particular thing, as I understand it, that is did the incident take place. Whilst the young girl might forget how old she was he says, exactly how old she was, or the date that it had taken place, or the time of day or what particular part of the year it was. Did the incident take place. Is that something that she would have forgotten in those circumstances. He said she did not forget and you would accept her evidence that the incident did in fact take place.

Counsel for the accused says to you well those periods of time that have elapsed, the age, plus the evidence that has been given by the witnesses on behalf of the accused as to the inability of the accused to have been at any time, alone in the period the Crown have submitted to you, alone with the complainant would raise a doubt in your mind, a serious doubt and one which would require you to bring back a verdict of not guilty.

These are entirely matters for you. It is a matter for you to take into consideration the effect it has on you, the weight these submissions have on you and the warning has on you, is entirely a matter for you.

Now Counsel for the accused has said to you that the complainant at no stage made any complaint to anyone, be it her parents or anyone else and that is true and this is at the time the incident took place or near the time the incident took place. She does not mention it to her sisters, she does not run down and mention it to her parents. He submits to you that and it is the law that you may take into consideration the fact that no complaint was made as going to her discredit as a witness or her unbelievability as a witness. Because you would have expected her, he says, in these circumstances to have made a complaint to somebody and it was not made.

The law also requires me to tell you that the fact that the complainant does not complain immediately or at all does not necessarily mean that the witness was not telling the truth. There may be a good reason for delay or non-complaint and indeed the complainant here, when asked, advanced a reason. She was asked why she did not tell her father and mother, they had been down the hotel drinking and I was frightened what Dad would do. You might remember she said on that occasion.

Now if you are satisfied in relation to those complaints as I say those are matters that you may take into consideration, however, if you are satisfied in relation to this matter that there was no complaint close to the event, you may take that into account as to a lack of credibility as a witness in those maters, whether you do or not is entirely a matter for you.”

15 So far as those passages were criticised for saying that the direction to scrutinise the complainant’s evidence carefully was given in all cases in which the Crown case rested on the evidence of one witness, the criticism in this particular instance fails. That is because, read in context, the direction does not suggest that it was being given as a matter of mere formality. The terms of the direction in no way minimised its importance. Rather the trial judge succeeded in communicating the importance of the direction by stressing its universality. So far as the submission relied on the passage in R v Roddom at [36] to which reference was made above, the relevant observation, which was made in the course of an ex tempore judgment, appears to have been a dictum only. In any event, with respect, it is not correct. To the contrary, there as here, the type of direction given underlined the importance of its subject matter.

The appellant’s suggested direction

16 In Singleton v Ffrench (1986) 5 NSWLR 425, an appeal relating to a defamation case tried by jury, McHugh JA said at 440 (Samuels JA concurring):

“Counsel for the second defendant did not expressly ask for a direction that the learned judge should direct the jury as to the criteria for determining whether or not the conduct of the defendants was improper or unjustifiable or lacking in bona fides.

If a party is to rely as a ground of appeal on a misdirection in a summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give.”

“PAPAYANNI: … he should have said that the long delay in this case has prevented the accused from having the opportunity of preparing his case properly in that he would have been able to bring witnesses to show if it was on a specific day, or within a short period of time, that he was elsewhere at the time, in the form of an alibi, and that his witnesses, if it had been brought within a short time afterwards, his witnesses’ recollections would have been certain or more certain as to where he was at the particular time, and who was living in the house at the particular time between December 1979 and December 1980, and that although this matter has been held to be not absolutely necessary, that he would have been in the position that he could have brought evidence from his work place in relation to whether he was working, and he could have brought other evidence to show that he was in other places at different times. That is in relation to delay.

Then in the circumstances the Judge should have said, ‘In the circumstances here, having regard to all the evidence, it would be dangerous to convict unless you were convinced beyond reasonable doubt that the complainant was giving evidence – that her evidence was truthful and accurate – and that the defendant and his witnesses’ explanations, if you come to the conclusion that that was a possible version of the situation at the grandfather’s house, and that there was no opportunity during the period of time between December 1979 and December 1980, if it was a reasonable version that no one else was – if it is a possible version that he was never alone during that period of time, [then] you should acquit.’

I would have also dealt with this question of corroboration as not being corroboration. I would have dealt with the situation in relation to the indictment which stated that it was between December 1979 and December 1980, and the complainant’s evidence was that it happened when she was nine years of age or about nine years of age. She was born on 10 May 1969 and therefore if she was nine years of age at the time it was from May 1979 to May 1980, and during that period of time, from December 1979 until May 1980, [C1, C2 and G] were living in the house.

Then I would have referred to the evidence of the complainant on pages 23 and 24 of the transcript to show that during that period of time those persons were living there, [C1, C2 and G] and that the complainant said that there was no other family in the house at the time that this incident occurred.

Then I would have referred also to the fact of the alleged corroboration, that the girl [S1], who was born in April 1971, said in relation to this incident that it happened when she was seven years of age. That would have been April 1971 to April 1978, which was not within the period of time that the complainant alleged that this matter happened.

And that the complainant herself had given evidence at page 23 of the transcript that she had not spoken to anyone else up to 1991 when she spoke to her husband, and that [S1] came forward and said that the complainant had spoken to her ten years after the event, which would in 1988 or 89, complaining in relation to the accused touching her, and her husband had given evidence that the complainant had complained to him in 1991 or about 1991, and that she had told him at that time, that is in the evidence at page 37, that she had not complained to anyone else, which would make [S1’s] evidence a lie.

And then I would go into the evidence of corroboration as to what she said of the incident, that the complainant said that the incident occurred when the accused had called out to her when the three children were at the park, including herself, and asked them to get a coke, that they had gone up there and – this is what the complainant said – and he then asked somebody to get a coke and the other two had gone down to the hotel to get the coke and she stayed, and that is when the incident occurred.

The complainant said that she went out on the verandah after the incident and met the two sisters, [S1] and the other one, and they had a coke, and then she walked down to the hotel with them. [S1] gave evidence that she was in the house, the grandparents’ house, when the accused had asked her to go down to the hotel.

CARRUTHERS AJ: If I could just interrupt, what I was interested to hear from you was, as I said at the outset, what direction or warning you would have asked for in relation to the Longman/Crampton/Doggett line of authorities, and I think you have answered that.

