R v N, RC

[2012] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v N, RC

[2012] SASCFC 37

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)

18 April 2012

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction - defendant found guilty by jury verdict following trial in District Court of five counts of unlawful sexual intercourse and five counts of indecent assault alleged to have taken place over a number of years, from when the complainant was about five years of age to 13 years of age - where the complainant was a niece of the defendant - where there was significant delay between the time of the alleged offending and the time of trial - where the prosecution case relied on the complainant's evidence.

Whether the Judge failed to give or adequately give a warning, direction or comment about the complainant's evidence, including the reliance on the prosecution case upon her evidence, the assessment of her evidence and the need to scrutinise her evidence with great care - whether the Judge in error in giving the jury a direction pursuant to section 34CB of the Evidence Act 1929 (SA) when that section was not applicable - in the alternative, if such a direction was applicable, whether that given was adequate to avoid a perceptible risk of a miscarriage of justice - whether the Judge failed to adequately direct in relation to the burden of proof and in relation to the evidence given by the complainant's mother - whether verdicts were unsafe and unsatisfactory.

Consideration of the obligations arising from section 34CB of the Evidence Act.

Held (Gray and Sulan JJ): appeal dismissed - section 34CB(1) only abolished the rule of practice known as a Longman warning in the narrow sense - section 34CB(1) does not abolish the duty of a Judge to give a direction warranted by circumstances other than delay and does not abolish the power of a Judge to make a comment about any circumstance, including delay - the Judge gave a direction that brought home to the jury the impact of delay upon the ability of the defendant to challenge the prosecution case and the relevant circumstances, this direction being sufficient - Judge gave an adequate direction to the jury to scrutinise the evidence of the complainant, the words the Judge used conveying a judicial imprimatur - the Judge clearly and adequately directed the jury about the burden of proof borne by the prosecution - no error demonstrated in the Judge's summing up on the topic of the evidence of the complainant's mother - verdicts not unsafe and unsatisfactory.

Held (Peek J, in dissent): the appeal should be allowed - a direction to scrutinise the evidence with particular care was required since a conviction depended upon the word of one witness alone – mere agreement with a submission by counsel does not adequately stress the need to scrutinise and nor does it carry the weight of judicial office - Judge’s reference to a submission by counsel not a clear judicial direction.

Directions as to substantial delay required by section 34CB(2) – Judge’s direction failed adequately to explain the nature of the forensic disadvantage – failure to explain that it was a significant disadvantage – failure to bring home to the jury the difficulty the defence faced in testing the complainant’s allegations.

Directions as to significant forensic disadvantage and directions as to scrutinising the evidence of a sole witness with great care should be gathered together in the summing up for the jury better to appreciate their cumulative significance and effect.

Evidence Act 1929 (SA) s 34CB and s 34L(5); Acts Interpretation Act 1915 (SA) s 19(2)(b), referred to.
Azzopardi v The Queen (2001) 205 CLR 50; Crampton v The Queen (2000) 206 CLR 161; R v B [2004] SASC 59; R v Corrigan (1998) 74 SASR 454; Longman v The Queen (1989) 168 CLR 79; Robinson v The Queen (1999) 197 CLR 162; R v Cassebohm (2011) 109 SASR 465; R v Green (2001) 78 SASR 463; Doggett v The Queen (2001) 208 CLR 343; R v Inston (2009) 103 SASR 265; JJB v The Queen (2006) 161 A Crim R 187; R v Nguyen (2010) 242 CLR 491; R v BFB (2003) 87 SASR 278; R v Murray (1987) 11 NSWLR 12; Fleming v The Queen (1998) 197 CLR 250; Bromley v The Queen (1986) 161 CLR 315; Carr v The Queen (1988) 165 CLR 314; Mahmood v Western Australia (2008) 232 CLR 397; Tully v The Queen (2006) 230 CLR 234; R v DRG (2004) 150 A Crim R 496, considered.

