R v Mazzolini
[1999] VSCA 150
•23 September 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 33 of 1998
THE QUEEN
v
ROGER MAZZOLINI
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JUDGES: PHILLIPS, C.J., ORMISTON and CALLAWAY, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 12 and 13 May 1999 DATE OF JUDGMENT: 23 September 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 150
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CRIMINAL LAW – Sexual penetration of child between 10 and 16 years – Circumstances giving rise to need for "Longman" warning – Delay and badgering of daughter by father in order to extract allegation – Whether warning sufficient – Whether directions amounted only to comments – Effect of failure to take point at trial and in oral argument on appeal – Absence of motive to lie – Whether questions amounted to impermissible suggestion – Whether verdict unsafe or unsatisfactory –
s.61 Crimes Act 1958.
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APPEARANCES: Counsel Solicitors For the Crown Ms S. Pullen P.C. Wood, Solicitor for
Public ProsecutionsFor the Applicant Mr. W.B. Z. Woinarski, Q.C. Victorian Legal Aid
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Ormiston, J.A., in draft form. I gratefully adopt his account of the facts and issues touching the trial of the applicant. I agree, largely for the reasons his Honour has advanced, with his conclusions upon each of the three grounds pleaded. As to ground 1, I desire to add the following. The evidence-in-chief of the complainant included a segment which, in my experience, is unusual in this type of case. In the course of describing a phone conversation between her and the applicant which she said occurred in late April or early May of 1996, the complainant was asked:
“Can you recall the substance of that conversation, can you recall
anything that Mr Mazzolini said?”
She replied:
“He asked me as to whether I told my parents about what he did to me in the back room at, in Waugh Street in Charlton. He said to me that did he realise that in the back room when he was staying there that he was masturbating - - -“
She later added that she had informed the applicant that she had not told her parents about that matter.
On the Crown case, the incident referred to in the above question was clearly the act charged against the applicant. If accepted by the jury, this was a very significant piece of evidence for the prosecution. It would not have escaped the jury’s attention, in my view, that it was never put to the complainant in cross- examination that her evidence as to this conversation was untrue or inaccurate. Nor would it have escaped the jury’s attention that when he gave his evidence-in-chief, the applicant did not deny the conversation. Indeed, it would have remained an uncontested piece of evidence had the learned prosecutor not incautiously asked about it in cross-examination.
As to ground 2, having read the transcript of evidence and the judge’s charge on a number of occasions, I am clearly of the view that the applicant was afforded a very fair trial. Indeed, the general tenor of the judge’s charge was positively favourable to him. In my opinion, in the resolution of this ground, the failure of the applicant’s experienced counsel to make relevant objection is a matter of real significance.
I find it unnecessary to consider the relationship between s.61 (1) (b) of the
Crimes Act 1958 and Longman warnings.
As to ground 3, I shall add that in my opinion, a large number of questions raising motive, were put to the complainant in cross-examination. The impugned questions were not, in my opinion, addressed contrary to the decision of the High Court in Palmer v The Queen (1998) 193 C.L.R. 1.
ORMISTON, J. A.:
This application arises out of the conviction of the applicant in the County Court at Kerang on one count of taking part in an act of sexual penetration with a child aged between 10 and 16 years effected by the introduction of his finger into the complainant's vagina. The applicant was found guilty and sentenced to a term of twelve months' imprisonment, the serving of which was wholly suspended for 24 months. Originally, the sole ground of appeal was that the verdict was unsafe and unsatisfactory, but at a very late stage of the hearing of this application the applicant was granted the indulgence of being permitted to amend his grounds of appeal, without objection by the Crown, so as to add two further grounds:
(2)
that the Longman direction given by the learned trial judge was inadequate "in that it failed to properly give the jury a judicial warning as to all the relevant matters which gave rise to the need for a Longman direction"; and
(3)
that the cross-examination of the applicant which is recorded at p.139 of the transcript was "contrary to the decision of the High Court in Palmer v. The Queen (1998) 193 C.L.R. 1 at 9".
The ground relying on the cross-examination was new inasmuch as it had not been raised at either the trial or previously in the course of this application, but ground 2 was conceded to be necessary because, although the matter was relied upon originally as a basis for suggesting that the verdict was unsafe or unsatisfactory, it was conceded that an acceptance of the point so raised would ordinarily only give rise to an order for a new trial and thus was inappropriate for consideration under the original general ground.
The present application is complicated by a further factor. As argued orally before this Court (which reflected his written outline), counsel for the applicant accepted that "the trial judge did give a Longman-type direction" in relation to the issue of delay and sought to concentrate on other factors which it was said required further Longman-type warnings, especially the unusual circumstances in which the complaint first came to be made, coming after three months of constant questioning by the complainant's father. The concession deflected attention from the extended passage in the learned judge's charge which dealt with delay. However, in considering the whole of the charge and in particular that part which dealt with issues said to require warnings, the Court noticed that the particular section of the charge about which the concession was made might not satisfy the requirements laid down in Longman v. The Queen (1989) 168 C.L.R. 79; R. v. Miletic [1997] 1 V.R. 593; Crofts v. The Queen (1996) 186 C.L.R. 427; R. v. Young [1998] 1 V.R. 402 and R. v. J. (No. 2) [1998] 3 V.R. 601 and other cases in which the relevant principle has been discussed. Consequently, however wide ground 2 might appear to be, the Court had heard no argument as to whether the first part of the so-called Longman warning had satisfied the relevant tests. As a result a letter was sent to the legal representatives of the parties seeking further submissions as to whether the charge in that respect had been inadequate, in particular pointing out that it might be said that the jury would consider that the trial judge's charge at that point to be mere comment and that he had not sufficiently given a warning with the authority of his office on the issue of delay. Some weeks later an exchange of written submissions on the point was completed. It may seem surprising that counsel both at the trial and on appeal (who were different) should not have previously taken exception to this part of the charge but to that aspect of the application it will be necessary to turn in due course.
The alleged circumstances out of which these proceedings arose may be said to be quite simple. Indeed the transcript of oral evidence, including that of the applicant who gave evidence, extended (together with some interruptions) over only some 82 pages of transcript, but there was evidence of some turbulent relationships, not so much between the applicant and the complainant, but between each of them and the father of the complainant, which can only be summarised in the broadest terms since there were distinct differences between the prosecution and defence cases.
At the time the charged offence was said to have taken place, somewhere between 1 November and 31 December 1993, the applicant was aged 28 and had known the complainant's father for some years through a suburban football club. During that time he had visited the father's house, also in a Melbourne suburb, where he had first met the complainant who at the time was only about 11 or 12 years old. The complainant's family then moved to a country town in northern Victoria, where the applicant continued to make visits to the family home though on a more intermittent basis.
Towards the end of 1993 the applicant again visited the complainant's home. According to the complainant, on one morning not long before Christmas and close to lunch time, she recalled coming out of her bedroom while the applicant was sitting alone in the lounge room and the other members of the household were outside the house. He was sitting in a chair in the corner of the room, about five metres from the doorway through which the complainant entered. He was wearing a dark blue top and a pair of stubby shorts. According to her the applicant's legs were slightly apart and one leg slightly raised with his foot propped on a coffee table. They spoke briefly, but she said that during the conversation he took his penis from inside his shorts and placed it alongside his right leg. According to her one inch of the head of his penis was showing. At the end of the conversation he placed it back inside his shorts with his hand as the complainant left the lounge room to go outside. This particular incident, said to have occurred about two days before the charged act, was the subject of objection but the learned judge ruled that it was sufficiently relevant to the relationship of the parties for it to be adduced in evidence.
About two days later, according to the complainant, she was getting ready for bed after taking a shower. The applicant asked her to make him a cup of tea and to bring it to him in his bedroom. She said that he informed her that "he had a surprise or something" for her. She took the cup of tea to him in his bedroom and he placed it on the floor. At the time she was wearing only a nightdress and shorts. She said that he moved towards her with outstretched arms as if he wanted a hug and to say goodnight. He pulled her in tight and then ran his hands up and down her back and then over her buttocks and thighs. He brought one of his hands around pushing her legs apart, and moving her underpants to one side. She said he then inserted a finger into her vagina from behind. At that moment her mother called out to her saying that there was something on the television she should watch. The applicant immediately removed his finger and moved away. The complainant then ran out into the lounge room.
The complainant said that she was shocked by the incident but she did not complain to her mother. Almost immediately she went to bed. She said she started crying in bed. At that stage the applicant came into her room and apologised for what he had done. He asked her whether he should leave "or something like that", but she could not remember her answer. He then returned to his own room. The applicant stayed on for a couple of days before returning home to Melbourne.
It is necessary to continue the narrative to show the subsequent relationship between the applicant and the complainant, for the applicant heavily relied on the fact that complaint was not made until nearly three years after the alleged events. It is not entirely clear the extent to which thereafter they saw each other until the last few months of 1995 but it seems likely that the applicant visited the complainant's home on at least a couple of occasions. By 1994 the complainant's family had moved to a smaller village not far away and were living on a farm. The applicant and the complainant saw a good deal more of each other during a visit by him when the complainant's father went away in the latter part of 1995 in order to obtain work driving a truck in another country area. It seems the applicant agreed to visit upon the basis that he would help the complainant's mother around the farm during that period. The complainant by now was just over 16 years old. Apparently it was at this stage that a strong attraction grew up between the two of them.
It seems likely that in October 1995, when the applicant arrived for this extended stay on the farm, the complainant was studying and under considerable stress. For some reason she had had a disagreement with her father so that she had turned to the applicant for comfort and support. Their friendship developed quickly into a sexual relationship which commenced in December 1995. She said that she felt very deeply for him and believed that she loved him. During the relationship they rang each other frequently, sometimes twice in a night. Letters were also written to him by the complainant which might be described as both passionate and explicit. During the relationship they had sexual intercourse with each other. In cross- examination the complainant admitted that the letters showed that she had taken an "extraordinary interest" in the applicant's penis.
Either in late April or early May 1996, however, the complainant's father found one of these letters, confronted the complainant, discovered her relationship with the applicant and forced her to give it up. At the time each maintained their deep feeling for the other and neither had taken, or desired to take, any step to bring that relationship to an end. Not long afterwards, according to her, during their last phone conversation the applicant asked her whether she had told her parents of the incidents in 1993 and she said she had not. The applicant denied asking any such question.