PAPAYANNI: I would have added all the other parts in relation to what was in common experience and so on. In my submission what they were saying in Longman and Doggett and so on was the fact that a class of witness was abolished, the sexual class of witness of a young person was abolished, and you treat the person – the general warning which would be given in relation to a normal situation, without specifying a particular part.

If this had been a normal case in relation to an assault or something of that kind, the situation would be then that if there was one witness against one witness the Judge would say to them, ‘As a matter of common sense’ and would address the jury in that case and say even though the law says that you do not have to have corroboration, to put it shortly, as a matter of fact if one person alleges something against another you would look at the situation and ask yourself whether there is any confirmation to show that that person is telling the truth.”

17 Had the trial judge uttered that farrago, the jury would have been placed in a much worse position than they were by the directions actually given.

The history of Longman directions: the pre-Longman period

18 It is desirable to examine the history of the so-called “Longman” direction which, it is said, ought to have been given in this case.

19 At common law there were certain circumstances in which a warning of the danger of convicting on the evidence of a witness without corroboration was mandatory. One was where accomplice evidence was given. Another was where the witness was a young child. Another was where the witness complained of a sexual offence, at least where the dangers against which the rule was directed existed. If there were indisputable, substantial or ample corroboration, the warning did not have to be given: Kelleher v R (1974) 131 CLR 534 at 541, 546 and 560. The mandatory character of these warnings gradually came to be settled in the course of the 20th century. From about 1970 many jurists and some judges exposed them to much criticism. It was said that the rule, which applied to male victims as well as female, but was generally justified by reference to the latter, who formed and form a much greater proportion of victims than males, was unrealistic in treating the evidence of females as intrinsically unreliable in an absolute, indiscriminate and stereotypical way.

20 The legislation of each Australian jurisdiction responded to this criticism by enacting legislation abrogating the rule.

21 In New South Wales the initial legislation was s 405C(2) of the Crimes Act 1900, introduced in 1981. It provided:

“On the trial of a person for a prescribed sexual offence, the Judge is not required by any rule of law or practice to give, in relation to any offence of which the person is liable to be convicted on the charge for the prescribed sexual offence, a warning to the jury to the effect that it is unsafe to convict a person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed.”

R v Murray

Robinson v R

“Section 405C(2) has brought about the result that women are no longer, in the eyes of the law, to be put before the juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a judge cannot draw attention to the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl’s story, if it were true, nor does it preclude the judge from making such observations as he considers ought to be made about the credibility of the complainant’s evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the women is entirely a matter for the jury. The fact that a judge does not comment upon the absence of corroboration of the complainant’s evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.

There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case.”

Murray

22 In Western Australia the common law was changed by a different type of legislation. Section 36BE(1) of the Evidence Act 1906, which was introduced in 1985 (and was replaced in 1988 by s 50) provided:

“(1) On the trial of a person for a sexual assault offence or an offence under Chapter XXII of The Criminal Code-

(a) the judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and

(b) the judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances.”

Longman v R

23 In Longman v R (1989) 168 CLR 79 the High Court majority (Brennan, Dawson and Toohey JJ) posed the following question at 86:

“Does par. (a) dispense with any requirement to warn when the evidence of an alleged victim of a sexual offence is uncorroborated or only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class?”

“If the warning to which par. (a) is directed is a warning that it is generally unsafe to convict for any sexual offence on the uncorroborated evidence of the alleged victim (or, to put the warning another way, that it is unsafe to convict on the uncorroborated evidence of the alleged victim of the particular sexual offence charged because evidence of that kind has been shown by experience to be especially liable to fabrication), par. (a) does not affect the requirement to warn about other perceptible risks of miscarriage of justice. A warning may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim’s evidence is tendered to prove. Paragraph (a) leaves that situation unaffected.

Furthermore, what par. (a) abolishes is the requirement to give a warning, not a judge’s discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par. (a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim’s evidence in the light of common human experience. By force of par. (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only.”

24 They construed paragraph (b) as follows (at 88-9):

“… unlike par. (a), par. (b) must relate, not so much to a warning of the general unsafety of convicting on the uncorroborated evidence of alleged victims of sexual offences, as to a warning which a trial judge might consider giving on account of the particular circumstances of the case. That is because par. (b) directs the judge to find his justification for giving ‘such a warning … in the circumstances’. If the warning which may be given pursuant to par. (b) cannot be the warning referred to in par. (a), the phrase in par. (b) ‘a warning … of the kind described in paragraph (a)’ must be taken to mean any warning that it is unsafe in the circumstances of the particular case to convict on the uncorroborated evidence of the particular alleged victim.

Construing par. (b) in that way, it prohibits in any case of a sexual offence the giving of any warning that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim unless the judge is satisfied that the particular warning is justified in the circumstances. The judge cannot be so satisfied if there is nothing in the case to require a warning other than the circumstance that proof of the offence rests of the uncorroborated evidence of the alleged victim. So construed, par. (b) first shuts the door on all warnings that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim, and then reopens it to such warnings where the particular circumstances of the case provide a justification. This construction of the section is somewhat artificial, but it is essential to avoid absurdity. If the words ‘of the kind described in paragraph (a)’ were to be construed so that the warnings referred to by the respective paragraphs were the same, par. (a) would comprehend a warning which might be ‘justified in the circumstances’. Such a construction would accord to par. (a) a wider operation than is accorded to that provision in other States and destroy the protection afforded in appropriate cases by the requirement to give a warning unrelated to the suspicion attaching to the evidence of alleged victims of sexual offences.

Paragraph (b) thus comprehends more kinds of warnings than the kind of warning to which par. (a) refers. Although a warning can be given only if the judge is satisfied that the warning is justified in the circumstances – and therefore must not be given unless, on a view of the facts reasonably open to the jury, there is an occasion for giving a warning – justification may be found in any requirement of a rule of law or practice which might apply in the circumstances other than the requirement to which par. (a) refers. If, on a view of the facts reasonably open to the jury, a rule of law or practice requires a warning to be given, not being a warning of the kind to which par. (a) refers, the rule must be followed. The rule is itself justification for giving the warning it requires.”

25 The High Court also said (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.”

Bromley v R

Carr v R

26 The High Court then said that the question which arose before the intermediate appellate court and before the High Court 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.” They then created what is now known as the “Longman” warning in the following words (at 90-91). For ease of analysis the passage has been broken up.

“(A) 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.

(B) 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’.

(C) 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 to be given to them: see R v Spencer

(D) 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 (NSW) [(1989) 168 CLR 23 at 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.”