R v N, RC
[2012] SASCFC 37

Court of Criminal Appeal:       Gray, Sulan and Peek JJ

GRAY J:

1. This is an appeal against conviction.

2. The defendant and appellant, N, was found guilty by jury verdict following a trial in the District Court of five counts of unlawful sexual intercourse and five counts of indecent assault. 

3. The complainant, the niece of the defendant, was born on 21 July 1977.  It was the prosecution case that the complainant was sexually abused by the defendant from a time when she was about five years of age until she was about 13 years of age.  In all, ten counts of sexual offending were charged. 

4. The first four counts involved conduct occurring at the home of the defendant and his wife at Goolwa. Counts 1 and 2 alleged indecent assault and were said to have taken place on a single occasion at the Goolwa premises.  Count 1 involved the defendant touching the complainant on the vagina and count 2 involved the defendant causing the complainant to touch his penis.  Counts 1 and 2 were said to have taken place between July 1981 and July 1983.

5. Counts 3 and 4 were said to have taken place about two years later and in particular between July 1983 and July 1985.  Count 3 involved an allegation of unlawful sexual intercourse.  This count involved the defendant causing the complainant to perform an act of fellatio upon him. Count 4 involved an allegation of indecent assault, it being said that the defendant performed an act of cunnilingus upon the complainant.  Both counts were said to have taken place at the Goolwa premises.

6. Counts 5, 6, 7, 8 and 9 were all said to have been committed at Waikerie.  The incidents occurred on three separate occasions.  Count 5 alleged unlawful sexual intercourse at a time when the complainant was aged about 11 years.  It was said that the defendant caused the complainant to perform an act of fellatio upon him. Count 6 initially charged an act of unlawful sexual intercourse, and involved an allegation that the defendant had inserted a finger into the complainant’s vagina.  The evidence of the complainant at trial was that the defendant had rubbed her vagina but that there had been no penetration.  The Judge directed the jury that as a matter of law they should return a verdict of not guilty to the charge of unlawful sexual intercourse, but that they should consider whether the defendant was guilty of the alternative offence of indecent assault.  This conduct was said to have taken place between July 1988 and July 1990. 

7. Counts 7, 8 and 9 were said to have occurred on the one occasion at Waikerie between July 1990 and July 1992 at a time when the complainant was over the age of 12 years and under the age of 17 years. Count 7 involved an allegation that the defendant had engaged in unlawful sexual intercourse by inserting a finger into the complainant’s vagina.  Count 8 involved an allegation of unlawful sexual intercourse by the insertion of a finger into the complainant’s anus.  Count 9 involved a further allegation of unlawful sexual intercourse by the defendant causing the complainant to perform an act of fellatio upon him. 

8. Count 10 was said to have taken place in the defendant’s motor vehicle at Victor Harbour between July 1990 and July 1993.  It was alleged that the defendant indecently assaulted the complainant by causing her to touch his penis. 

9. It was the prosecution case that the defendant used opportunities arising from his relationship with the complainant to engage in an ongoing course of sexual misconduct with her.  The opportunities would often arise when the defendant would be caring for the complainant at a time when the complainant’s mother and the defendant’s wife, who were sisters, would be attending social functions.  The conduct commenced when the complainant was about five years of age at times when the defendant babysat her on Monday nights.  It was the prosecution case that apart from the charged acts, there were uncharged acts of sexual misconduct on the part of the defendant.  It was the complainant’s evidence that on occasions when she stayed at the defendant’s home at Goolwa, some form of sexual misconduct would occur.  The defendant would say to her: “it’s our special thing.  It’s just a special secret”.  The complainant gave evidence that at Waikerie, sexual misconduct outside the charged acts would occur in and about the house property.  This would involve touching in circumstances of indecency, both on the clothing and on the skin. 

10. It was the prosecution case that the defendant conditioned the complainant to accept his sexual advances which over time developed from touching to penetration.  The prosecution called evidence from the complainant, her mother, a friend of the complainant, the complainant’s husband and an investigating police officer.  The prosecution case relied on the complainant’s evidence.  It was said that the complainant received some support from her mother’s testimony as to opportunity.  However, the prosecution case was primarily dependent on the credibility and reliability of the complainant. 

