R v Gray - [2004] SASC 218

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRAY
Reasons for Ruling of The Honourable Justice Nyland
29 July 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for extension of time within which to appeal against sentence - delay due to difficulty in obtaining opinion identifying grounds of appeal and delay in obtaining legal aid - whether appropriate to extend time and grant leave - applicable test for leave where there is a long delay in filing of application - arguable test no longer applies - extension of time granted.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION
Application for leave to appeal against conviction - whether the trial judge's directions to the jury provide grounds for apprehending that a miscarriage of justice has occurred - leave to appeal granted.
Criminal Law Consolidation Act 1935 ss 352, 357(1) and 357(2); Supreme Court Criminal Appeal Rules s 4A(1), referred to.
Longman v The Queen (1999) 168 CLR; R v BFB [2003] SASC 411 (18 December 2003); R v RWB [2003] SASC 420 (18 December 2003); R v Foster (1996) 187 LSJS 135; Bartle (1991) 57 A Crim R 51; R v Brown [1963] SASR 190; R v Balchin (1974) 9 SASR 64; R v Armstrong (1963) 35 SASR 356; R v Trotter [1979] 22 SASR 64; Jackamarra v Krakouer [1998] 195 CLR 516; Crampton v The Queen (2000) 206 CLR 181; R v Nieterink (1999) 76 SASR 56, applied.
Gikas v Police (1999) 202 LSJS 301, discussed.
R v Butler (1989) 44 A Crim R 215, considered.

R v GRAY
[2004] SASC 218
Application for leave to appeal:

NYLAND J: This is an application for an extension of time within which to appeal against conviction. The application for extension of time was heard at the same time as the application for leave to appeal.
The applicant was charged on information with one count of rape and five counts of unlawful sexual intercourse. On 2 July 2003, the applicant was found guilty by verdict of the jury of five of the charges against him. He was found guilty of the alternative offence of indecent assault on the remaining charge. On 14 August 2003, the applicant was sentenced to 13 years imprisonment with a non-parole period of eight years. On 23 December 2003, the applicant signed a notice to appeal against conviction which was filed on 6 January 2004.
The application for leave was instituted pursuant to s 352 of the Criminal Law Consolidation Act 1935 (CLCA). Pursuant to that provision, a convicted person has an appeal of right on any question of law but must apply for leave to appeal on any other question.
Section 357(1) provides that an application for leave made under the Act must be in accordance with the Supreme Court Rules. Rule 4A(1) of the Supreme Court Criminal Appeal Rules (SCCAR) provides that a notice of appeal or application for leave must be filed with the registrar of the court within 21 days of the conviction. As the verdict in this case was returned on 2 July 2003, the present application is out of time by approximately six months.
Explanation for Delay:
The applicant swore an affidavit on 30 January 2004 in which he said that he had informed his solicitor immediately following his conviction that he wished to lodge an appeal. He was advised that it would first be necessary to identify arguable grounds of appeal and that an assertion that he was not guilty was insufficient. The applicant instructed his solicitor to use his best endeavours to find meritorious grounds of appeal and to prepare and lodge the necessary documents with respect thereto. He understood that his solicitor thereafter acted on those instructions which had remained unchanged.
The applicant’s solicitor, who was also his counsel at the trial, provided two affidavits in support of the application for extension of time. He said that on 15 July 2003, he made a request for a copy of the judge’s summing up. In the meantime he forwarded copies of the transcript of the trial to senior/junior counsel requesting an opinion in relation to the proposed appeal.
On 22 July 2003, the solicitor provided counsel with a copy of the judge’s summing up and further documents relating to the proposed appeal. Prior to the applicant being sentenced on 14 August 2003, a preliminary opinion was received that counsel was unable to identify a ground of appeal. That counsel, however, became involved in other matters and was unable to provide a fully considered written opinion. After some difficulty, advice was obtained from different counsel who, on 9 October 2003, provided an opinion that the conviction was appealable and identified grounds to be included in the proposed application.
Due to financial constraints, however, the applicant’s family was obliged to apply to the Legal Services Commission for funding for counsel to argue the appeal. Legal Services Commission funding was eventually granted on 15 December 2003, following which the amended notice of appeal was signed by the applicant and later filed at court.