27 In this passage there is movement from the proposition stated in (A), that it “would not have been surprising” if the identified circumstances had elicited a comment, to the assumption in (B) that a comment was “required”. In (C), it is said that not only a “comment” but also a “warning” was required, and the decisive factor calling for a warning was the accused’s loss of those means of testing the complainant’s allegations which would have been available had there been no delay. The movement from a comment which would not have been surprising to a comment which was obligatory, and the movement from an obligatory comment to an obligatory warning, was described thus by Gaudron, Gummow and Callinan JJ in Crampton v R (2000) 75 ALJR 133 at [39]:

“The passage distinguishes between two different sets of circumstances: those which might well invite, and, we would interpolate, will generally require, comment; and those in respect of which a warning is imperative.”

thus does not itself identify clearly when a warning is mandatory, save by reference to the loss by the accused of the means of testing the complainant’s story, which may not have been apparent to the jury. In the authority cited for that proposition, R v Spencer [1987] AC 128 at 141, Lord Ackner (with whom Lords Hailsham of St Marylebone LC, Bridge of Harwich, Brandon of Oakbrook and Mackay of Clashfern agreed) said of accomplices, victims of sexual crimes and children:

“In the three established categories where the ‘full warning’ is obligatory, the inherent unreliability of the witness may well not be apparent to the jury. Hence the phrase often used in a summing up – it is the experience of the courts accumulated over many years etc. etc. Complainants of sexual assaults do on occasions give false evidence for a variety of reasons, some of which may not have occurred to a jury. Accomplices may have hidden reasons for lying, and this possibility may again not be apparent to a jury. Children who, although old enough to understand the nature of an oath and thus competent to give sworn evidence, may yet be so young that their comprehension of events and of questions put to them, or their own powers of expression, may be imperfect. All this needs properly to be spelt out to the jury. Hence the well established rule of practice.”

29 Deane J appeared to agree with the majority in saying that the responsibility of trial judges to give appropriate directions included the responsibility to give “an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury” (at 95-6). But he also said that the court should not fetter the discretion of trial judges by framing in advance particular categories, “such as where there has been a very long delay before the complainant has made any complaint to the authorities, in which a trial judge must be ‘satisfied’ that the relevant warning or caution is ‘justified’” (at 97). He agreed that the appeal should be allowed not because of the absence of speedy complaint or the difficulty of defending a sexual charge, and not because of the long effluxion of time by itself. Rather, he said (at 100-101):

“The real force of the applicant’s case lies, however, in the combination of: (i) the circumstances of the alleged offences, and (ii) the possible effect, in the context of those circumstances, of the extraordinary lapse of time before complaint and trial. The gravamen of both offences was the alleged placing or pressing by the applicant of his hand on or against the complainant’s genitalia. There was no suggestion of penetration, or violence or of contact with other than the applicant’s hand. One of the alleged offences occurred when the complainant was six. The other when she was ten. On each occasion, the complainant was asleep immediately before the alleged offence. More than twenty years later, her recollection is that, on each occasion, she awoke to find the alleged offence being committed but pretended to remain asleep. She cannot remember whether she went back to sleep after the incident in the truck. After the other incident, the applicant carried her to her bed where she went back to sleep. It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance. The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant’s evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinized with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant’s guilt.”

30 It follows that on Deane J’s approach to the question of whether a Longman warning should be given depends very much on the specific circumstances of each case, and not on generalised factors like absence of speedy complaint by a child about sexual behaviour many years earlier. Further, for Deane J, the difficulty created for the accused by delay was not significant: in this respect the bulk of authority is to the contrary.

31 McHugh J also agreed that the appeal should be allowed. His reasoning was as follows (at 107-108):

In the present case both offences are alleged to have commenced when the complainant was asleep. She testified that on each occasion she pretended to remain asleep. She stated that after the incident in the applicant’s bed she went back to sleep. She could not remember whether she went back to sleep after the incident in the truck. She was about six years old when she alleges that the first offence occurred, and about ten years old when she alleges that the second offence occurred. The complainant did not allege that penetration occurred or was attempted. Both offences were alleged to have occurred more than twenty years before the hearing.

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person’s ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev. ed. (1964), p. 269-270.

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error is recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant’s attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, ‘I don’t hate him but I do hate what he’s done and the problems it’s caused in my life’. However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant’s honest recollection of events concerning the applicant was not distorted by this hatred.

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.”

32 Since many victims of sexual offences who fail to complain speedily and who give evidence many years later were young children at the time of the relevant events, McHugh J’s stress on errors of recollection, even though linked to events happening to a child waking up but pretending to be asleep, as distinct from Deane J’s stress on the risk of fantasy, would appear to open a wider field for Longman warnings. It must be conceded, however, that later cases have treated McHugh J’s reasoning as being the same as that of Deane J.

33 In Crampton v R (2000) 75 ALJR 133 at [42] Gaudron, Gummow and Callinan JJ said that 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.”

34 This Court must accept the reasoning of the majority, which does appear to call for Longman warnings in a wider range of circumstances than those contemplated by either Deane J or McHugh J.

The effect of the Evidence Act

35 The enactment of the Evidence Act 1995 did not affect Longman v R. Section 164(3) abolished whatever was left of the common law requiring a warning relating to victims of sexual crimes and children. Section 165(2) introduced a duty to warn about evidence of a kind which may be unreliable, but only if a party requested this. Section 165(5) provided that s 165 did not affect any other power of trial judges to give a warning to, or to inform, the jury: this preserves Longman v R.

Crofts v R

was referred to in Crofts v R (1996) 186 CLR 427 at 435 and 446, but not in a manner casting significant light on the circumstances in which the warning should be given.

Jones v R

37 In Jones v R (1997) 191 CLR 439, a case decided by the majority on the basis that verdicts of guilty on two counts were unsafe and unsatisfactory because of an acquittal on the third, Brennan CJ, in agreeing with that conclusion, said there should have been a Longman warning in relation to the complainant. She gave evidence four years after one of the alleged events. One issue was whether a woman employed as an assistant by the accused, a gymnasium instructor, went home by train or was driven home after that particular incident by the accused. She said the former was possible but she could not recall. Brennan CJ said that the warning should have been given because of “the difficulty of establishing the defence case after a lapse of four years” on the ground that “the lapse of time precluded her ability to be certain about the subject” (at 446). Kirby J agreed that a warning should have been given, but said the warning actually given was adequate (at 464). The majority (Gaudron, McHugh and Gummow JJ) adopted similar reasoning to that of Brennan CJ (at 454-5).