It seems, moreover, that the complainant's father was not content to bring the relationship to an end. There followed a period of at least three months of what seemed to be relentless questioning of his daughter about the relationship with the applicant. She admitted that sexual relations had taken place but did not directly tell her father that she still loved the applicant. At that stage the questioning revealed only that there had been intercourse since December the previous year, during a period when no breach of the law could have thereby occurred. The father's questioning sought to go into matters of great intimacy and precision of detail, possibly in the hope of finding something with which to charge the applicant. At the same time, in circumstances which were never made clear, it appears that the applicant alleged to the police that the complainant's father was stalking him. Some investigation by the police took place but no charges were laid and it is not clear precisely the extent to which the complainant's father was made aware of the allegations.
Eventually in August 1996 the complainant told her father of the incidents which had occurred in late 1993. He sought to report them to the police but, when the complainant was taken later in August to make a report, she broke down and cried and was unable to complete any statement. It seems that the father's questioning continued, though to a lesser extent, while his daughter received counselling. By January 1997, however, she decided that she was able to make a statement to the police and did so, making the allegations which are the subject of these proceedings.
After the applicant was arrested he was interviewed by the police, but, although readily admitting to his later intimacy with the complainant, he denied each of the earlier acts alleged against him.
At his trial the only evidence implicating the applicant was that of the complainant who was vigorously cross-examined, especially as to her delay in making complaint. Her father was called to give evidence about background matters and he was cross-examined especially as to the extent to which he had questioned his daughter and the circumstances in which she made the complaint. The applicant gave evidence denying each of the acts alleged against him, though admitting the later relationship. Likewise he was cross-examined at length. Some of the issues raised will be referred to later.
Finally the jury was charged by the learned judge in some detail and, if one may say so, in so favourable a manner as to suggest numerous reasons why they might have doubts as to the complainant's allegations. In particular the matters customarily raised in what has come to be called a Longman warning were dealt with extensively, although complaint is now made as to the language employed. That matter is now the subject of a separate ground, and details relating to that issue will also be dealt with later, as will the factual basis for ground 3. The only other matter which need here be referred to is that the learned trial judge, in making his customary required report to this Court, said as follows:
"... the complainant ... was a witness who was obviously embarrassed by her activities with the appellant being brought into the public arena, but who gave her evidence in a manner which left it open to the jury to be satisfied that she was a witness of truth and reliability. However, if and insofar as it has any relevance, because of the enormous pressure on her by her father which is discussed in the charge and the sentencing remarks, I would not have been prepared to act on her evidence to convict the accused."
(i) Whether verdict unsafe or unsatisfactory
The first ground of the application, originally the only ground, is that the verdict was "unsafe and unsatisfactory". The matters complained of and which ought, so it was argued, to persuade this Court that the verdicts should be set aside were expressed in counsel's outline substantially in these terms:
The allegation of "indecent assault" (sic) made against the applicant did not surface until -
(a) nearly three years after it was alleged to have occurred;
(b) after the applicant and the complainant had had a sexual relationship over some months (December 1995 to May 1996);
(c) after the complainant's father had found out about the sexual relationship and had effectively ended it;
(d) after the applicant had initiated an investigation into allegations of stalking against the complainant's father, of which both the complainant and her father were aware;
(e) after extensive, regular and gruelling questioning of the complainant by her father from May until a date in August 1996 and that questioning had never elicited any such suggestion.
It was also said in support of what was claimed to be a "very unusual case" that the complainant at that time had not completed any statement to the police and did not do so until January 1997. Finally it was argued that there was no independent evidence corroborating that of the complainant. The alleged failure to give a warning in conformity with the requirements of Longman will be dealt with later, but, as it was originally argued, the failure to treat each of the matters described above as matters requiring a Longman warning was said in itself to make the verdict unsafe or unsatisfactory. Originally it was the failure to give a Longman warning in relation to the circumstances in which the allegation first arose (items (c) to (e)) which was relied upon. Later, although it seemed to have been conceded that a warning of the required kind had been given as to delay, all five items were relied upon, on the basis that, as a whole, no proper warning had been given. Of course a failure to give such a direction may require the Court to direct a new trial but it does not inevitably follow, as was recognised by counsel for the applicant, that a verdict of acquittal should necessarily be entered if the ground were made out, as would ordinarily follow any decision that a verdict was unsafe or unsatisfactory.
Thus it is important to understand the extent to which the learned trial judge attempted to describe to the jury and warn them about the various aspects of the case which could lead them to treat the allegations with such suspicion as might preclude them from finding that they were proved beyond reasonable doubt. The terms of his charge will be examined later in greater detail. They were, in a sense, unusual circumstances and there were aspects of the complainant's evidence which the jury could not ignore if they were to render a proper verdict according to the whole of the evidence. So the Court must examine the extent to which the trial judge attempted to put those matters before the jury shortly before they were about to retire to consider their verdict. In that respect I consider the learned trial judge made very clear to the jury those aspects of the case which in his opinion might have led them to have real doubts about the case being made on behalf of the prosecution. Notwithstanding the learned judge's reference to these matters the jury found the applicant guilty.
The constitutional body entrusted with reaching the verdict was, however, the jury and there must be something special in the circumstances to render it appropriate that an appeal court should deny that verdict by characterising it as unsafe or unsatisfactory. Those matters have been recently analysed in considerable detail in several decisions of the High Court, the accepted principle being now stated in M. v. The Queen (1994) 181 C.L.R. 487 at 493-495 per Mason, C.J., Deane, Dawson and Toohey, JJ., as confirmed in Jones v. The Queen (1997) 191 C.L.R. 439 at 450-452 per Gaudron, McHugh and Gummow, JJ. (and see per Kirby, J. at 468). Thus, where the evidence in the record (i) contains discrepancies, (ii) displays inadequacies, (iii) is tainted or (iv) otherwise lacks probative force "in such a way as to lead [an appeal court] to conclude that, even making full allowance of the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted", the court is bound to set aside the verdict. In this case, each of the matters described above as founding the contention that the verdict was unsafe or unsatisfactory had also been fairly relied upon by the applicant at the trial, inasmuch as counsel then appearing for him made a forceful address to the jury pointing out what were said to be these weaknesses in the prosecution case.
In the end the weakness in the prosecution case was not so much to be seen in the inconsistencies in the complainant's story of the critical events as in the circumstances which led to its being told at all. Those inconsistencies were, so far as I can gather, not so much to be discerned in her recounting of the events which she said occurred in the last month or so of 1993 but in the matters of incidental detail relating to her later, lawful relationship with the applicant and its termination. The defence placed great emphasis upon the complainant's failure to make complaint for such a long period of time after the events. Although significant delay is ordinarily the proper subject of a Longman warning, it should not be forgotten that the courts by their own experience and, more recently, by reason of statutory requirement, have seen delay in making complaint as not necessarily denying the truth of the subject matter of a complaint. Many unfortunate cases of long delayed complaints have come before the courts in recent years and, more significantly, a very large number have led to guilty pleas, so that no questions there were raised as to the veracity of the complaints though many years delayed. Moreover, s.61(1)(b) of the Crimes Act now requires the judge to inform the jury that there "may be good reason why a victim of a sexual assault may delay or hesitate in complaining about it". These matters do not deny the need for appropriate directions, nor in some cases for delay to be seen as something which suggests untruthfulness, but it cannot be a factor which in the ordinary case necessarily must require an appeal court to conclude that a verdict is unsafe or unsatisfactory for that reason alone. Generally speaking, there ought to be something more to justify intervention of the kind here sought.
At first sight the complainant's delay in making complaint appeared to be not only of a kind which seemed hard to explain but in addition the allegations "eventually" came to light in circumstances which suggested also that the complainant was trying to extricate herself from the constant, wearing questioning by her father, by providing him with a story which would satisfy him in the sense that he thereby had material to justify his campaign of vilification against the applicant. The possible unreliability of allegations which were made in those circumstances was pointed out forcefully by the applicant's counsel at trial and by the learned judge in some detail in the course of his charge.
On the other hand, it is not difficult to see the contrary argument which might have appealed to the jury as to why the complainant had kept the allegations to herself for so long. The events themselves were perpetrated by a person who had to some degree been trusted as one of the family and to whom the complainant may well have had an incipient attraction, ultimately turning into a passionate affair just after she turned 16. The charged act, though a breach of the law of a most serious kind, nevertheless was characterised by the judge as one for which the applicant ought not to be required to serve an immediate custodial sentence. It was the very kind of act where the victim might well have thought it easier, less complicated and less embarrassing to say nothing about somebody trusted by her parents, especially as, although not surprisingly shocked, there was no evidence that she had otherwise suffered any severe or obvious reaction. (Indeed, although it was not in evidence at the trial, nor could it have been, there was no victim impact statement at the plea and the Crown apparently conceded that there was no evidence of lasting psychological reaction.) Furthermore, it is by no means an uncommon experience to come across cases where children have been attacked in their homes by an older relative or trusted friend of the family, where the victim has found it difficult to make an immediate accusation.
In the subsequent period up to the time the complainant turned 16 there seemed no event and nothing in their relationship which might have impelled her to make complaint then, in the light of her failure to make any earlier complaint. As to her failure to make complaint after she had turned 16, in particular during the period of their affair and subsequent discovery, there seem to have been other possible reasons which to the jury might have justified her reluctance at that stage to make the accusation. The difficulties the complainant could be thought to have had in "putting in" the applicant might have resulted from the strong passion felt by her for the applicant during that period. Moreover that relationship did not come to an end because of some natural waning of affection or through disagreement but by reason solely of her father's intervention. However willing she was (and this may be doubted) to tell her father about her lawful relationship with the applicant, there might arguably have been a naturally greater reluctance to reveal facts going to illegal activities which might have led to charges against the applicant and his conviction. His anxiety on that score had, according to her, already been revealed when they had their last telephone conversation shortly after her father discovered the letters and he was reassured by her answer, at least according to her evidence. Her consistency might be said not to be surprising so that it took some time before she could change her mind. Why she did so is not clear, but it may be that the residue of her passion had worn off over those months or perhaps she no longer had the resolve to resist her father's constant badgering. Her unwillingness to tell all about these matters may be said to be confirmed by her breakdown at the police station, although the applicant says that points in the opposite direction. Unwillingness and hesitation of this kind need not, however, evidence untruthfulness, or at least the jury may have so concluded.