The proposed notice of appeal includes a number of grounds but essentially complains of the failure by the trial judge to give what is generally referred to as a Longman[1] warning. The requirement of a Longman warning was the subject of judgments of the Court of Criminal Appeal in R v BFB[2]; and R v RWB[3]. In each of those cases the appeals were allowed on 31 October 2003 and 27 October 2003 respectively, but the reasons for judgment were not handed down until 18 December 2003. In both cases, orders were made for a re-trial primarily due to the failure to give an adequate Longman warning.
[1] Longman v The Queen (1999) 168 CLR 79
[2] [2003] SASC 411 (18 December 2003)
[3] [2003] SASC 420 (18 December 2003)
Mr Schapel, who appeared as counsel for the applicant on the present hearing, said that those two decisions had assisted counsel in this case to identify proposed grounds of appeal which had not been evident before the publication of the reasons. As it happened, BFB was also a case in which there had been a delay in filing the application for leave. In that case, it was a period of about nine months. The delay in BFB was, to a large extent, due to a lack of diligence on the part of the solicitor involved.
Extension of time principles:
Section 357(2) of the CLCA provides that the court may grant an extension of time for an appeal to be lodged even after the time for filing has expired. The exercise of this power is discretionary and the applicant carries the onus of explaining the delay in bringing forward material that would justify the court in exercising the discretion in his favour: R v Foster[4] at 138; Bartle[5] at 53. Lander J pointed out in Foster at 139, that the court must, for the orderly disposition of its own business, and generally for the administration of justice, require parties to comply with time limits in seeking leave to appeal. He went on to say:
“However, if those time limits are imposed strictly, an injustice may be visited upon an applicant if the failure to comply with those time limits is the fault of another person. It could constitute a grave injustice to the applicant if his or her right to pursue an application for leave to appeal was lost by reason of the delay of the applicant’s legal practitioner.”
[4] (1996) 187 LSJS 135
[5] (1991) 57 A Crim R 51
Lander J adverted to the difficulty in formulating with exactitude the appropriate test that ought to be adopted in circumstances where an applicant is often incarcerated but commented that in a situation in which the delay is relatively slight, and is reasonably explained, the court will ordinarily extend time for appeal or time within which leave to appeal may be sought, provided there is a question which justifies serious consideration. He went on to say (at 139):
“In R v Brown [1963] SASR 190 at 191, Napier CJ, Millhouse and Hogarth JJ said in relation to applications for leave to appeal where the time within which to appeal or apply for leave to appeal was ten days:
‘The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively, slight, say for a few days or even a week or two, the Court will readily extend the time, provided that there is a question which justifies serious consideration. But, whilst that is so, appellants are expected to act properly, and, in particular, the Court does not countenance the appeal being held over, whilst counsel is obtaining a shorthand note of the summing-up and going over it with a toothcomb. Where the accused is represented by counsel the Court takes the view that, “if counsel has a genuine grievance regarding a summing-up he knows substantially what it is as soon as the summing-up is finished”. It follows that where the delay is substantial an application to extend the time is by no means a matter of course. It is not sufficient that there would have been a question calling for serious consideration, if the appeal had been instituted in due time. When the time prescribed by the Act has expired, the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal.’
Where the delay is significant, an applicant must give a proper and detailed explanation for the delay. However, the court will usually not extend the time within which to appeal or the time within which an application for leave to appeal may be brought unless the applicant can establish that the delay itself was caused through exceptional circumstances or some untoward vicissitude of life which prevented the applicant from applying his or her mind to the question of appeal, or if the delay was otherwise caused, that on the merits the appeal would be likely to succeed (R v Balchin (1974) 9 SASR 64 at 65; Reg v Armstrong (1963) 35 SASR 356 at 367).
To put it another way, the court will ordinarily need to be persuaded, where the delay is significant, that there exists, by refusing to extend time, an apprehension that a miscarriage of justice might occur (R v Balchin at 65; R v Trotter [1979] 22 SASR 64 at 65).”