Crampton v R

38 In Crampton v R (2000) 75 ALJR 133 the accused was charged with indecency in relation to his former primary school children pupils. Complaint was delayed for twenty years. The majority (Gaudron, Gummow and Callinan JJ) held that a Longman warning should have been given. In fact an attempt to give one took place, but it was held not to have gone far enough. In consequence little explicit attention was devoted to what circumstances will cause a Longman warning to be necessary. But one can infer from the terms of the direction which the majority said should have been given what the relevant circumstance in that case was. It was the inability of the accused, by reason of the delay, adequately to test and meet the complainant’s evidence, to locate other witnesses and to recollect precisely what the accused was doing on the occasion in question: “the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitute a significant disadvantage”. Gaudron, Gummow and Callinan JJ thought that the bulk of the key passage in Longman v R appearing in the majority judgment should have been put, together with the:

“considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion” (at [45]).

39 The majority’s statement of the considerations mentioned by Deane and McHugh JJ is in fact much broader than the way those judges put the matter in Longman v R. Since in many cases delay will disadvantage the defence, and since many victims do not complain for a long time and are relying on youthful recollection and their recall may be distorted, the range of cases in which Longman warnings are called for appears to be wide.

40 Hayne J held that a Longman warning should have been given because of the inability of the accused adequately to test the complainant’s evidence.

41 It was not necessary for Gleeson CJ to deal with the Longman point. Kirby J, who agreed with the majority about the Longman point, went into detail about the need for the warning in that case in a manner which is with respect useful, but treated the detail as merely an example of the general risk of injustice to an accused arising from delay (at [130]-[132]):

“The warning required by Longman must be, in the words of the joint reasons in 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.

Twenty years after the alleged offence, the first complainant was an adult whose life’s 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.

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. That idea is contrary to the repeated authority of this 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.”

42 The suggestion in the concluding paragraph that the Longman warning flows from the “law’s long experience” of the perils it guards against is doubtless correct, but stands in contrast to the relative youth of the warning in our law.

Doggett v R

43 In Doggett v R (2001) 75 ALJR 1290 the complainant alleged seven sexual offences against the accused, her stepfather, in the years 1979-1986, during which time she was between 8 and 15 years of age and the accused was between 36 and 43 years of age. Five of the allegations were of indecent dealing and two of attempted rape. The complainant first complained of the alleged incidents shortly after the seventh one, but that complaint was only of “touching”. She said that in 1987 she complained to a school friend, Ms A, of touching and of attempted sexual intercourse; the school friend denied receiving the complaint. In 1990 she made a complaint to her mother of attempted sexual intercourse. In February 1998 she made a statement to the police. In March 1998 she tape recorded a conversation between herself and the accused in the course of which he said things capable of being treated as admissions.

44 The complainant’s mother said that after receiving the complainant’s first complaint, she and her son confronted the accused with it, but she could not remember whether he admitted or denied the allegations, and the son did not say that the accused made any admissions. A little later she put the allegations again, and the accused responded in a way which was capable of being treated as an admission.

45 The accused’s defence was that the complainant was sexually precocious, that the complainant had engaged in sexual banter with him, and that “there were other times when the two engaged in boisterous physical conduct with sexual undertones”. He said the contents of the tape recorded conversation referred to the sexual banter.

46 Gaudron and Callinan JJ set out the contentions of the appellant about why a Longman direction was needed as follows (at [43]-[45]):

“First, there is the fact that the complainant was only eight years old when the first and second offences are alleged to have been committed. Whilst it may be accepted that, of course, in adulthood people may have vivid and clear recollections of events which occurred when they were children, the evidence in this case itself demonstrates the truism that accounts of events remote in time need to be carefully scrutinised. The complainant’s evidence was that the first two offences alleged took place at the residence which her mother, her family, and the appellant were occupying in late 1979 or early 1980 during a period when her mother was in Brisbane for medical treatment. In fact, other material before the court fairly conclusively proved that although her mother was treated in Brisbane in February 1980, the appellant did not move into the family residence until June 1980. In his reasons for judgment, Pincus JA suggested an explanation for the discrepancy, that ‘the appellant looked after the complainant and her brothers, on the occasion in question, some time before moving into the complainant’s mother’s house on a permanent basis’. That suggestion will need further examination. With respect to the third count, the appellant pointed out that its timing was related by the complainant to the occasions of the first two counts and was, it was argued by the appellant, therefore subject to the same criticisms as the first two counts.

The other matters which, the appellant submitted, brought the case within Longman were the young age of the complainant when the offences were alleged to have occurred, the long period that elapsed between the first, subsequent and final ‘complaints’, and the conflict between the complainant and Ms A regarding the making of one of them to her.

The principal challenge to the reasoning of the Court of Appeal, however, was made in a submission that their Honours (wrongly) regarded the availability of corroboration as extinguishing the need for a Longman direction. Although the submission overstates the position that was adopted by the Court of Appeal, Pincus JA did conclude that the nature of the corroboration provided here, the responses in the telephone conversation, made a Longman direction inappropriate. McPherson JA, who agreed with Pincus JA, said in addition that the responses of the appellant during the conversation disclosed an awareness of the events of which the complainant was speaking and an ability to recollect them adequately.”

47 Gaudron and Callinan JJ held that there was an obligation to give a Longman direction, and that the corroborative evidence did not relieve the trial judge of that obligation, for the following reasons (at [47]-[54]:

First, the complainant’s evidence with respect to the circumstances surrounding the first three counts made the point that the complainant’s recollection of some matters was, to say the least, questionable.

Secondly, the suggested explanation for the complainant’s assertions as to the approximate times of the first two offences is not one, with respect, which strikes us as very likely. It was not suggested as an explanation by the trial judge in his summing up on these counts. If it had been, there and then it would probably have drawn attention to the need for a direction of the very kind for which Longman stands.

Thirdly, there was evidence from an apparently independent source, Ms A, categorically denying sworn evidence by the complainant that she had told Ms A some years before that she had been sexually touched by the appellant.

Fourthly, and inevitably, the respondent was obliged to some extent to shift the basis of the prosecution when the discrepancy as to dates with respect to the first two counts, and consequently if less significantly, to the third, emerged.

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, of 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.

This is made clear by the joint judgment (Gaudron, Gummow and Callinan JJ) in Crampton v The Queen:

[They quoted [45], which was summarised and partly quoted in [38] above.]