Now, one can never know what considerations lead a jury to reach a particular verdict but it is sufficient for the present purpose, that is, to show those possible factors which might have led the jury to consider that the complainant could justify her delay without their ascribing it to her imagination or other malicious purpose, so that the jury may have viewed her behaviour in that favourable light. These considerations would provide an explanation for her apparent change of heart and her later revelation of the applicant's behaviour. That explanation might be thought open to be accepted by the jury.
To these matters of excessive delay the applicant also added reference to the absence of any independent evidence corroborating the complainant's version of events. Undoubtedly that was true and it was clearly a factor which the jury ought to have taken into account. On the other hand the judge, as with each of the factors to which I have referred, made detailed comments in his directions as to these deficiencies in the prosecution case and, but for the matter which is raised by ground 2, gave as complete and fair a charge to the jury as could be expected in the circumstances. Indeed, the charge was particularly favourable and one where it is not difficult to see that the judge was suggesting that there was real reason to doubt the veracity of the complainant's story.
Be that as it may, the jury brought in a verdict of guilt. In my opinion they were entitled to do so, if properly directed, for they had the benefit of seeing all the witnesses, especially the complainant, and her story was not so irrational or inconsistent or infected by other factors likely to affect her credibility as to require this Court to overturn the verdict as unsafe or unsatisfactory.
There is only one other matter relating to this ground, namely, the learned judge's report to this Court. It is unnecessary to refer to the occasions when the significance of such a report has been described and analysed for there seemed no dispute that it could be taken into account. The judge's report was not expressed in terms that he could see no reason why the jury should have accepted the complainant's version of the events. Indeed he makes clear that the manner in which she gave her evidence left it open to the jury to be satisfied that she was a witness of truth and reliability. In those circumstances, it does not seem that he is pointing to any element of unreliability or any other factor which might have been beyond the jury's capacity to evaluate, so that in itself his own opinion as to the complainant's unreliability would not require a conclusion that the verdict was unsafe or unsatisfactory. Since he has expressed himself in that limited way and since the matters otherwise raised would not justify that view of the prosecution case, nor indeed of the whole of the evidence, I am not satisfied that the applicant has shown that this verdict was unsafe or unsatisfactory.
(ii) Whether Longman directions required and given by trial judge (a) General
The second ground, added during the course of argument, was to the effect that the Longman direction given by the learned judge was inadequate in that it failed to give the jury a judicial warning as to all relevant matters. There was in fact a most extensive discussion, in terms favourable to the applicant, by the learned judge of all the matters which might be thought capable of requiring Longman directions but originally, having regard to the concession made as to the form of his charge relating to delay, the applicant's contention was primarily confined to the circumstances in which the allegation first came to be made by the complainant, in particular to the fact that it was made only after three months of extensive and gruelling questioning by her father. I have already suggested reasons why that course of events may not have been as surprising or as suspicious as the applicant sought to show in his case both before the jury and in this Court. Nevertheless it could not be ignored and much time at the trial was concentrated upon that sequence of events.
Whatever the original concession amounted to, the argument at all times pointed to the whole of the circumstances as requiring Longman directions. What occurred after oral argument concluded brought into question also the sufficiency, in particular, of what the learned judge had said about delay, indeed what in general he had said by way of warning as to each of the five matters referred to in para.16 above. The argument, therefore, raised questions as to whether Longman directions had to be given in relation to each of these matters and whether in fact the judge gave sufficient warnings in all the circumstances.
As a result of these matters it is necessary to analyse what the learned judge said in his charge to the jury. In this case one cannot reach any satisfactory conclusion without reading the whole charge in its context. Even then I would venture to suggest the effect on the jury could only be gauged by those present in the courtroom, especially when matters of comment and warning are an issue. It is not insignificant for this purpose that experienced counsel for the applicant (who was not the same counsel who appeared on this application) took no exception to what was then said. It must be conceded that at trial this may have been a tactical decision, for counsel must have seen the charge in general as highly favourable to his client, but that would not have prevented correction of any obvious deficiencies, if so they had appeared to counsel.
There is no doubt that on a number of crucial issues, especially matters such as delay and the like, the judge canvassed in detail the defects in the prosecution case and, as it seems to me, forcefully pointed out the dangers in accepting the evidence unless the jury was fully satisfied of the applicant's guilt to the required strict standard. Directions of that kind extended for what appears in over ten pages of the transcript of a relatively short charge. Thus he dealt with, in order, the lack of supporting or confirmatory evidence, making clear that there was no evidence other than that of the complainant to support the Crown case, then the fact that there had been a substantial delay between the time of the event alleged and the complainant's first raising of it, including the absence of any immediate complaint (with the statutory qualification), next the fact that the complaint came after a torrid relationship between the parties, and finally he turned to the fact that the complaint first arose after "extreme and relentless pressure from her father", as the judge described it. However, on the last issue the judge seemed to be more circumspect, not in the sense of his failing to describe the circumstances of the father's behaviour and its possible effect in most critical terms, but by saying that what he was about to say was "a comment of mine which you can reject". Having described the father's attitude as both "overbearing" and "badgering" such as "would have broken any 16- year old girl", he returned to the issue with further criticism of the circumstances concluding the reference by saying that "whether you agree with that comment is a matter for you. I am putting it to you, it is for you to evaluate this evidence ...". If these words stood on their own, then I would doubt that they would have been sufficient to satisfy the requirements of a Longman warning for it is of the essence of that kind of warning, as I would understand it, that the judge give the authority of judicial office to any warning about the danger of convicting upon material which gives rise to the need for such a warning: Longman at 90-91 and Miletic at 605-606. But the judge said a great deal more in the course of his charge.
(b) The need for and form of Longman-type directions
Although there is no precise formula to be used when giving a Longman warning, the essence of the rule is that the jury should firmly be told in effect that it is dangerous or unsafe to convict in the stated circumstances unless the jury, having scrutinised the evidence with the greatest of care, are nevertheless satisfied of the truth and accuracy of that evidence: Longman at 91. However, as was there stated, the precise range of circumstances which bring with them the need to give a Longman warning are not yet defined with certainty (see also Robinson v. The Queen [1999] HCA 42 at para.[19]), nor, as I understand the reasoning in Longman, are they likely to be, for the problem arises most frequently where there is essentially but one prosecution witness to the acts charged and where the circumstances are such that a jury may not have a full appreciation, even with the benefit of their width of representation, of particular aspects of unreliability to which the judge should draw attention. Thus, if the criticism can be seen to be obvious to the members of the jury and where counsel has drawn attention to the deficiencies in the course of address, then ordinarily an appreciation of the strength and weaknesses of a particular witness's evidence can fairly be left to the jury without special warning. The fact originally here relied upon was the badgering of the complainant's father extending over more than three months, said to have given rise to a false complaint. As will be seen, I am by no means certain that the jury were not fully able to comprehend the risks inherent in the situation where a father constantly asks questions of his 16-year- old daughter as to a sexual relationship. Now argument for the applicant ranges over the whole of that part of the charge which deals with those subjects which might be thought to require Longman directions. In particular the judge's directions as to delay are said to be insufficient, failing in particular to bear the stamp of judicial authority upon them.
Consequently, favourable though the learned judge's comments were to the case of the applicant and notwithstanding the want of exception at the trial and the concession made during oral argument on this application, it is now said that what the judge told the jury about these issues did not satisfy the requirements for Longman directions, as laid down in the cases, in particular those to which I have referred. I shall continue to describe them as "Longman directions" for, as I understand those authorities, warnings are not ordinarily appropriate in this jurisdiction where the issue is the complainant's want of credibility arising from delay in making complaint, where it is not otherwise said that the delay has in one way or another prejudiced the fairness of the trial of the accused. It should be remembered that the majority in Longman (at 91) had laid down the test for an appropriate warning only after concluding that "the fairness of the trial had necessarily been impaired by the long delay … and it was imperative that a warning be given to the jury". So they there concluded:
"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."
Earlier in Longman the majority had considered (at 90) other circumstances in which it was necessary for a judge to give appropriate warnings or directions, introducing the subject by reference to the provisions of the Western Australian legislation which prohibited "a warning to the jury [as to the unsafety of convicting on uncorroborated evidence of a complainant] unless satisfied that such a warning is justified in the circumstances". The majority then described those circumstances, excluding the fact that the complainant was an alleged victim of a sexual offence, but including the absence of prompt complaint to her mother or to the accused. On these matters they said (at 90):
"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." (Emphasis added.)
Their Honours proceeded (at 90-91):
"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'." (Emphasis added.)
Importantly they then added (at 91):
"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 … 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." (Emphasis added.)
It was that contrast between "comment" and "warning" which led to the statement which I have quoted in the last paragraph as to the nature of the warning which should be given where there is extensive delay affecting the conduct of the accused's case.
These observations seem entirely consistent with what was subsequently said by the Court of Appeal in Miletic and R. v. J. (No. 2) and by the High Court in Crofts, where it would appear that the approach in Miletic was approved: see Crofts at 434, 445 and 450. It should be remembered that in Miletic and Crofts the trial judges had attempted to comply with the requirements of s.61(1)(b) of the Victorian Crimes Act which at that time required the judge to warn the jury that delay in complaining did not necessarily indicate that allegations were false and to inform them that there might be good reasons why a victim might hesitate in complaining. (The paragraph has now been amended: see below.) In Miletic the absence of any critical comment about the complainant's delay in making her allegations was held to have led to an unbalanced charge as to her credibility, thus causing a miscarriage of justice (at 603 and 606), but the distinction between comment and warning was later clearly noted at pp.604-605. Although the Court held (at 603) that the judge should have told the jury that "they could, if they thought fit, use that delay as a factor in evaluating the complainant's testimony and in determining whether to believe her", I would not take it to be suggesting that ordinarily anything other than a "comment" was called for on this limited aspect of credibility. One may note that in Victoria s.s.(2) of s.61 did not and does not pose the problem that the Western Australian Act posed in Longman by use of the word "warning", for it says that nothing in s.s.(1) "prevents a judge from making any comment on evidence … that it is appropriate to make in the interests of justice" (emphasis added): but cf. Miletic at 603.