In Foster the explanation for the delay included an inability, despite repeated attempts, to obtain the sentencing submissions or remarks, and a delay on the part of the Legal Services Commission. As to this aspect of the matter, Lander J said (at 140):
“In this application, it is said that the delay was due, at least in part, to the delay in obtaining legal aid. In R v Butler (1989) 44 A Crim R 215, the applicant for leave to appeal had been sentenced to three years imprisonment for a drug offence and twelve months imprisonment for breach of two earlier probation orders in respect of property offences. These sentences were to be served concurrently. An application for an extension of time within which to apply for leave to appeal was filed on 2 August 1989, some seven weeks out of time. The application to the Criminal Court of Appeal in Western Australia for an extension of time was made on the following grounds:
‘1.That a Legal Aid Assignment was applied for by letter dated 31st May 1989 to the Legal Aid Commission which required time to process.
2.By letter dated 2nd June 1989 the Legal Aid Commission required a copy of the transcript of sentencing which was not forthcoming until the 27th June 1989. Additionally, the grounds of appeal could not be settled until that transcript was made available.
3.Legal Aid was granted for the applicant to appeal on the 11th July 1989.’”
In granting leave, Lander J referred to the fact that the application was “only” one month out of time and commented (at 143):
“This factor has some bearing in that it has been accepted in the authorities that the longer the delay, the more exceptional or substantial must be the reasons to explain it.”
Lander J re-visited this issue in Gikas v Police[6] and said (at 306):
“In summary, any application for an extension of time within which to appeal must be supported by an explanation for the failure to comply with the time limits prescribed by the statute or any Rules of Court regulating the time limit. When the delay is very short and there is no obvious prejudice to any party the explanation need not be in great detail. Where the delay is lengthy or prejudice may be suffered by some other party then there is an obligation on the party seeking the extension of time to give a detailed explanation for the party's failure to comply with the prescribed time limit.
Where a party is not able to proffer a satisfactory explanation for failing to observe a time limit, or where another party might suffer prejudice by reason of the delay, an extension of time will only be granted if the party seeking the extension of time can point to the real possibility that a miscarriage of justice might occur by the failure to extend time.”
[6] (1999) 202 LSJS 301
Mr Hinton, who appeared for the respondent on the hearing of the present application, submitted however that to the extent that Lander J’s approach indicated that a party only needed to establish a real possibility that a miscarriage of justice might occur where the delay was substantial, it was inconsistent with authority in this State. He submitted that where the right to appeal is lost due to non-compliance with the time within which to institute the appeal, and non-compliance is not due to some “exceptional circumstance or untoward vicissitude”[7]) that has prevented compliance, it must be shown that there are grounds for apprehending that a miscarriage of justice has occurred, or substantial grounds on the merits, or a question that justifies serious consideration irrespective of the length of delay: R v Brown[8] (per the court at 191); R v Balchin (supra at 65-6); R v Trotter[9] at 65; R v Armstrong[10].
[7] R v Balchin (1974) 9 SASR 64
[8] [1963] SASR 190
[9] (1979) 22 SASR 64
[10] [1983] 35 SASR 356
Mr Hinton also referred to Jackamarra v Krakouer[11] in which Brennan CJ and McHugh J in a joint judgment (at 521) said:
“Cases such as Palata (Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946) are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant’s right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.”
[11] [1998] 195 CLR 516
In their joint judgment, Gummow and Hayne JJ (at 531) referred to the necessity that it be demonstrated that the argument on appeal might succeed.
Having considered these authorities I consider that the submission put by Mr Hinton is correct, that is, that when an appeal is instituted pursuant to s 352(1)(a)(ii) CLCA out of time, the reasonably arguable test no longer applies. The right of appeal having been lost, the question whether or not leave to appeal should be granted is subsumed in the principles to be applied in determining whether or not an extension of time in which to seek leave to appeal should be granted. As Mr Hinton pointed out, in his written outline, this was necessarily so because:
“(a)the principles to be applied in determining whether or not an extension of time should be granted include determining whether or not the grounds of appeal have some prospects of success in that they disclose reason for apprehending that a miscarriage of justice might occur in the event that time is not extended. This test imposed a higher threshold than the test applied on the hearing of an application for leave to appeal made within time, and
(b)it would be anomalous to apply different principles depending upon whether the application for an extension of time is made under s 352(1)(a)(i) or 352(1)(a)(ii).”