Sixthly, as we have already indicated, the corroboration was capable of establishing some undefined sexual molestation, probably improper, but not necessarily criminal in the respects alleged in the counts, and therefore not of such a nature as to relieve the trial judge of a duty to direct the jury in terms of Longman as explained in the passage from Crampton set out above.

Seventhly, the approach of the Court of Appeal involved to some extent an inversion of reasoning. The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary. That exercise should more appropriately be carried out in the overall assessment of the case, if and after error has been established, to enable the Court to decide whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied.”

48 Kirby J said that Longman warnings should be given wherever delay caused a serious forensic disadvantage to the accused, and, in the case of long delay, wherever the dangers described by Deane and McHugh JJ in Longman v R existed. He agreed that the need for a warning was not nullified by the existence of corroboration (citing R v Aristidis [1999] 2 Qd R 629 at [11]-[16]). He said the need was not nullified by the fact that the prosecution case was strong or supported by admissions.

49 It follows from the majority opinions in Doggett v R that delay coupled with forensic disadvantage is sufficient to create an obligation to give a Longman warning, and it follows from the majority opinions in Crampton v R together with that of Kirby J in Doggett v R, that delay capable of creating the phenomena described by Deane and McHugh JJ in Longman v R is also sufficient.

50 Gleeson CJ and McHugh dissented in Doggett v R on the ground that the accused’s counsel had not asked for any warning, and that to have done so would have caused the jury to concentrate on the existence of the corroboration in a manner injurious to the accused’s interests. (There is nothing far-fetched about this suggestion: it was for that very reason that counsel asked for the warning not to be given in R v Arundell [1999] 2 VR 228.) Further, Gleeson CJ said that to warn about the lack of safety in convicting on the uncorroborated evidence of the complainant would have been pointless since it was corroborated. McHugh J also said that it was crucial to Longman v R that the jury were being asked to convict on uncorroborated evidence of events twenty or twenty-five years earlier while the complainant, then a young child, was asleep or waking from sleep. The majority statement in Longman v R about the lost forensic opportunities available to the accused had to be read in the light of the general circumstances of the case and in any event were obvious to juries. Crampton v R was in the same category.

51 It is obvious that there are sharp divisions within the High Court about Longman warnings. Whatever the merits of the opinions of Gleeson CJ and McHugh J, they are dissenting opinions.

Longman v R in intermediate appellate courts

52 In this Court there have been decisions holding that a Longman direction should have been given in relation to the difficulty of the accused defending himself and calling evidence: e.g. R v Kenny (Court of Criminal Appeal, 29 August 1997, unreported: nine years before first complaint; the accused and some of his witnesses were cross-examined to suggest that their evidence was not reliable in view of the time that had elapsed, and one potential witness had become unfit to give evidence); R v Harvey (Court of Criminal Appeal, 9 April 1998, unreported: complaint made over five years after the relevant event, and over five years after the accused, who was convicted of sexual offences against the daughter of his de facto wife, left the family). These cases are discussed in R v Johnston (1998) 45 NSWLR 362 at 371-3. In that case it was held that a Longman warning should have been given because the Crown had attacked the reliability of the recollection of various witnesses five and a half years after the event where the first complaint had not been made until then, and though counsel for the accused had raised the difficulties of defending allegations over five years old, the trial judge had not authoritatively reinforced this point. That case in its actual reasoning turns on the Crown tactics in relying on the reliability of defence witnesses because of the lapse of time, and the following statements of general principle by Spigelman CJ (with whom Sully J and Ireland J agreed) correspond with that reasoning (at 375):

83 The written submissions of the appellant were as follows.

84 First, the appellant said:

“His Honour directed on p18 that the intent to rape had to be proved beyond reasonable doubt, but said the real issue was ‘did it occur’ and were they satisfied beyond reasonable doubt that she was telling the truth about what happened on this particular ‘night’. The evidence was that the incident happened in the daytime, in the summertime sometime after her grandparents had both died (December 1979) (p19 of transcript).”

85 Next, the appellant said:

“His Honour had said the complainant was frightened and apparently she thought that he was going to try and penetrate her with his penis. This is transcribed as ‘that he – thought – on p17 of the SU. His Honour said:

‘You may think that in the circumstances the only real inference that you could draw from that was that that was what was going to happen.’

The complainant was born on 10 May 1969 and was 29 years at the date of trial but could not say how old she was in December 1979 but she was about 9 years at the time of the attack which had taken place after December 1979 when both her grandparents had died. She would have been over 10½ years when the incident occurred on the latter version.”

86 The appellant then said:

“The evidence she gave as to the second count was unsatisfactory and showed uncertainty as to what happened. She did not say that ‘she thought he was going to penetrate her with his penis’.

She gave evidence (pp14) ‘he undone his button and fly, pulled his pants down’, she could not really see his penis. She said he tried to push his penis in but he didn’t … (not transcribable) but could not say what he did, whether he was moving or still, she could not see his penis and could not feel anything (pp 15-16). It was by no means the only inference that the appellant intended to have sexual intercourse without consent.”

87 While it is true that the complainant did not say in terms that she thought the appellant was going to penetrate her with his penis, there is one passage of the evidence to which the appellant’s submission does not refer which is to that substantive effect:

“Q, What happened after the accused had pulled his pants down?

A. He tried to get between my legs.

Q. You say he tried to get between your legs?

A. He did.

Q. Can you tell us --

HIS HONOUR: She said he did.

WITNESS: A. Just said he did.

CROWN PROSECUTOR: Q. He did. Now when he did that were you still on the bed?

A. Beg your pardon?

A. When he got between your legs were you still on the bed?

A. Yes.

Q. And when he got between your legs was he also on the bed?

A. Yes, he was holding down.

Q. And when he got between your legs were your pants still down?

A. Yes.”

88 Ground 3(a) should be rejected.

Ground 3(b): same verdict on each count

89 This ground was:

“His Honour erred in law in misdirecting and/or failing to direct the jury as to the following -

(b) the same verdict to be brought in on each count ….”

90 The appellant’s written submissions were:

“On page 11 of the SU His Honour referred to the defence that the incident did not happen and the Crown case that it did. His Honour then said: ‘There is really, you may think, it is a matter for you, no way you could come to different decisions in relation to each of the counts’.