Again, a similar problem arose in Crofts where the trial judge again satisfied the requirements of para.(b) of s.61(1) by making comments along the lines there required, but made no observations to counter-balance them in circumstances where there was a six year delay in making complaint. The Court held that the new statutory provisions did not "sterilise" the evidence of a complainant from appropriate judicial comment about the absence of timely complaint: at 451. If it be a case "otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts" would prevent the trial judge from ensuring "that the accused secures a fair trial" (at 451). On the same page the majority said that "the warning should not be expressed in such terms as to undermine the purpose of the amending act by suggesting a stereotype view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false". As will be seen this would suggest that in these circumstances a comment is required but a full Longman warning, as it has come to be known, would ordinarily be inappropriate if the purpose of the statutory amendments is not to be set at nought.
Various incidental comments as to the application of Longman and Crofts have appeared in later High Court judgments but, as I would read them, no presently relevant alteration to the matters of principle stated by the majority in each of the earlier cases was expressed in the later cases: see M. v. The Queen; B. v. The Queen (1992) 175 C.L.R. 599; B.R.S. v. The Queen (1997) 191 C.L.R. 275; Jones v. The Queen (1997) 191 C.L.R. 439; Suresh v. The Queen (1998) 72 A.L.J.R. 769; Graham v. The Queen (1998) 72 A.L.J.R. 1491; Robinson v. The Queen [1999] H.C.A. 42. The latter case, decided after argument and the written submissions were received in the present case, appears to deal with a section in different terms which contains no requirement that the jury be informed that a complainant may have good reasons to delay in making complaint.
The distinction between a warning and a comment, so carefully drawn by the majority of the High Court in Longman and equally clearly accepted by this Court in Miletic, requires some further consideration, for it seems to me that subsequently the significance of that distinction may have been overlooked from time to time. One starts with the premise that, although what the majority there said is of general application at least where there is only one Crown witness to an alleged offence, the reason for the High Court's examination of the relevant principles was the restriction by the Western Australian legislature, in line with that of other States, of the judge's power to give direction as to the corroboration of complainants in sexual cases. The absence, or possible absence, of strictly corroborative evidence of a complainant's allegations could and can no longer be the subject of a warning of the kind required to be given over a period of a century or more: for a history of corroboration see Rosemeyer [1985] V.R. 945 at 960-966, cited with apparent approval by Dawson and Gaudron, JJ. in Pollitt v. The Queen (1992) 174 C.L.R. 558 at 599. It had been accepted that since legislation on the subject had been passed in the various jurisdictions that, though a warning could not be given, a comment could be made as to the risk of accepting a complainant's version of events if it were not independently confirmed. The significant but obvious point made by Longman was that in the type of case dealt with by the statutory amendments there may always be other circumstances which will, if they exist, justify the giving of a warning as to the danger of convicting where the evidence may be so tainted. The subsidiary point was that, although a judge must not give a warning against accepting the uncorroborated evidence of a complainant as such, comments may still be made by the presiding judge so long as they are fairly balanced (at 90-91) and so long as they do not "convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which [the section] eliminates" (at 87-88).
The statutory prohibition is subject to a qualification which appears in s.s.(2) of s.61 of the Victorian Act and which is similar but not identical to paragraph (1)(b) of s.36BE of the Western Australian Evidence Act. Of the latter the High Court said that, although it permitted a warning of the kind described in the primary provision if "justified in the circumstances", those circumstances must be found outside the fact of there being mere uncorroborated testimony, so that it will only be justified if the particular circumstances call for a warning (at 88-89). As pointed out in Longman and Miletic and other cases, those circumstances in themselves must call for the warning, being circumstances which would be ordinarily outside the experience of members of a jury and thus which demand a warning as to the danger of convicting without there being some other confirmatory evidence supporting the complainant's version.
What will call for a full Longman warning, as I have called it, will therefore normally arise out of some very special circumstances or out of the existence of those circumstances which conventionally have in any event required the giving of a warning. The only factor requiring the giving of a warning in Longman was the exceptionally long 20-year delay from the time when the alleged events occurred until complaint was first made. That would naturally affect the recollection of the complainant but, as the reasoning in Longman and in the subsequent cases makes clear, it is the other consequences of delay which provoke the need for the full warning, in particular the difficulties which an accused faces in making a response to the allegations, in finding other witnesses who can recall surrounding events after that length of time and generally in conducting a defence to the charges. Even a much shorter delay, of only a few years, may bring with it many of the same difficulties for an accused, although it cannot otherwise be said that the recollection of the complainant or for that matter the accused would be so greatly affected. Indeed the danger these difficulties give rise to, in the kind of case which leads to the need for these warnings, is that almost invariably the victim and alleged perpetrator are the only persons present and so they are the only direct witnesses. If the accusation is untrue it is ordinarily exceptionally difficult for an innocent person to recall what he or she was doing at the relevant time, let alone to recall who may or may not have been present. This will be particularly the case where the alleged events took place in what otherwise would seem to be ordinary domestic, educational or business surroundings, where the accused might have no reason, if innocent, to recall the alleged contact with the complainant.
Clearly, therefore, it is not every delay or every deficiency in the prosecution evidence which will now call for a full Longman-type warning. Indeed the present s.61, in terms similar to those in corresponding sections in Western Australia and other States, requires the judge to "inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it": para.(1)(b). Such an instruction is required where the matter of delay in complaint is raised in the course of evidence or addresses. Though events of that kind may be a necessary condition requiring the possible reasons for delay formally to be explained to the jury, clearly enough it shows that the intention of the legislature is that mere delay in complaining of a sexual assault is not in itself now sufficient to justify a warning about accepting the unconfirmed testimony of a complainant, whatever be the justification for warnings where the delay is gross, as in Longman.
The dangers of accepting unconfirmed evidence recognised in Longman are of a special kind, not such as formerly arose by reason of want of corroboration of a sexual complaint. Thus, though the High Court accepted that the 20-year delay in that case brought with it special dangers which ought to have been brought to the jury's attention and made the subject of a warning, the mere fact of delay in the sense of a failure to make prompt complaint was not in itself seen as sufficient. This much was recognised in the two sentences on pp.90-91 (quoted above) where the kind of delay resulting from a "complainant's failure to complain" was said to justify only a "comment", a comment which must be "fairly balanced", including the statutory qualification.
Although all warnings and comments of the kind now under discussion are directed to the credibility of witnesses, here that of complainants in sexual cases, one should notice why and in what circumstances delay of that kind was held to require a special warning in Longman. Where it exists, delay in making complaint, in the sense of a failure to make complaint promptly, is and was in this kind of case an obvious basis for criticism about the credibility of the complainant inasmuch as it is frequently argued that delay of that kind throws doubt on the truthfulness of the complainant's story. Nevertheless a full warning by the judge on that subject, unless there be additional factors, is ordinarily unnecessary, because it is not a 'factor which may not have been apparent to the jury', the condition referred to in Longman at 91 and in Miletic and other cases passim. Moreover it is almost impossible to conceive of circumstances where delay consisting only of a failure to make prompt complaint in itself would justify a full Longman warning, for it would not ordinarily be appropriate to warn a jury that it is 'dangerous to convict' on a delayed complaint while at the same time satisfying the requirements of para.(1)(b) of s.61 by warning or informing the jury that there may be good reasons why the complainant may have delayed or hesitated in making that complaint. Where the failure to make prompt complaint is relied upon to show a complainant's lack of credibility, then it is only where that kind of delay is accepted by the jury as creating doubts as to credibility that it can be said that it would be dangerous to convict in reliance on such a delayed complaint, for if the jury were to accept that there was good reason for delaying or hesitating in making complaint, then that danger would, ipso facto, either disappear or be greatly qualified.
Perhaps logic might be satisfied if the jury were to be told that, if they were not satisfied that the complainant had good reasons to delay or hesitate in making complaint, then it would be dangerous to convict on unconfirmed evidence unless they had scrutinised the complainant's evidence thoroughly and were nevertheless satisfied of guilt. But an exercise of that kind would be an unnecessarily complex one for the jury, breaking up the jury's assessment of the complainant's credibility in circumstances where a "balanced" or "balancing" comment has been held to be appropriate in Miletic and Crofts.
All this does not deny the need in some cases for the judge to comment in strong terms that the complainant's evidence should be scrutinised carefully, but a full Longman warning, following the terms there outlined at p.91, would fly in the face of the statutory requirement where credibility in the sense of the reliability of the complainant's testimony is the relevant issue. If the judge were merely to point out that delay evidenced by a failure to make prompt complaint threw doubt on the complainant's credibility, thus making it dangerous to convict unless the evidence had been thoroughly scrutinised, the statutory requirement, and its spirit and intendment, would be implicitly denied, for the jury would then be warned of the danger which might not exist if they found the delay excusable. As was held in both Miletic and Crofts, it is a "balanced comment" which is normally called for in these circumstances. So I would suggest that the judge might, if it be thought necessary, make a comment in the form or to the effect of that suggested by Callaway, J.A. in R. v. TJB [1998] 4 V.R. 621 at 634:
"You may take [the complainant's] delay in complaining into account in deciding whether to accept [his or her] evidence, but you should also remember that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it."
Such a "balancing statement" may doubtless be seen to be sufficient, inasmuch as a failure to make prompt complaint is said to throw doubt on the credibility of the complainant's own evidence.
That kind of delay, however, is to be contrasted with the vices and consequences of the kinds of delay which the High Court said in Longman required a considered warning that it would be "dangerous" or unsafe to convict an accused on the complainant's evidence alone unless the jury, having scrutinised the evidence with great care, were satisfied of the truth and accuracy of that evidence: at 91. So it was not so much the failure to make complaint promptly which was there significant (and which was there said to justify a balanced comment: at 90-91), but what was important and what will continue to be important are the consequences of delay which resulted and result in an accused's "loss of those means of testing the complainant's allegations which would have been open to him had there been no delay": at 91. In effect the majority in Longman took into account the aspects of delay which affected the ability of the accused to conduct his defence including any resulting inability to test the complainant's allegations and to recall and obtain evidence to rebut the prosecution case. These matters, and any other significant incidental consequences of delay, are quite different in character from any arguments based on the supposed unreliability of a complaint which the complainant, for good reason or bad, has failed to allege promptly but within what otherwise might have seemed a reasonable period. Although a full Longman warning goes in general to the credibility of the Crown case and in particular to that of the complainant, it is the difficulties of the accused in meeting that case which must justify the warning, for these are the facts and matters which a jury would not ordinarily understand or appreciate without the benefit of a judicial warning. I should add that the expression "delay in prosecution" which appears on both pp.90 and 91 of Longman, cannot be limited to the time between complaint and trial or to matters arising only out of a long delayed trial, for the issues to which the majority drew particular attention were difficulties for an accused which arise out of delay up to the time that the complaint is first made known, being difficulties of a kind which, as I have mentioned, may arise out of a delay for a much shorter period and which might not necessarily be seen to affect recollection.