In my opinion, therefore, the proper approach with respect to an application for an extension of time in which to appeal, absent exceptional circumstances, is for the court to consider the grounds and determine whether they disclose reason for apprehending that a miscarriage of justice has occurred, substantial grounds on the merits, or a question that justifies serious consideration, irrespective of the length of the delay.
Should an extension of time be granted in this case?
In this case, the delay is not of the applicant’s making in the sense that following his conviction he sat back and did nothing. He was a person serving a custodial sentence and was dependent upon his solicitors to take the necessary steps on his part and his solicitor’s difficulty in obtaining the services of counsel can be understood. That must, however, be viewed in light of the comments of the Full Court in R v Brown (supra at 191) that:
“The court does not countenance the appeal being held over, whilst counsel is obtaining a shorthand note of the summing up and going over it with a tooth comb. Where the accused is represented by counsel the Court takes the view that, ‘if counsel has a genuine grievance regarding a summing up he knows substantially what it is as soon as the summing up is finished’. (R v Wyman (1918) 13 Cr App R 163 at 165; R v Cairns (1927) 20 Cr App R 44.”
Although there was a further delay as a result of the need to obtain legal assistance, Malcolm CJ (with whom Seaman J agreed) in R v Butler[12] said (at 216-7), “this Court has repeatedly made it clear that it is the duty of the solicitor representing a person who wishes to apply for leave to appeal to file a notice of appeal application for leave to appeal within the time prescribed pending the determination of the legal aid application”. Although in this case, counsel’s initial advice was that the applicant did not have any grounds upon which to appeal against his conviction, and apparently it was not until the court delivered judgment in BFB and RWB that the advice changed, I do not consider that is a delay which can be regarded as due to any exceptional circumstance.
[12] (1989) 44 A Crim R 215
Accordingly, in deciding whether an extension of time should be granted to the applicant within which to appeal, it is necessary to consider the proposed grounds and determine whether they disclose a reason for apprehending that a miscarriage of justice has occurred.
Background:
Before considering the matters set out in the amended grounds of appeal, it is necessary to have some regard to the history of the matter. The applicant was charged with five counts of unlawful sexual intercourse and one count of rape. He was found not guilty of one count of unlawful sexual intercourse but convicted of the alternative offence of indecent assault. He was found guilty with respect to the remaining charges. The dates on the information relating to those charges cover the period between about 1 February 1999 and 21 June 2002. In addition to the charged counts there were a number of uncharged acts alleged but not particularised.
The complainant L was born in March 1992. The applicant commenced a de facto relationship with L’s mother in about May 1998. On 12 June 2002 the applicant moved out of the house occupied by L and thereafter there was no further opportunity for contact between the applicant and L. On 7 July 2002, L went to live with her father in Adelaide. On an unspecified date after she moved into her father’s home, L made the first complaint to her stepmother. In August 2002, L was interviewed by the police. On 10 September 2002, L was examined by Dr Woodard-Knight. On 26 September, the applicant was arrested.

The first count related to an offence alleged to have occurred between 1 February 1999 and 30 April 1999 when L was about seven. It was alleged to have occurred at Whyalla and consisted of digital penetration of the vagina one morning while she was watching television in the lounge. It was said to have happened before the applicant and L’s mother were married in November of that year. There was no specificity concerning the date or the day of the week, but L said in evidence that both her mother and her older sister M, who was 16 at the time of the trial were in the house when this was said to have occurred. Both were still in bed in the morning.
Count 2 on the information is a charge of rape. This is out of chronological order as it is alleged to have occurred after Count 3. It alleges an act of fellatio which was said to have occurred in the month of December 2000 at Kimba. It related to an occasion when L said the applicant tied her hands with rope and covered her eyes with a teatowel. It was said to have occurred when the applicant was making rope things for his trailer and it happened in the lounge room of the premises at Kimba not long after tea time.