The first count relied upon the evidence of the complainant as to what happened but the second count as well as relying on what happened as related by the complainant, it was necessary to find the intent of the appellant beyond reasonable doubt. On the evidence, the intent was not the only reasonable inference, it, in fact, was speculation or suspicion. His Honour’s remarks were at least misleading and gave strength to draw a wrong conclusion.”

91 The observation of the trial judge which is complained about must be read in the light of the whole passage in which it appears.

“As you have been told there are two counts here, they are separate trials and each is a separate, each count is, in effect, a separate trial. Each count has to be separately considered. The fact in relation to each of those and I will give you the evidence in relation to each individual count briefly. That does not mean that you do not look at the overall evidence in relation to each count, in coming to your decision as to the credibility of the witnesses and that overall relationship and background as to what was taking place. You can look at the whole of the evidence in relation to that. But in relation to what the offence was at the time, then you look at the facts and come to a decision on that, bearing in mind the credibility that has been established or not established concerning the witnesses and what is being said.

In this case the defence and it has been raised by the accused and the Crown case is these events happened, the defence is it did not. There is really, you may think, it is a matter for you, no way you would come to different decisions in relation to each of the accounts. If you accept the credibility of the complainant in relation to what she said happened, then I have not understood Counsel for the accused to suggest to you that the offences would not have been committed. What he says and says very forcibly is it never took place, but you still have to be satisfied in relation to those ingredients and I will come back to them shortly and explain them to you.”

92 It was theoretically open to believe the appellant on one count but not the other. The passage complained of contradicts that possibility. But it is unlikely to have misled the jury in view of the passages preceding and following it, which state the correct theoretical position. However, that position is only a theoretical one. If the jury disbelieved the complainant on digital penetration, it would have been highly unlikely to have believed her on assault with intent to rape, and vice versa. No request for a redirection was made at the trial. The triviality of the present complaint is such that leave should be refused in relation to it.

Ground 3(c): lies

93 This ground was:

“His Honour erred in law in misdirecting and/or failing to direct the jury as to the following -

(c) lies by accused and/or defence witnesses.”

94 The appellant’s submissions were as follows:

“His Honour directed as to lies by the accused and his witnesses on p15 of the Summing Up. His Honour pointed out the onus and that it would still be a matter the Crown ‘have to prove it’ the ‘it’ apparently meaning the ‘onus of proving the case against the accused’.

…

It is not clear, but it appears that when His Honour said that the lies of the accused and/or his witnesses would make it ‘easier’ for them to accept the complaint that this went to a consciousness of guilt and not to the credibility of the witnesses. The onus of proving the evidence of a witness rather than that of the accused to be lies rested on the Crown and if a witness is proved to have lied, it is usual to direct that the credit of that witness is affected rather than affecting the credit of another (opposing) witness.

The direction clearly did not comply with Edwards v The Queen (1993) 178 CLR 193 and was contrary to Zoneff (2000) 74 ALJR 895 where the direction was given warning of following a process of reasoning that just because a person is lying about something, that is evidence of guilt. This would especially be so when it is a witness for the defence that is shown to be lying.

The evidence moreover of the witness does not sustain that the witnesses for the defence were lying (see ground 4).

The direction given did not avoid the risk of the jury embarking on an impermissible line of reason but tended to invite such a line of reasoning (see also R v G J H (2001) CCA 128 (24 April 2001) para 58-66).”

95 The whole of the trial judge’s summing up on lies was as follows:

“Now the Crown have suggested to you that the accused and his witnesses have been telling lies concerning what the situation was concerning his opportunity that he may have had to be alone with the complainant and you will understand his case is, as I understand it, it did not take place and there was never any opportunity for me to be alone with the girl and as I understand all the witnesses that were called, were called to prove that was the situation, that there was, they say, never an opportunity when he would have been alone with the girl. The Crown suggests to you that they are not telling the truth. Well that is a matter for you to decide, people of course can tell lies for a number of reasons one I suppose that would immediately spring to mind is fear of being wrongly convicted, might be one. The Crown still bears the onus of proving the case against the accused and even if you came to the conclusion that the witnesses and the accused were telling lies concerning this situation, then it would still be a matter the Crown have to prove it. It is not a matter of saying they are telling lies, therefore he is guilty. You have still got to be satisfied beyond reasonable doubt that the Crown’s witnesses are telling the truth.

However, if you are satisfied that the accused and/or his witnesses were telling lies, one effect it may have on you is that it would – may make it easier for you to accept the evidence of the complainant as to what she says occurred between them. Whether it does have that effect or not is entirely a matter for you.”

96 The Crown submitted:

“As to lies, para 24 of the appellant’s submissions appear to misconstrue his Honour’s directions, which it is submitted were dealing with ‘credibility lies’, rather than ‘consciousness of guilt lies’. His Honour’s directions at SU 15.4 et seq complied with the direction suggested in para 23 of Zoneff v The Queen (2000) 200 CLR 234, which deals with ‘credibility lies’. The alleged lies were not left to the jury as ‘consciousness of guilt lies’ and his Honour was not required to direct the jury in accordance with Edwards v The Queen (1993) 178 CLR 193.

The direction did not invite the jury to embark on an impermissible line of reasoning. What his Honour said at SU 15.8 was logical and permissible.”

97 Related to this topic is another argument not the subject of a ground of appeal and only briefly put. The argument was that the Crown prosecutor never put to the witnesses that they were biased or were lying. A perusal of the relevant transcript reveals that the witnesses cannot have been in doubt about what the cross-examiner was suggesting.

Ground 4: unreasonable verdicts

98 This ground was:

“The verdicts of the jury were unreasonable and cannot be supported having regard to the evidence and were unsafe and unsatisfactory giving rise to a miscarriage of justice.”

99 The written submissions of the appellant in support of this ground consisted largely of a summary – it cannot be called an analysis – of the evidence of the complainant, her mother, her sister S1, the appellant, the appellant’s brother and three of the appellant’s sisters on the questions of the chronology of occupancy of the grandparents’ house.

100 The appellant’s submissions commenced by saying it was not clear when the offence occurred – while the complaint was nine, between 10 May 1978 and 10 May 1979, which was a period not covered by the indictment – or after her grandparents died in December 1979.

101 It is convenient to deal at this point with a submission to which no ground of appeal relates. It was:

“The jury should have been given a direction that if they found that the complainant relied upon the latter period, then it was open to them to acquit if they were of the opinion, bearing in mind there was no onus on the appellant, … that it was reasonably possible during this period that the appellant was not alone at the grandparents’ house … .”