Thus in my opinion one must be careful to ascertain which of the additional factors relied upon in any particular case requires a full warning that it would be dangerous to convict unless after scrutinising the evidence with great care the jury were satisfied of guilt. A full warning is required where the evidence is, for example, that of an accomplice or has been given after, say, a twenty year delay, but it is not every circumstance about which counsel has made critical comment of the prosecution case which calls for such a warning. Ordinarily circumstances calling for a full warning must arise out of factors "which may not have been apparent to the jury and which therefore required not merely a comment but a warning": Longman at 91. The point was reiterated in some detail in Miletic, which would seem to have had the approval of the High Court in Crofts by reason of its frequent citation in that case; at the least no aspect of Miletic was criticised by the High Court. The distinction was drawn in these terms in Miletic at 604:
"The circumstances that might have been the subject of comment were such as the jury could evaluate for themselves but the factor requiring a warning was one the full significance of which might not have been apparent to laymen unfamiliar with the way in which a criminal trial is prepared and conducted."
At p.605 the Court referred to the need for directions in particular to classes of case, for example, where the evidence of an accomplice is adduced, but as to the other categories, as yet undefined, it said (at 605):
"But such rules should not be unduly expanded. A trial judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Though there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice."
The Court continued by referring to a number of aspects of that principle:
"First, we emphasise the words 'necessary and practical' and 'perceptible'. A perceptible risk is one that is real or of substance, as opposed to a risk that is insignificant or theoretical. Secondly, we are speaking of directions that require the authority of the judge's office. The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel."
Finally, at p.606, the Court drew a distinction "between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge", referring to Bromley v. The Queen (1986) 161 C.L.R. 315 at 324-5 and Carr v. The Queen (1988) 165 C.L.R. 314 at 330: (although cf. McKinney v. The Queen (1991) 171 C.L.R. 468). It continued (at 606):
"Appellate intervention is more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury."
That would appear to be the basis upon which a trial judge may ordinarily test the need for a full Longman warning.
I venture to suggest that, if some such criterion is not maintained, then there will be a concatenation of a different kind, namely a concatenation of warnings repeating the minutiae of counsel's arguments. As defence counsel catalogue the variety of "special" circumstances seen by appellate judges (including, I confess, myself) as requiring warnings in particular cases, so trial judges will retreat to the safety of issuing Longman warnings for every such circumstance and every faintly analogous circumstance, making "clear the caution to be exercised in the light of those circumstances": Robinson at [26]. Juries will not be left to resolve ordinary though serious issues of fact about which they must be and are always told to be satisfied beyond reasonable doubt. Instead they will become "punch-drunk" with a miscellany of indiscriminate warnings in trials of sexual offences, such as will suggest, as before, that a complainant's testimony is indeed unreliable. Since the issue seems only (or almost only) to arise on trials for sexual offences (and appeals therefrom), the impression might be given, if the distinction emphasised in the preceding paragraph is not maintained, that judges are again, by a back door, treating complainants in such cases as ordinarily unreliable witnesses, thus prompting yet another bout of statutory amendments. Bearing in mind that the jury is the constitutional body entrusted with the duty of resolving issues of fact in criminal trials, it can only be where principle requires additional instruction to the jury that it is proper to interfere further with that function. Of course, the desirability of the judge making appropriate comments about matters such as are described in Longman at 90-91, where the justice of the matter requires, is another matter.
(c) The need for Longman warnings at the trial
In the present case it is by no means obvious that the various circumstances relied upon by the applicant required a full Longman warning, although there can be no doubt that, having regard to the necessity for the jury to be informed that there may be good reasons why the complainant might delay or hesitate in complaining about the alleged offence, there was a clear necessity for a counterbalancing comment in strong terms about the complainant's delay in making that charge. As to the prejudice that was said to have arisen from the delay in making the allegation, a number of difficulties arose for the applicant to which the learned judge drew attention. As matters stand I would not necessarily consider a delay in the order of three years as requiring a Longman warning, but the other special circumstances upon which the accused relied gave rise to the need for such a warning in this case. Whether the trial judge gave such a warning or made other appropriate and sufficient comments as to the consequences of delay is now a matter of contention on this application.
It seems that the learned trial judge willingly accepted the need for a Longman-type warning, primarily because of the delay, the badgering of the complainant by her father and the fact that there was no confirmatory evidence. He drew attention, inter alia, to the passing of nearly three years before the complaint was made, the loss by the police of the capacity to investigate the complaint properly, the loss by the applicant of an opportunity to establish facts which might have helped his defence (e.g. from the complainant's mother), the fact that the complainant made no contemporaneous statement, and the fact that she was four years older by the time of trial. The last two facts in particular meant that there was a risk that her emotions or imagination may have rendered her recollection inaccurate. For myself I would not think that this effect of delay and its potential detriment to her credibility took the case beyond the ordinary consequences of any significant delay in making complaint, allowing for the fact that delay was dealt with appropriately from the viewpoint of the accused, inasmuch as the necessary balancing remarks were heavily tilted in favour of the applicant. However, the trial judge saw it necessary to give Longman-type directions on the general question of the effects of delay between the alleged offence and the making of the allegation as possibly prejudicing the applicant's fair trial. Those effects on the conduct of the applicant's defence were fairly described in the judge's charge. In these circumstances I would not disagree with his assessment of the case as a whole for he was present, heard the evidence and was best able to assess the manner in which that evidence was given and its apparent effect. I would therefore accept that there was a need to give appropriate directions of the kind contemplated by Longman. However, the circumstances of the delay cannot be compared with those in Longman and I would not encourage trial judges to see a need for directions of the Longman kind in relation to a three year delay unless they perceive some aspect of that delay which takes it outside ordinary human experience. Conceding that it will be the justice of the case which will ordinarily dictate what should be done, a proliferation of warnings may be counter-productive leaving the jury unable to concentrate on the dangers of evidence which could be truly prejudicial.
The other aspect of the case which the applicant said required a Longman-type direction was the series of circumstances by which the complaint came to be made by the complainant and in particular the extensive detailed and gruelling questioning by her father before that complaint first came to light. There is no doubt that these circumstances are, to a degree, unusual in that they would in the ordinary course of events have provided reason why the jury should have hesitated in concluding that the applicant was guilty of the offence charged. The question, however, is whether a full warning of the type described in Longman (at 91) had to be given. The circumstances, of course, bore also on the issue of delay in making complaint in respect of which the balancing warning (or "informing") required by statute had to be and was given. But it was fairly contended that the circumstances leading to complaint, as opposed to mere delay, were sufficiently out of the ordinary to require a warning in the light of the fact that there was no other person present at the time of the incidents which were alleged against the applicant. I take leave to doubt that they were of the kind which require a warning. The issue in each case, outside the recognised categories which have been thought to satisfy the test, is whether those circumstances are outside the ability of a jury to assess for themselves, at least with the benefit of counsel's addresses, and where the full significance of those circumstances may be more apparent to the judge than the jury: Miletic at 606; R. v. J. [No. 2] at 636: cf. Robinson, where the jury had the benefit of only a three minute address by counsel for the accused: at para.[10]. It was said in Miletic at 606: "It is only in exceptional cases that a warning is required", those circumstances ordinarily being such that a jury could not evaluate them for themselves because of the effect "might not have been apparent to laymen unfamiliar with the way in which a criminal trial is prepared and conducted": Miletic at 604. Those circumstances in the present case were, as I have said, unusual and might tend toward the manufacture of untrue allegations to satisfy the father's obsessive questioning, but were they facts or circumstances which a jury in this case could not appreciate for themselves and were they circumstances about which a judge would have any special knowledge which would require a warning of the kind prescribed in Longman? Doubtless from time to time judges come across allegations invented as a result of pressure from relatives or friends but there is nothing to my way of thinking about a judge's knowledge of such allegations and their effect which would be outside the range of knowledge which could fairly be attributed to a group of twelve people in a jury room. Nor do such allegations pose problems for a jury the significance of which might not be apparent to the extent that would call for a Longman warning. The only danger, which I would see, other than that which is apparent, would be that which flowed from delay which might properly be the subject of a Longman warning and which indeed was the basis upon which the majority there held it to be necessary.
When one examines the very fair and detailed criticisms of the circumstances leading to the complaint which the judge expressed, the content of which did not, as I understand it, excite any criticism during the trial, then the factors drawn to the jury's attention were those which were more than apparent from the course of evidence and which were relied upon with some vigour at the trial.
Nevertheless, the learned judge again sought to give a warning in relation to these matters. He thought that some warning was required even though I cannot discern why he thought that satisfied the tests to which I have referred. Doubtless, in a careful charge, those circumstances ought fairly to have been mentioned by way of comment but the Longman-type warning ordinarily should be reserved for cases where a jury does not have full appreciation of the consequences of the particular defect or where judicial experience in general extends significantly beyond that of lay persons forming a jury. However, for present purposes I should accept that the judge saw something in these circumstances which required him to give a warning of a suitable kind to the jury.