Count 3 was alleged to have occurred between 1 June and 9 August 1999, the latter date being that on which the applicant had rented premises at Kimba for the first time. It was said to have occurred at the rear of a mobile roadhouse at Kimba before they moved in the Railway Terrace residence. It was L’s recollection that when her mother came into the bedroom the applicant pretended he was reading a book, although both the applicant and his wife said that the applicant never read to L. L said that he rubbed her private part with his “willy”. Her mother was asleep on the lounge and the whole thing was interrupted when her mother knocked on the door.
Count 4 was alleged to have occurred on 26 March 2002 and alleged that the applicant had placed his penis into L’s vagina on an occasion when her mother was absent, taking a person called Donald Jongboer back to Whyalla. This was the matter on which the jury found the applicant guilty of the alternative crime of indecent assault.
Count 5 was alleged to have occurred about a month before L left to go to Adelaide with her father for the Easter holidays. It was alleged that the applicant had placed his penis into her vagina. L claimed that she had bled from the vagina for about three days, although her mother did not see any blood on her clothes or elsewhere, nor was any bloodstained clothing produced in evidence, which might have supported her story.
Dr Woodard-Knight gave evidence that if it was accepted that bleeding for three days had occurred, that would be consistent with the injury to the hymen having been caused on that occasion.
Count 6 was alleged to have occurred about three days before the applicant moved out on 21 June 2002 and related to an occasion when L’s mother went to fire drill. It consisted of the applicant placing his penis into L’s vagina.
In addition, evidence was given as to a number of uncharged acts which involved the applicant putting his finger into L’s vagina, rubbing his penis around her private parts, putting Sorbolene cream on his penis and putting it in her private parts and having vaginal sexual intercourse with her. On one occasion she said he put jam on his penis. She also referred to an occasion on which he had ejaculated. She also described a number of instances involving the toilet at one of the residences where she had been required to sit on his lap so that she was facing him and he would have sexual intercourse with her on those occasions.
Grounds of Appeal:
The first proposed ground of appeal complains of the failure of the trial judge to give a traditional Longman warning that it would be unsafe or dangerous to convict on the uncorroborated evidence of L[13]. The second proposed ground raises the question of delay which is also adverted to in Longman (supra) as well as in Cramptonv The Queen[14]. These two grounds can be considered together.
[13] See Longman v The Queen (supra) at 86
[14] (2000) 206 CLR 181
Although counsel at the trial did not ask the judge to give a Longman warning, Mr Schapel submitted that this was a case in which there was such a need. L was between seven and ten at the time of the alleged offending and 11 at the date of the trial. The forensic disadvantage to the applicant was significant and included difficulty in answering the medical evidence. The first three counts on the information were old and were not particularised. The delay also affected the applicant’s ability to answer the allegations which included an extensive number of uncharged acts. The judge directed the jury to “carefully scrutinise the evidence of [L] before accepting it, if you are minded to do so, as sufficient proof on any count”, and went on to refer to her age at the time of the alleged offences and at trial but did not couch that direction in the terms of a warning nor refer to any forensic disadvantage to the appellant.
The issue of a Longman warning was discussed by the Court of Criminal Appeal in BFB. Doyle CJ said (at [34-39]):
“In Longman v The Queen (1999) 168 CLR 79 the High Court reminded trial judges that a warning must be given to a jury ‘whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case’: at 86 per Brennan, Dawson and Toohey JJ. In that case it was held that the circumstances called for a warning.
Since then a number of cases have come before the High Court in which the Justices of the Court have had occasion to consider, in the context of sexual offences, when it would be sufficient for a trial judge to merely comment on, or bring the attention of the jury to, an aspect of a case that calls for some caution, and when it will be necessary to warn the jury that it would be dangerous or unsafe to convict on the evidence of the victim alone, unless the jury, scrutinising the evidence with great care, and considering the relevant circumstances and the warning, were satisfied of the truth and accuracy of the evidence. For convenience I will refer to this simply as a warning. The main cases are Crampton v The Queen [2000] HCA 60; (2001)206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343.