11. The jury were informed that it was not a case for the jury to determine which witness they preferred.  It was pointed out that before they could find the defendant guilty on any count, they would have to accept, beyond reasonable doubt, the evidence of the complainant.

12. It was the defence case that the alleged conduct the subject of the charged or uncharged acts had not occurred.  The defendant gave evidence denying any sexual impropriety on his part.  He gave detailed evidence which, inter alia, challenged much of the complainant’s evidence as to opportunity.  The defendant’s evidence was supported by that of his wife.

13. The trial extended over a period of eight days. The allegations of indecency were the subject of direct testimony of the complainant and the defendant. The other evidence went to the surrounding circumstances and that evidence was said by the defendant to substantially undermine the reliability and credibility of the complainant. There had been a long delay between the alleged criminal conduct and the trial. The Judge gave an explanation and direction to the jury in accordance with section 34CB of the Evidence Act 1929 (SA). Following an enquiry from defence counsel, the Judge gave a direction to the jury that they should scrutinise the evidence of the complainant with particular care.

14. In accordance with the Judge’s direction, the jury returned a unanimous verdict of not guilty on count 6 to the charge of unlawful sexual intercourse, however, the jury returned a majority verdict of guilty to the alternative offence on that count of indecent assault.  The jury returned majority verdicts of guilty on all other counts. 

15. The defendant complained on appeal that the Judge failed to give, or adequately give, a warning, direction or comment about the complainant’s evidence, including the reliance on the prosecution case upon her evidence, the assessment of her evidence and the need to scrutinise her evidence with great care. It was further complained that the Judge erred in giving the jury a direction pursuant to section 34CB of the Evidence Act when section 34CB was not applicable. It was contended in the alternative that if a direction was applicable, the direction was inadequate in its terms and content. It was further contended that the direction given was wholly inadequate to avoid a perceptible risk of a miscarriage of justice arising in the case.

16. It was said that the Judge failed to adequately direct the jury in relation to the burden of proof.  It was complained that the Judge failed to direct the jury in relation to the evidence given by the complainant’s mother, including the significance of that evidence in relation to the assessment of the evidence of the complainant and the proof by the prosecution of its case.  Finally, it was contended that the verdicts were unsafe and unsatisfactory. 

    The Appeal

17. Before coming to discuss the particular complaints advanced by the defendant on appeal, it is convenient to first address the principles that govern the nature of directions and warnings to be given by a trial Judge. 

18. A direction or warning is something which the law requires the Judge to give to the jury and which they must heed.  It derives from the special experience of the law.[1] 

    [1]    Azzopardi v The Queen (2001) 205 CLR 50, [49]-[52]; Crampton v The Queen (2000) 206 CLR 161, [125]-[126].

19. There is no rule of law or practice that requires a trial Judge to warn a jury that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim of a sexual offence.[2]  Simply because there is no rule of law or practice requiring a Judge to warn that it would be dangerous to convict on the uncorroborated evidence of a complainant, does not mean that it is never appropriate to give such a direction/warning.  A warning is required whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.[3]

    [2] Section 34L(5) of the Evidence Act1929 (SA). See for example, R v B [2004] SASC 59, [26] and R v Corrigan (1998) 74 SASR 454, 465, which deal with the repealed section 34I(5) of the Evidence Act 1929 (SA), which was in the same terms. In these cases, section 12A of the Act is also mentioned but it deals with the evidence of children. It is therefore not relevant to this case.

    [3]    Longman v The Queen (1989) 168 CLR 79, 86; Robinson v The Queen (1999) 197 CLR 162, [20]. See also the discussion in R v Cassebohm (2011) 109 SASR 465, [17]-[20]; R v Corrigan (1998) 74 SASR 454, 465.