(d) Examination of directions given at trial
It is now necessary to return to the learned judge's charge to the jury and the issue whether that satisfied the requirements in law of a proper and sufficient charge as to the matters raised on this application. As I would understand it, the applicant's argument is not directed so much to the content of each aspect of the learned judge's comments about the complainant's evidence so much as to the form in which each of those comments or warnings were expressed. Thus, it is not said that the various effects of the delay in making complaint were not pointed out to the jury, nor was there any failure to advert to the risks of accepting an allegation resulting from the constant pressure by the complainant's father. Rather it is said that notwithstanding those comments the learned judge failed to bring to the jury's attention the seriousness of those defects and failed to convey to them a warning that it would be dangerous to convict unless, having scrutinised the evidence with great care, they were satisfied of the truth and accuracy of the complainant's allegations. The twenty-year delay in Longman certainly prompted the majority in the High Court to lay down that a warning in those terms was there necessary and I confess to having been party to two judgments in which a strict view of the requirements was emphasised: see the joint judgment in R. v. Young at 408-409 and my brief judgment in R. v. Jolly [1998] 4 V.R. 495 at 496-497. Those cases each arose out of brief and peremptory "warnings" uttered without any real or apparent conviction as to their necessity, so that it may be that I expressed myself in too wide terms having regard to the oft-stated proposition that no particular formula is required: cf. Longman at 86 and McKinney at 475.
In each case, however, what is under consideration forms part of the judge's charge to the jury and the strengths and weaknesses of each charge must be considered in the light of how the jury might fairly have been influenced by what the learned judge said to them. The significance of the directions ought to rest more on how the jury would perceive and understand what was said to them rather than from a mere examination of the formal words contained in the transcript. Although one must assume that a jury will accept what a judge says to them by way of direction, the overall effect of a charge, and each part of the charge, cannot be overlooked. That is of course one of the reasons why the lack of exception is often seen to be important; more especially is this so where the exception relates to the use of evidence as opposed to the analysis of the constituent elements of a charge. Here, the fact is that, notwithstanding that each of the matters as to which criticism is made as to the form of the charge was examined in some detail and in terms strongly critical of the Crown case, it is the form of the direction and warnings which has now excited criticism, notwithstanding that no exception was taken to any part of the charge and notwithstanding that no objection was originally made on this application to the learned judge's handling of the general consequences of delay.
To my way of thinking the failures of both an experienced trial barrister and an experienced senior counsel to observe these apparent defects suggest to me that the tone of his Honour's charge was sufficiently critical of the prosecution case to satisfy the requirements that the courts have laid down in cases such as Longman and those referred to above: cf. Miletic at 605, and R. v. J. (No. 2) at 638 (and fn.11) per Callaway, J.A. The difficulty is that the form of the warnings and directions may on one view fall short of what was required. Did the learned judge lend the stamp of his judicial authority to his criticisms of the Crown case or must they all be treated as mere comment which, according to his earlier instruction, the jury were left free to accept or reject without further constraint? I have had the benefit of reading in draft form the judgment of Callaway, J.A. in which he has concluded that there was an essential failure to observe the requirements laid down in the authorities. As a result I have found it exceptionally difficult to reach a final conclusion, having changed my mind on a number of occasions. Regrettably, I have ultimately come to a different conclusion, but only after again examining the transcript of the charge in great detail, not only to see what was in fact said but also in an attempt to ascertain what is so difficult in an appellate court, namely, how the judge's instructions would have been perceived by the jury.
It is impossible to set out the whole of the charge or even the whole of the learned judge's directions as to how the jury should examine the various classes of evidence and the conclusions I have reached flow ultimately from a reading on a number of occasions of the whole of that charge. However, some detailed examination, tedious though it may seem, will be required. In the end the issue will be whether the judge's observations on the matters raised on this application were properly to be characterised as mere comments on the evidence or whether they went further so that they were properly to be seen as part of his instructions to the jury on matters of law, even if they were not all couched in terms of "warning".
The structure of the learned judge's charge was formed on familiar lines in that, after some opening general observations, he then turned to matters of law before summarising the evidence and finally counsel's arguments. Members of the jury would not ordinarily be familiar with such a structure, unless they had been told, but the remarks here under consideration clearly came in that part of the charge which followed immediately after his analysis of the elements of the charge and where his Honour described how the jury should deal with particular classes of evidence relating to the credibility of the complainant.
Thus, the learned judge, early in his charge told the jury that he would direct them as to the elements of the offence, "inform you of certain other matters" and then sum up the evidence. They were to "take the law" from him without question, but "other than that I have nothing at all to do with the verdict in this case". There followed some description of the categories of evidence adduced and how the jury ought to deal with each category over some ten pages. So he dealt with how to assess the veracity of particular witnesses, the need to examine the whole of the evidence and his role in referring to that evidence. He explained that "if I make comments then they are only my comments". "If you do not find them of assistance then you should disregard them", but "what I say to [you] about the law is binding on you. But what I say about the facts or the evidence is not." They should not seek to guess what his view of the facts might be for they were "the tribunal of fact".
The learned judge then proceeded to give directions as to the need for a unanimous verdict, the burden of proof resting on the Crown, the drawing of inferences and the effect of the applicant's decision to give evidence on oath. In substance each of these legal directions was introduced by words such as "can", "cannot", "must" or "should", or words to like effect, depending on the subject, occasionally but very rarely interspersed by observations on what "the law" says. The next part of the charge dealt with the judge's directions as to the elements the Crown had to prove in order to establish guilt. These were carefully and simply stated and were related to the evidence given. He then returned to what he said was the real issue, namely whether what was alleged by the complainant occurred and as to that he repeated that "for you to convict the accused you must be satisfied beyond reasonable doubt that it did [occur]". He told the jury that "it would be a mistake" to decide the case on the basis of whose story they believed, for the real issue was whether "you are satisfied beyond reasonable doubt" that the Crown had proved the charge. He told them that the accused did not have to prove anything and it was from that "point of view … you must always approach the evidence".
It was following these observations that the learned judge led into the discussion of the matters in issue on this application. He referred to the fact that there was a "sharp conflict" of evidence so that, unless the Crown satisfied them to accept the evidence of the complainant and to reject the applicant's evidence "you cannot convict the accused". "In other words, before you could convict you would have to reject beyond reasonable doubt as a possibility the truthfulness of the accused's evidence …". It was at this point that he told the jury:
"It is important to apply that logic with great care because the only two witnesses who can give direct evidence of the matter are the accused and the complainant."
It was immediately following that sentence that he made the observation so greatly criticised, as follows:
"As a matter of logic, fairness and commonsense, if you like, it is obvious where you have a situation of oath against oath, it can be dangerous to convict without the presence of some other evidence that supports or confirms the accuser's evidence. That is evidence independent of [the complainant] who is making the complaint, that supports her evidence – not only that the crime was committed but the accused committed the crime."
Having then referred to two "reasons for caution" as being a risk that a complainant may be motivated by some hidden reason and that that person may be a more convincing witness though giving a false account, he quickly returned to the general theme in these terms:
"Therefore, it is commonsense that because of the potential for error there is a great necessity for the jury trying such a case, where the evidence depends upon an unsupported or non-confirmed version of the complainant's evidence, to subject the complainant's evidence to close and thorough scrutiny before being prepared to act on it. But if, after giving the complainant's evidence close and thorough examination, you are satisfied as to its truth and accuracy, then of course you may act on it and convict but only after that examination and when you are satisfied beyond reasonable doubt of the guilt of the accused."
Then his Honour described the nature of supporting or confirming evidence in what are now conventional terms, referring to "the nature of the evidence required". He concluded this aspect of the charge by saying that there was no independent evidence supporting or confirming the complainant's version and so "in the absence of such supporting and confirming evidence you should subject her evidence to close and thorough examination and scrutiny and, if, after having done so, you are satisfied of its truth you may then act upon it."
In the present case it is the overall effect of what the judge said in the course of his charge which must be considered. The precise language adopted may not have satisfied the more stringent terms of what is required in a true Longman warning but, apart from questions as to whether such warnings were in fact necessary in this case, I have in the end come to the conclusion that what the judge said about each of these matters was sufficient. There were a few occasions when the judge, perhaps incautiously but nevertheless accurately, introduced some of his observations by using the word "comment". That he was entitled to do and in my opinion he was simply making clear, in the course of what effectively were directions as to the use of particular kinds of evidence, that part of the charge which was merely comment on the facts. If anything were to be inferred, I would infer that what was introduced with the word "comment" was so introduced to distinguish that sentence or few sentences from the instructions he was otherwise giving the jury. As to each class of evidence, nevertheless, he was essentially directing the jury in what were apparently mandatory terms as to the manner in which they should approach that evidence. The "caution" and the warnings were perhaps stronger at the beginning of the ten pages in question than towards the end. That, I consider was largely the result of his choosing first to discuss what flowed from the fact that the case depended essentially on the evidence of the complainant alone. That factor, as I would understand the reasoning in Longman and the other cases, cannot in itself ordinarily require the giving of a Longman warning. To do so would effectively subvert the intent and purpose of s.61, so that warnings on that issue, if not clearly related to other bases justifying Longman-type directions, might appear to suggest that the courts were still viewing complainants in sexual cases as witnesses whose truthfulness ought to be doubted, the very factor which might, if it were true, suggest that complainants in these cases were still being treated with unfair suspicion by the law.
If there be an unsatisfactory aspect of the learned judge's charge in this case, it was that he chose to deal with this kind of conflict of evidence and the need to treat the complainant's evidence with great care as the first of the items upon which he chose to give Longman-type directions. Apart from the fact that he did not repeat the kind of warnings in precisely the same terms thereafter in relation to the other claimed weaknesses in the evidence, I cannot see any other harm resulting from his choice of order. Perhaps its relevance to each of the other claimed defects may have led to this issue being addressed in the first place. Preferably, the warning as to the absence of any witness other than the complainant should have followed the directions as to each of the other categories of impugned evidence. In substance it is the combination of factors which leads to the need for a Longman-type direction. As I would understand the relevant cases the condition precedent for a Longman-type direction flowed from the discussion in that case of the effect of sections such as s.61 of the Crimes Act. Thus as the majority stated in Longman at 90:
"The question which arose … 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."
As I would see it, unless there be special circumstances, it does not follow that a long delay in making complaint necessarily will lead to the need for a Longman warning if the Crown case (of whatever kind) is supported by a number of witnesses or is also a circumstantial case, inasmuch as the problems there may not be of the same order as where a stale case rests upon the evidence of a single witness.