These decisions in turn have received extensive consideration in decisions of intermediate appellate courts in Australia. It appears that trial judges are having difficulty in applying to cases involving sexual offences the principle considered in Longman. Longman and Doggett established that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning must be backed by the judge’s authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case.
I add that there are other circumstances in such cases that may call for a warning. In the present case the concern is with delay, coupled with forensic disadvantage to the accused, and I confine my attention to that topic.
The difficulty that trial judges are experiencing in this area is probably due to the fact that there are no hard and fast lines to be drawn. The issue is whether there is a circumstance in the case that gives rise to a perceptible risk of a miscarriage of justice, and accordingly gives rise to the need for a warning. That will depend on the circumstances of the case, the time that elapsed, and whether the accused is placed at a significant disadvantage. Sometimes a relatively short lapse of time will put the accused at a disadvantage. Sometimes a lengthy lapse of time will not put the accused at a disadvantage. It all depends on the circumstances. Alternatively, there may be a factor that calls for a comment rather than a warning. These are matters on which views can differ. Views have differed in appeal courts. Nor can trial judges resort to the easy course of giving a warning when there is a possibility that one might be called for. The giving of excessive and inappropriate warnings will be unfair to complainants, contrary to the public interest in a regularly conducted trial process, confusing to juries and runs the risk of returning this aspect of the law to an approach from which Parliament endeavoured to extract it, when Parliament enacted provisions such as s 34I(5) of the Evidence Act 1929 (SA).
It remains the task of trial judges, and of intermediate courts of appeal, to do their best to steer the right path in this area. It remains necessary to consider the time that has elapsed between the incident in question and notice to the accused person that a complaint has been made, or between that time and the commencement of the trial, the impact of that delay on the ability of the accused to present a defence, the nature of the prosecution case, and whether it rests substantially on the unsupported evidence of the complainant.”
Although the delay in this case was not as substantial as in Longman and Crampton, the matters raised by Mr Schapel in his submissions are of substance. The brevity of the judge’s direction as to the need to scrutinize the evidence of L, the lack of any warning relating thereto, and the failure to draw the jury’s attention to the forensic disadvantages to the applicant raise substantial grounds on the merits which give rise to an apprehension as to a miscarriage of justice. I would therefore give leave to appeal as to these two grounds.
Grounds 3, 4 and 5 can be considered together. Ground 3 is a complaint that the judge invited the jury to speculate when he posed the question “Could it be she did not confide to her mother because she feared her mother would not side with her on allegations which she would make up about her mother’s husband?” Mr Schapel argued that there was no evidence from L nor any evidence from which it could be inferred that the fear of her mother not siding with her formed part of the explanation for the delay in making the complaint. Mr Schapel suggested that this had the effect of undermining the defence case as L’s mother had given evidence for the defence. The thrust of the mother’s evidence was that because the same thing had happened to her, she had been particularly vigilant and would have noticed if anything untoward had taken place.
Grounds 4 and 5 refer to the direction given by the judge with respect to the medical evidence. Dr Woodard-Knight had examined L and gave evidence with respect to an injury to L’s hymen which she said could have been caused by an erect penis or a finger. She said if it was not an erect penis or finger, the only other possibility was some accident which would have been traumatic. On the defence case, the medical evidence was equivocal due to the evidence that it could have been caused by penetration of an object accidentally and that had not been negated by the prosecution. There was also evidence from L’s mother that L had never complained to her about any physical injury to her vaginal area.
The judge referred to medical evidence but then went on to say:
“You may well conclude, it is entirely for you, but the only reasonable explanation of the evidence for this injury to [L’s] hymen is that she has been sexually penetrated by either a penis or a finger on more than one occasion which excluded the possibility and that direction went too far due to the failure of the prosecution to exclude an accidental injury.”
The fifth ground suggests that the direction given by the judge which essentially related to the lack of complaint to her mother about this aspect of the matter was unbalanced.
In my opinion, the matters raised by the applicant with respect to each of these grounds are related to problems which arise out of the failure to give a Longman warning. In view of my finding as to Grounds 1 and 2, I consider leave should be granted as to these grounds.