102 Despite the timing doubt raised by the appellant’s submissions, the evidence is all one way that the alleged offences took place after the grandparents’ death, and that the complainant’s uncertainty about her age related to an inessential detail only.

103 The appellant’s submissions appear to accept that, because they proceeded as follows:

“The occupation of the grandparents’ house appears to be after December 1979 as follows:

(1) [G, C1 and C2] until early May 1980.

(2) [G and C1] and possibly [BH] and family until December 1980. [BJ] also lived there part of the time.

The appellant visited his parents’ house after December 1979 on occasions mostly for 2 nights of a week-end until December 1980 (the end of the period in the indictment) but not on the evidence at any time when there was not a female in the home.

[CS] was mostly in the home from December 1979 to April 30, 1980 whilst she was pregnant, her second child being born on 30 April 1980. Up to that time [G and C1] were in the home.

After that [BH] and her family were in the parents’ house until December 1980 (confirmed by [G]).

[G and C1] were living in the house until at least October 1980 and on [C1’s] evidence until about May 1981.

On the Crown case the complainant and her family moved into the house in December 1980.

There was no evidence to support the fact that no one else was living in the house except the appellant at any time during the period of the indictment. The Crown case relied substantially on the fact that no one else than the appellant was either living there or at home.

The summer in 1979-80 after December [CS] was mostly in the home pregnant, [C1 and G]. The summer in 1980-1 to December, [G] possibly [C] and possibly [BH] and her family were living there. If the incident occurred allegedly after December 1979, the above evidence creates a reasonable doubt that the jury should have entertained and the verdicts for that reason cannot be supported.”

104 This argument rests on a fundamental fallacy. So far as it asks this Court to conclude that, or experience a reasonable doubt about whether, during every minute of daylight from December 1979 until the end of 1980 the grandparents’ house was occupied by an adult other than the appellant, it is asking the court to reach an impossible conclusion in the absence of evidence, for example, that there was a bedridden invalid there at all times. There was no such evidence. The evidence which the appellant’s siblings gave about an adult always being in the house during the relevant period does not support the necessary conclusion. Only BHsaid that she never left the house. No other witness said that. To the extent that a particular witness had left the house, the evidence of that witness that someone else was there ceased to have probative value, because the fact asserted ceased to be within the witness’s personal knowledge from shortly after the moment of departure. The contention advanced by BH that she was “always there” (page 43 line 59) totally lacked credibility. It was contradicted, for example, by her own evidence in chief that she left the house to go shopping with her husband once a fortnight for half a day in Cobar (page 34 lines 14-25).

105 The Crown demonstrated numerous inconsistencies amongst the defence witnesses as to who was living in the house at different times and how often the appellant visited it. In themselves these inconsistencies were not decisive of anything, but they do cast a cloud over the reliability of the defence evidence so far as it essayed the almost impossible task of negating any opportunity for the appellant to commit the crimes or raising a reasonable doubt on that issue. The reliability of that evidence is further undermined when it is read as a whole: while it was open to the jury to accept it, its strongly partisan tone makes it easy to understand why they appear to have rejected it.

106 The Crown case was neither particularly weak nor particularly strong. It alleged events that had happened a long time ago to a young child, in respect of which there was only weak corroboration, and in respect of which there had been long delays in complaint. On the other hand, there was nothing inherently implausible or self-contradictory in the complainant’s allegations. The jury were entitled to treat the delays in complaint, and the manner in which the complaints were eventually made, as not adverse to the complainant’s credibility.

107 In oral address the appellant contended that the complainant had given mistaken evidence about who was living at the grandparents’ house. The submission rests on a misreading of the evidence.

108 The relevant tests for determining whether the verdict resulted in a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 were set out in M v R (1994) 181 CLR 487 at 493-5:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

…

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which is was given, a reasonable doubt experienced by the court is a doubt which a reasonably jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

109 Ground 4 should be rejected.

Proviso in relation to Ground 1

110 The Crown contended that the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied, that is, that the appeal should be dismissed on the ground that “no substantial miscarriage of justice has actually occurred”.

111 The application of the proviso depends on the error not being one which is so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and on the conviction being “inevitable”, so that the appellant can be said not to have lost a chance which was fairly open to him to have been acquitted. See Glennon v R (1994) 119 ALR 706 at 710-712. This error is not fundamental in the sense just described. Attention must therefore be directed to the strength of the Crown case. The Crown submitted that it was high. The victim’s story was inherently credible and coherent. Her failure to complain until she complained to her husband was understandable. The fact that she complained to him when she did was understandable. There was some evidence confirming the complainant’s evidence, though not strongly. Though the defence called witnesses, their performance may have strengthened the Crown case partly because they were seen to be trying too hard and partly because they contradicted each other.

112 The appellant’s submission that the Crown case was weak is baseless. But once it is assumed, as it must be, that the prejudicial effect of delay on the forensic position of the appellant was not obvious to the jury, unless it had been explained to them, the warning which was not given could have caused them to experience a reasonable doubt.

113 Hence the proviso cannot be applied.

Ground 5: sentence

114 This ground was:

“The sentences were excessive in that -

(a) His Honour did not take into account the previous record of the applicant.

(b) Did not apply the principle of totality correctly.”

115 It is not necessary to decide this ground in view of the appellant’s success on Ground 1, but the arguments advanced should be considered. On 25 September 2001 the appellant filed the following written submission:

“His Honour on the proceedings on sentence on 23/2/2001 (p2) was told by the Crown Prosecutor that the penalty for the ‘rape charge’ was twenty years and in respect of the indecent assault, his Honour concluded it was 4 years but under 16 years 6 years.

The latter offence was not charged in respect of a female under 16 years and the penalty accordingly was 4 years. If the charge had averred “a female under 16 years’ and given her age, the penalty would be 6 years (see Section 76 copy attached).

The charge under Section 65 (copy attached) carried a penalty of 14 years penal servitude at the time NOT 20 years. His Honour accordingly sentenced the applicant on the wrong basis.”

116 Let it be assumed that the sentencing judge had in mind incorrect maxima on each charge. The question remains whether the sentences actually given conform with principle. The submissions of the appellant on whether they conform with principle were:

“At the time these offences were committed the applicant was 20 years of age and had no convictions. The applicant at the time of trial on 7/12/98 was 39 years and at the time of sentence on 23 February 2001, 41 years.