Nevertheless, in considering the whole of the learned judge's charge in this case one is entitled to look at the way in which he introduced these matters, in particular, having introduced this group of factors, by dealing with the way in which the evidence of an uncorroborated complainant should be approached by the jury. That is why I set out above in some detail the opening part of that stage of the judge's charge where he commenced by telling them that they could not convict the accused unless they were able "to reject beyond reasonable doubt as a possibility the truthfulness of the accused's evidence". From there he referred to the fact that, as it was a case of oath against oath, it could be "dangerous" to convict in the absence of other evidence which supported or confirmed the complainant's evidence. Objection was made that this was introduced by the words "as a matter of logic, fairness and commonsense". I cannot accept that those words connoted that his Honour was merely making a comment or that what he was saying to them did not reflect the law or was not something which he was bound to tell them and which they were bound to observe. Parenthetically one might hope that matters of logic, fairness and commonsense would not automatically lead a jury to believe that what they were then being told was not part of the law or lacked legal sanction. Indeed, one would hope that the jury's impression might be the opposite and that what the judge was doing, in this case at least, was emphasising to them that the law was sensibly requiring caution in such circumstances.
As to the argument that expressions of this kind should be contrasted with the judge's use of words such as "as a matter of law", it should be remembered that, in relation to the topics said to require Longman-type directions, the judge's use of expressions referring to the "law" came a good deal later in that part of the charge, indeed so much later that one would doubt that the jury would recall that it had not been used in relation to these earlier directions relating to supporting evidence, delay and the like. In fact, reference as to what "the law" said did appear earlier in the judge's charge, but on no more than three or four occasions over thirteen pages of directions, where it would be apparent, having regard to the nature of the matters the judge referred to, that he was directing them as to what they should do as a matter of law without the need to repeat that expression on more than a very few occasions. At all events, I would conclude that the jury would be well able to distinguish between those directions where the judge was telling them what they should do and those where he was making a mere comment. His use of terms importing mandatory obligations, such as "must", "should" and the like, would not have been misunderstood by the jury. If his use of those terms did not connote obligation, then that would be the very kind of matter which counsel at the trial might well have picked up, so that I would infer that the tone of the judge's voice in expressing these obligations to the jury would have made his intentions clear enough.
So also it might be said that the use of the expression at this early stage "it can be dangerous to convict" rather than it "is" or "would" be dangerous to convict is likewise of no real significance, if the judge's intentions were otherwise made clear. Though the use of absolute terms might be preferred, the apparent distinction would not have detracted from the overall significance of what the judge was saying. Likewise it might be said that the danger was there related only to the absence of some other evidence supporting or confirming the complainant, where it was also essential to emphasise the need to scrutinise the evidence closely. That, however, is of little significance when it appears that some three or four sentences later he pointed out that because of the "potential for error" there was a "great necessity for the jury … to subject the complainant's evidence to close and thorough scrutiny before being prepared to act on it". He further emphasised that they might only act on it after that examination and when satisfied beyond reasonable doubt of the accused's guilt. Taken together, I would treat that as as firm a warning, of the kind which satisfied the test in Longman and the later cases, as fairly could be required, albeit at this stage his Honour was referring only to the fact that there was a lack of evidence supporting or confirming that of the complainant.
It may be conceded that the questions of delay and the like did not result in directions expressed in precisely the same terms, but in my opinion the relationship between one and the other was obvious when one has regard to the fact that the delays and the question of the constant badgering by the complainant's father went only to this very same question, namely, whether the jury should act upon the unconfirmed or unsupported evidence of the complainant in this case. Everything thereafter as to the examination of the evidence was expressed in mandatory terms, except where what the judge was in fact doing was making a comment upon the evidence in terms where he made clear that the jury retained its unqualified power to find the relevant facts. Page after page is filled with what the jury had "got" to do, what it "should" do, what it had to "take into account", what it could "not ignore", what it had to "have regard" to, what "needed" to be examined, what it had to "evaluate" and what "should be carefully and thoroughly examined", being the words adopted by the learned trial judge when describing how the jury should approach the "extreme and relentless pressure" from the father when considering the worth of the complainant's evidence. Although I have had my doubts, a reading and re-reading of the charge as a whole has led me to conclude that the judge was clearly enough telling the jury what they were obliged to do and how they should approach this evidence, which might in a number of ways so carefully described by him detract from the value of the unconfirmed complainant's story.
In my opinion, therefore, the directions given by his Honour were more than sufficient to satisfy the spirit and intent of the principles laid down in Longman and the other cases to which I have referred. In any event it cannot here be said that any of the claimed errors resulted in any miscarriage of justice. The ground is not made out.
(iii) Whether prosecution wrongly raised complainant's absence of motive to lie
Finally, by way of the third ground added during the hearing, the applicant made specific complaint about cross-examination which was said to be contrary to the decision in Palmer v. The Queen (1998) 193 C.L.R. 1. The principle in question would hold that no question can legitimately be asked in cross-examination of the accused to the effect that he or she cannot suggest a motive for a complainant to lie. Argument took place as to the precise ambit of the rule, especially having regard to the criticism to which the judgment of the majority has been subjected. Certainly the principle does not require that, where the complainant's motives have in fact been attacked, the Crown may not seek by questions in either re-examination or cross- examination of other witnesses to show that those imputations were false. However, in the present case the issue goes to one very small aspect of the evidence raised by one brief passage of cross-examination at p.139 of the transcript. The three questions and answers took this form:
"Q:
Up until the time you last spoke to her on the phone, you had, putting aside any sexual questions, you had given her no reason to be malicious towards you or nasty towards you? --- Not that I know of, no.
Q:
You didn't abuse her verbally or anything like that or do anything to her of a nasty kind, did you? --- Not that I know of, no.
Q: You had not, in any way, as far as you knew made an enemy of
her, is that correct? --- Not that I know of."
It was said that these questions were, on a proper characterisation of their effect and nature, questions which in truth asked the applicant whether he knew of any motive on the part of the complainant to lie. I cannot accept that that is so. They are specific questions in the sense that they go to aspects of the parties' relationship which was seen to be relevant to the complainant's change of heart inasmuch as she sought later to make the relevant complaints against the applicant. They were not designed to support submissions to the effect that the complainant had no motive to lie. Indeed, a transcript of the final addresses has now been provided to the Court with the concurrence of both parties from which it is clear that no such submission was made, although not surprisingly counsel for the Crown spent almost the whole of his address dealing with the credibility of the complainant.
In the event the issue of motive was well raised in the course of many questions directed to the complainant in the course of cross-examination. It was said to be surprising, having regard to the intense relationship between the parties, that the complainant should turn around and make the complaint in question. So it was said that it was not by her choice; rather it was forced out of her by her father in circumstances where one could not be satisfied that her answer was one merely to stop the badgering and intense questioning of her father. These particular questions were directed to showing that the complaints arose out of an unwilling revelation of true information rather than a malicious concoction of the kind suggested by the defence case. So each of the questions was directed to that relationship which existed immediately before the intervention of the complainant's father and was merely intended to show that before that time there was no malice or dislike or enmity such as might engender the making up of the allegations in the way the defence had suggested.
Having regard to the purpose of this questioning, and having regard also to what appears in the last sentence of paragraph 7 on p.7 of the report in Palmer, the questions were legitimate. They did not give rise, nor could they have given rise, to the prejudicial effects sought to be obviated by the rule laid down by the majority in Palmer.
(iv) Conclusion
It follows that I would reject each of the grounds put forward on behalf of the applicant and thus his application should be refused.
CALLAWAY, J.A.:
I gratefully adopt the statement of facts and issues in the reasons for judgment prepared by my brother Ormiston. I agree that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offence with which he was charged. They were entitled to believe the complainant's evidence. The telephone conversation mentioned in [27] was particularly significant. The complainant said that the applicant asked her whether she had told her parents about "what he did to me in the back room", to which she replied that she had not told them. The geography of the house makes it clear that the quoted words referred to the charged incident. If the jury accepted the complainant's account of that conversation, it completed the explanation for the lapse of time between the offence and her complaint and, in particular, why her father's relentless questioning did not elicit the relevant accusation until August 1996. (It did not, however, mean that no Longman warning was necessary, for the judge could not know whether the jury would accept that the conversation took place. The applicant denied it in cross- examination.) Ground 1 is not made out.
Ground 2 refers to "all the relevant matters which gave rise to the need for a Longman direction" but, in response to a question from the Bench, Mr. Woinarski stated that the only matters relied on were those in sub-paragraphs (a) to (e) of paragraph 1 of his outline of submissions, which is paraphrased in [21].
The first question is whether any of those matters required a binding direction in the light of the authorities which draw a distinction between matters that are well within the experience of a jury and matters the significance of which is likely to be more apparent to the judge. The former are unlikely to give rise to a perceptible risk of miscarriage of justice in the absence of a judicial warning. The latter may well require such a warning. The distinction is not confined to Longman warnings. See, for example, Bromley v. R. (1986) 161 C.L.R. 315 at 324-325; Carr v. R. (1988) 165 C.L.R. 314 at 330; R. v. Campbell (unreported, Full Court, 14th November 1994) in the passage quoted by Southwell, A.J.A. in R. v. Latina (unreported, Court of Appeal, 2nd April 1996) at 10; R. v. Miletic [1997] 1 V.R. 593 at 606; R. v. King (unreported, Court of Appeal, 28th August 1996) at 3-7; R. v. Bang [1999] VSCA 46 at [20-22] and R. v. Maple [1999] VSCA 52 at [15].
In the majority of cases, the former class of matters warrants at most a comment by the judge and it is only the latter which requires a direction with the authority of the judge's office. In R. v. J. (No. 2) [1998] 3 V.R. 602 at 635-636 I said:
"The word 'comment' is sometimes used to include a binding direction. See for example, s.61(2) of the Crimes Act 1958, as interpreted by this court in R. v. Miletic. More often, however, a distinction is drawn between a comment by the judge, which the jury are free to reject, and a direction, by which they are bound. Such a direction includes a Longman warning, which was necessary in this case because of the delay between the commission of the alleged offences and their being brought to the attention of the authorities. The position was the converse of that which obtained in R. v. King. The question raised by ground 14 is whether it would have been apparent to the jury that they were being given a direction rather than merely the benefit of a judicial comment.
Before turning to that question, I wish to say something of the significance of the distinction, prefacing my remarks with a passage from the joint judgment in R. v. Miletic: [The passage at 605 line 14 to 606 line 13 was then set out.]