Ground 6 relates to the direction with respect to the uncharged acts. The judge reminded the jury that the applicant was charged with only six offences and no more and went on to say:
“In this trial you have heard evidence of various incidents between the accused and [L] which are not the subject of the six charges, but which you might think constituted other offences of unlawful sexual intercourse or indecent assault. That evidence has been led in this trial to enable you to gauge, insofar as you accept it, the extent and the nature of the overall relationship between the accused and [L], and to put the six incidents which are the subject of the charges in their proper contexts.
You should not act on any other incident in forming a conclusion adverse to the accused about the nature and the extent of his relationship with [L] and the context in which an incident charged occurred unless you are satisfied about the truth of the victim’s version of these other incidents which could amount to other similar offences. You must not use any finding you make about any uncharged incidents of unlawful sexual intercourse or indecent assaults to reason that the accused has a propensity to commit such offences and therefore is more likely to have committed the offences charged than if you had not known about the other matters.
You must limit your use of any findings about uncharged other offences of unlawful sexual intercourse or indecent assaults to the nature and extent of the overall relationship and the context in which the incidents or charges occurred and not use them for any other purpose.”
The approach to be taken by a trial judge when directing a jury as to the relevance of uncharged acts and the use which may be made of evidence relating to them was discussed by Doyle CJ in R v Nieterink[15]. Doyle CJ said (at 72):
“The jury had to be directed clearly not to act upon the evidence unless satisfied of its truth. It may be that to the extent that the evidence of uncharged acts were circumstantial evidence explaining R’s conduct, and the circumstances of the offences, proof beyond reasonable doubt was not required. But if the evidence was used as proof of a sexual attraction on the part of the appellant towards R, involving the commission of criminal acts, it seems to me that it might have formed an indispensable link in reasoning to guilt, and for that reason would have to be established beyond reasonable doubt: cf R v Ball [1911] AC 47 and Gipp at 133-134 McHugh and Hayne JJ. My view is that to avoid confusing the jury, by referring to different standards of proof, the jury should have been told not to act upon the evidence of uncharged acts unless satisfied that those acts were proved, even though, in the light of the Judge’s general directions to the jury, that would convey to the jury that what was required was proof beyond reasonable doubt.
Next, the jury had to be told how they could use the evidence and how they could not use the evidence: R v Dolan (1992) 58 SASR 501 at 503 King CJ.
The jury had to be told the particular manner in which the evidence could be used. That could be done briefly, and along the lines indicated by me above. Usually it will not be sufficient to speak generally of the evidence as establishing background matters. It is desirable to be quite specific about its proper use, both to help the jury to approach the evidence in the correct manner, and to reduce the risk of an incorrect approach. In a case like this, the term ‘relationship’ should be avoided. The jury should be told that the evidence, if accepted, is evidence of a sexual attraction of the accused towards R.
The jury had to be warned quite specifically not to reason, if they accepted the evidence about the uncharged acts, that the accused had committed similar offences and that the accused was the sort of person who might commit the crimes charged, and find him guilty on that basis. The Judge should emphasise that generalised propensity reasoning of that sort is not permissible. The jury should also be particularly warned to convict only if satisfied beyond reasonable doubt that the particular conduct the subject of the relevant count has occurred. They should be specifically warned not to reason that conduct similar to that charged has occurred, and that on that basis they can convict on a particular count.
In my view it is particularly important that this guidance and these warnings be given in such a case, because of the potential for prejudicial misuse of evidence of other uncharged acts: see G (1996) 88 A Crim R 489 at 493-495 Callaway JA.”
[15] (1999) 76 SASR 56
Bearing in mind those remarks, I think the direction in this case as to the uncharged acts was probably adequate. The failure to give a Longman warning is, however, a matter which is relevant to the uncharged acts. On that basis, I think leave should be given as to this ground.
Having considered each of the proposed grounds of appeal I am persuaded that there are substantial issues arising therefrom which provide grounds for apprehending that a miscarriage of justice has occurred. Time should therefore be extended to 6 January 2004, being the date on which the amended grounds were filed. Leave to appeal is granted on all grounds.