The applicant for the other matters was sentenced on a totality basis in respect of the charges in the 4 trials and the sentence of 8 years was imposed on the offence of having sexual intercourse with BLY she being under 16 years c.c. 8 years when the applicant forced her to suck his penis. The application of the principles of totality if the applicant had been dealt with at the same time as the other matters would have justified concurrent sentences for these offences. The head sentences of 8 years + 5 years a total of 13 years on a totality basis appears excessive when there it is not certain that the applicant will be released in 2006 at the end of his non parole period.”

117 The fact that the appellant had no convictions at the time the offences were committed does not alter the fact that the offences were serious. They were committed on a young child in circumstances where the appellant had considerable power over her. They were capable of causing her harm in later life, and the evidence of the complainant’s ex-husband appears to indicate that to some degree they have caused her harm. There is nothing in the duration of the sentences in themselves to suggest that they are outside a range fairly open to the sentencing judge.

118 It seems that the sentences now being served by the appellant related to his conduct in relation to a child who in relation to two convictions was eight years old and in relation to a further conviction was about fifteen. The first conviction related to forced fellatio, the second to indecent assault, and the last to indecent assault and attempted rape. In relation to the first conviction the appellant was sentenced to eight years’ imprisonment. Lesser sentences were given in relation to the other convictions, and they were ordered to be served concurrently with the eight year sentence. The submission of the appellant that the two sentences under consideration in the current appeal would have been made concurrent with the eight year sentence had all matters been dealt with at the same time is rejected. The victims were different. The times when the crimes were committed were different. The places where they were committed were different. The criminality appears entirely distinct. Even taking into account the principle of totality, the total sentences are not excessive in the light of the nature of the appellant’s various crimes. Hence, were it necessary to consider the merits of Ground 5, it should be rejected.

New trial?

119 The result is that the appellant succeeds in relation to Ground 1 but fails on the other grounds. Normally success in relation to a ground like Ground 1 would result in an order for a new trial. Should that order be made in this case, or should the appellant be acquitted?

120 This is a very old case. There was a lengthy delay between the time of the alleged commission of the offences and the time of the first trial. There has in turn been considerable delay between the time of the trial in 1998 and now. There would be further delay if the appellant was required to stand trial again. While the first trial was short and a second trial is likely to be equally short, a second trial will be “an ordeal for the defendant which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so.”: Reid v R [1980] AC 343 at 350 per Lord Diplock. The Crown case is not weak, but it is not so strong that a properly directed jury would inevitably convict or would even be very likely to convict. On the other hand, the appellant has been fortunate in being able to take advantage of a technical error by the trial judge, into which he was led by the failure of his own counsel to seek the correct direction, perhaps for tactical reasons. The offences charged are serious, and their prevalence appears to be widespread. The trial was not prolonged or complex. The appellant has not served any part of the sentence because of the other sentences he is serving. He will not be released for some years. The admissible evidence given at the trial was sufficiently cogent to justify a conviction, and the circumstances do not raise any question of whether the order for a new trial will give the prosecution an opportunity to supplement what was at the first trial a factually defective case: the case was not factually defective. In all the circumstances the court’s discretion under s 8 of the Criminal Appeal Act 1912 should be exercised in favour of ordering a new trial.

Orders

121 The following orders are proposed.

1. The appeal is allowed.

2. The convictions are quashed.

I have had the advantage of reading in draft the reasons for judgment of Heydon JA. I agree with his reasons and the orders he proposes.

In this matter I have had the advantage of reading the judgment of Heydon JA, in draft form. I agree with the orders which his Honour proposes and his reasons therefor.

*************

Citations

R v GPP [2001] NSWCCA 493

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CITATION:	R v GPP [2001] NSWCCA 493
FILE NUMBER(S):	CCA 60135/01
HEARING DATE(S):	26 September 2001
JUDGMENT DATE:	6 December 2001
PARTIES :	Regina v GPP
JUDGMENT OF:	Heydon JA at 1; Wood CJ at CL at 122; Carruthers AJ at 123

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/61/0180
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL :	Mr G E Smith (Crown) Mr J C Papayanni (Appellant)
SOLICITORS:	S E O'Connor (Crown) Jeffreys & Associates (Appellant)
CATCHWORDS:	Criminal Law - Sexual offences - Indecent assault - Attempted rape - Appeal against conviction - Delay in complaint - "Longman" warning - Whether "Longman" warning necessary - Whether delay caused forensic prejudice to accused - Correct form of warning - Discussion of history of warning and relevant case law - Criminal Law - Sexual offences - Indecent assault - Attempted rape - Appeal against conviction - Whether jury verdicts unreasonable, unsafe and unsatisfactory causing miscarriage of justice - Criminal Appeal Act 1912, s 6(1) - Criminal Practice and Procedure - Appeals - Remedies - Dismissal - New Trial - Whether appeal should be dismissed under proviso to s 6(1) of Criminal Appeal Act 1912 - Whether no substantial miscarriage of justice - Whether error so fundamental as to have caused trial to miscarry - Whether conviction inevitable despite error in trial judge's direction - Whether new trial should be ordered - consideration of discretionary factors - Criminal Appeal Act 1912, ss 6(1) and 8
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1906 (WA) Evidence Act 1995 (NSW)
CASES CITED:	R v Aristidis [1999] 2 Qd R 629 R v Arundell [1999] 2 VR 228 Bromley v R (1986) 161 CLR 315 Carr v R (1988) 165 CLR 314 Crampton v R (2000) 75 ALJR 133 Crofts v R (1996) 186 CLR 427 Doggett v R (2001) 75 ALJR 1290 Glennon v R (1994) 119 ALR 706 R v Harvey (Court of Criminal Appeal, 9 April 1998, unreported) R v Johnston (1998) 45 NSWLR 362 Jones v R (1997) 191 CLR 439 R v K (1997) 68 SASR 405 Kelleher v R (1974) 131 CLR 534 R v Kenny (Court of Criminal Appeal, 29 August 1997, unreported) Longman v R (1989) 168 CLR 79 M v R (1994) 181 CLR 487 R v Murray (1987) 11 NSWLR 12 Reid v R [1980] AC 343 Robinson v R (1999) 197 CLR 162 R v Roddom [2001] NSWCCA 168 R v Spencer [1987] AC 128 R v Stewart [2001] NSWCCA 260 Singleton v Ffrench (1986) 5 NSWLR 425
DECISION:	Appeal allowed; convictions quashed; new trial ordered.