As that passage indicates, the distinction between a comment and a direction stems from the respective roles of the judge and the jury. If there is an aspect of a case that is well within the ability of the jury to assess for themselves, the judge would invade their province and usurp their responsibilities by giving a direction instead of making a comment. (That is not to deny that there may be cases where a comment is necessary in the interests of justice but must then be left with the jury to accept or reject.) The judge is entitled to direct the jury, with the authority of his or her office, only where there is an aspect of the case on which the law has something special to say, as for example where the courts have had long experience in the evaluation of particular kinds of evidence. " (Footnotes omitted.)
See also Jones v. R. (1997) 191 C.L.R. 439 at 445 per Brennan, C.J.
Neither the distinction between a comment and a direction nor the difference between matters that are well within the experience of the jury and matters where the judge has an advantage was in issue in Robinson v. R. [1999] HCA 42. That case therefore casts no doubt upon the Victorian authorities referred to above, which emphasize the primary role of the jury in our system of criminal justice. See also R. v. Arundell (1998) 104 A.Crim.R. 78 at 97.
When the learned judge asked counsel to identify the features of the case that called for a Longman warning, the first factor to which counsel referred was the delay, which, he said, had denied his client "any sensible opportunity of exploring the circumstances of what happened in 1993". Counsel concluded by saying that, in summary, his submission was that there were intense pressures at work which took the case outside "ordinary and common experience", a phrase which reflects an awareness of the line of authority to which I have referred. As in Longman v. R. (1989) 168 C.L.R. 79 at 90-91, it would not have been surprising if several of the matters on which Mr. Woinarski relied had elicited a comment by the trial judge; but, in my opinion, only the lapse of time required a warning and, possibly, the intensity of the questioning to which the complainant had been subjected. See and compare R. v. Young [1998] 1 V.R. 402 at 408-409. I do not accept the respondent’s submission that no warning at all was required. Sometimes a three year delay would not be enough, but the learned judge considered that it was significant in the circumstances of this case. I would not differ from his assessment. The only question is whether a binding direction was given.
The charge was very fair indeed to the applicant and the jury were given a great deal of assistance as to the way in which they should go about evaluating the complainant's evidence. The difficulty, in my respectful opinion, is that it was not brought home to them that they were bound by his Honour's directions, even on the subject of delay. The fairness of the charge in other respects is, of course, no answer if that is so: compare BRS v. R. (1997) 191 C.L.R. 275 especially at 306.
At the beginning of the charge the learned judge explained that his duty was to preside over the trial, to rule on any questions of law that might arise, to see that the trial was conducted according to the rules of procedure and evidence, to direct the jury as to the elements of the offence, to inform them of certain other matters and to sum up the facts of the case. It was their duty to take the law from him without question because, if he erred, that could be set right on appeal. A little later his Honour said that their task required the application of ordinary commonsense to the evidentiary material before them and that it was for the jury to say what conclusions should be drawn from such of the facts in evidence as they accepted as being correct. A little later again, his Honour said:
"Again, the law permits me to make comments on the evidence and on the facts of this case. Let me make it plain to you that if I make comments then they are only my comments. They stand on the same plane as comments made to you by counsel whether it be counsel for the prosecution or counsel for the defence. If you find any such comments helpful then you may use them because they appeal to you and you see fit to adopt them as your own. If you do not agree with them, if you do not find them of assistance then you should disregard them. They stand in an entirely
different position to what I say to you about the law. What I say to [you] about the law is binding on you. But what I say about the facts or the evidence is not." (Emphasis added.)
The passages summarized and quoted in [96] , especially the last sentence, are to be remembered in evaluating the part of the charge that is said to have constituted a Longman warning. They controlled what followed. The jury would have remembered that anything described as, or amounting to, a comment was not binding, that the judge's authority was limited to matters of law and that it did not extend to anything he said about the facts or the evidence.
After repeating and emphasizing the burden and standard of proof, his
Honour said:
"It is important to apply that logic with great care because the only two witnesses who can give direct evidence of the matter are the accused and the complainant. As a matter of logic, fairness and commonsense, if you like, it is obvious where you have a situation of oath against oath, it can be dangerous to convict without the presence of some other evidence that supports or confirms the accuser's evidence. That is evidence independent of [the complainant] who is making the complaint, that supports her evidence - not only that the crime was committed but the accused committed the crime.
...
Therefore, it is commonsense that because of the potential for error there is a great necessity for the jury trying such a case, where the evidence depends upon an unsupported or non-confirmed version of the complainant's evidence, to subject the complainant's evidence to close and thorough scrutiny before being prepared to act on it. But if, after giving the complainant's evidence close and thorough examination, you are satisfied as to its truth and accuracy, then of course you may act on it and convict but only after that examination and when you are satisfied beyond reasonable doubt of the guilt of the accused." (Emphasis added.)
There is nothing wrong with referring to logic, fairness or commonsense, so long as it is the law, or a binding direction, that is explained or justified in that way: see [66] above. But here the reference to commonsense implied that the "great necessity" to subject the complainant's evidence to close and thorough scrutiny before acting on it was only a matter of commonsense.
The nature of supporting or confirming evidence was then explained, in order to show that there was none in the case of the complainant. His Honour continued:
"It is only [the complainant] who has given evidence of the subject of this charge and of the other sexual activity. So in the absence of such supporting and confirming evidence you should subject her evidence to close and thorough examination and scrutiny and if, after having done so, you are satisfied of its truth you may then act upon it.
There has been a delay between the time of the occurrence of the alleged offence and the complainant first mentioning it. On her evidence the alleged offence is said to have occurred towards the end of 1993. She first mentions it in August of 1996, nearly three years later and this was to her father. A number of comments ought to be made about this delay: ..." (Emphasis added.)
There followed a thorough explanation of the ways in which delay might be important, including the applicant's having lost the opportunity, if he so wished, to establish facts and circumstances contrary to the Crown case. At no stage, however, were the relevant parts of the charge elevated above the level of comments, which the jury had earlier been told they could ignore. The phrase "paying heed to [this] warning" in Longman's Case at 91, which is not indispensable but helped to save the charge in R. v. J. (No. 2), was not used. The jury would have been entitled to think that the passages I have quoted and the comments that followed were non-binding observations "about the facts or the evidence", especially as, immediately thereafter, directions expressly described as directions given "as a matter of law" were given about proximate complaint, uncharged acts and the evidence of the applicant’s and the complainant’s sexual relationship in 1996.
It is of the essence of a Longman warning that it be given with the authority of the judge's office. The jury must understand that it is not a comment on the level of counsel's arguments, but a direction that is binding on them. Compare, in the context of a Domican direction, R. v. Heuston (1995) 81 A.Crim.R. 387 at 394-395 including fn. 39. Judges sometimes explain the division of labour by saying that it is their duty to instruct the jury as to "the law" and the jury's province to decide the facts, but that simple distinction does not always make it clear that warnings and directions are binding. Sometimes the difficulty is overcome by saying that the Longman warning is "a legal direction", as in R. v. McKellin [1998] 4 V.R. 757 at 761, or words to that effect; but the danger of misunderstanding would be greatly reduced if it were explained at an early stage of the charge that the jury are bound to comply with any warnings or directions they are given, as opposed to mere comments on the facts.
The word "comment" should be avoided when giving a warning or other direction, but whether it is fatal depends on the context. I respectfully agree with Ormiston, J.A. that the question is whether the charge as a whole, as a matter of substance, conveyed a warning with the authority of the judge's office. A charge is an example of oral English: see R. v. Yates [1970] S.A.S.R. 302 at 306. That is one of the reasons why counsel's impression at the trial is important. Often the jury will appreciate that what is being misdescribed as a comment is in truth a direction, as in R. v. J. (No. 2) at 632-633 and 637-638, where, although it was acknowledged that a binding direction must be given, the context was sufficient to save the charge. In the present case, however, there was no saving context. On the contrary, the earlier and later parts of the charge would have reinforced the impression that these were indeed comments. They were helpful and to the point, but they were not made with the authority of the judge's office.
It follows that, having recourse to the statutory language as the High Court has encouraged us to do, although -
(a) the verdict should not be set aside on the ground that it was unreasonable or could not be supported having regard to the evidence; and
(b) the judgment should not be set aside on the ground of a wrong decision of any question of law,
there was a miscarriage of justice within the meaning of the third limb of s.568(1) of
the Crimes Act 1958.This was a case of oath against oath. The question whether the Crown had proved the applicant's guilt beyond reasonable doubt was finely balanced. The jury at one stage said that they had "reached a deadlock", in response to which his Honour gave them a Black direction. The learned judge said in his report that he himself would not have convicted the applicant. In the two-stage inquiry in which this Court engaged in R. v. Konstandopoulos [1998] 4 V.R. 381 at 391-392 and the High Court engaged in Fleming v. R. (1998) 73 A.L.J.R. 1 at [38-39], there was not only a miscarriage of justice but also a substantial miscarriage of justice. In written submissions counsel for the respondent has referred to the absence of exception. That is often of great importance but it does not overcome the difficulty here : see and compare KBT v. R. (1997) 191 C.L.R. 417 at 423-424 and 433-434.
I have not referred to s.61(1)(b) of the Crimes Act 1958, but I should say that I perceive no tension between the statutory requirement to inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it and a warning of the kind described in Longman's Case at 91. They are directed to different topics: see, for example, Robinson v. R. at [19]. Moreover, the information required to be given by s.61(1)(b) relates to victims generally. A Longman warning applies to the facts of the instant case. Finally, a complainant may be mistaken about what occurred, particularly after a passage of many years. To that extent a Longman warning does not go to credibility at all except in the widest sense of that word.
My conclusion on ground 2 makes it unnecessary for me to consider the last ground. I simply mention one part of the quite extensive argument that was directed to Palmer v. R. Mr. Woinarski submitted that the last sentence of [7] in that case was an hypothesis which Brennan, C.J., Gaudron and Gummow, JJ. proposed for consideration but rejected in the next three paragraphs. I do not think that submission is correct. The last sentence of [7] is consistent with the conclusion expressed in [9], namely that absence of evidence of motive is entirely neutral. Their Honours were earlier explaining that the same could not be said of evidence of absence of motive. At least in a case where a specific motive to lie is alleged, the accused may be cross-examined as to facts within his own knowledge that would tend to disprove that motive.
For these reasons I would grant the application and direct a new trial.
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