20. A suitable direction must be given where there are potential dangers in acting upon evidence which may not, without the direction, be appreciated by the jury.[4]  In this area, nothing is to be decided by formula or rigid rules.  Whether a direction is called for, and its terms, will always depend upon the circumstances of the particular case.[5]  There is no particular formula and any direction must be balanced to the facts of the case.  The ultimate question is whether the matters requiring caution are adequately brought to the attention of the jury and whether the overall effect of what the trial Judge says is adequate to avoid a perceptible risk of a miscarriage of justice.[6]

    [4]    Longman v The Queen (1989) 168 CLR 79, 90-1.

    [5]    R v Green (2001) 78 SASR 463, [36].

    [6]    R v Corrigan (1998) 74 SASR 454, 466.

21. If a direction should have been given but was not, it does not follow as a matter of course that an appeal will be allowed.  It will depend upon whether the failure to give the warning gives rise to a risk of a miscarriage of justice.  Usually, the failure to give a required direction would give rise to such a risk.[7]

    Section 34CB of the Evidence Act

    [7]    R v Green (2001) 78 SASR 463, [41].

22. The defendant complained on appeal that the particular circumstances of the present proceeding including the forensic disadvantage to the defendant as a consequence of delay, required a Longman[8] warning to be given by the Judge in order to avoid a perceptible risk of a miscarriage of justice. It was further submitted that because of a combination of circumstances, section 34CB of the Evidence Act did not apply, and that the Judge’s purported direction regarding a significant forensic disadvantage pursuant to section 34CB was in error.

    [8]    Such warning taking its name the decision of the High Court in Longman v The Queen (1989) 168 CLR 79.

23. It was the Director’s submission that the section 34CB direction given by the Judge was neither inadequate nor inappropriate. It was said that what was required was a direction that brought home to the jury the impact of delay upon the ability of the defendant to challenge the prosecution case and a direction that identified the particular circumstances that gave rise to that particular disadvantage. It was the Director’s contention that the Judge’s direction met these criteria.

24. The terms of section 34CB give rise to difficult questions of construction. The Court has been assisted by submissions from both parties as to these matters. Before coming to the particular submissions advanced on the appeal, it is convenient to first set out the terms of section 34CB, then the impugned passage in the summing up, and to then address the issues of construction.

25. Section 34CB provides:

    (1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.

    Note—

    See Longman v The Queen (1989) 168 CLR 79

    (2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—

    (a)     explain to the jury the nature of the forensic disadvantage; and

    (b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.

    (3)An explanation or direction under subsection (2) may not take the form of a warning and—

    (a)     must be specific to the circumstances of the particular case; and

    (b)     must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.

26. In Longman,[9] the High Court was concerned with an appeal by a defendant who had been convicted on two counts of indecent dealing with his step-daughter.  A provision of the Western Australian Evidence Act 1906 (WA) provided that on the trial of a person for a sexual offence, the Judge was not required by any rule of law or practice to give a warning to the effect that it was unsafe to convict the person on the uncorroborated evidence of the complainant. The section continued to provide that the Judge should not give such a warning unless satisfied that such a warning was justified in the circumstances. The Court was unanimous that the provision would dispense only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class and did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

    [9]    Longman v The Queen (1989) 168 CLR 79.

27. In Longman,[10] the only aspect of the evidence in the case that required a warning was the issue of delay.  As the joint judgment points out:[11]

    …There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s. 36BD requires) that there may be "good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence". But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court (N.S.W.)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice….

    [Emphasis added.  Footnotes omitted].

    [10]   Longman v The Queen (1989) 168 CLR 79.

    [11]   Longman v The Queen (1989) 168 CLR 79, 90-91.

1. It is the above passage that has continued to be cited with approval by High Court.[12]  As the joint judgment in the High Court decision in Crampton makes plain, the obligation to give the warning is related to delay alone:[13]

   There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court:  the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant’s evidence alone.

   [Footnotes omitted.]  

   [12]   Crampton v The Queen (2000) 206 CLR 161, [39]; Doggett v The Queen (2001) 208 CLR 343, [77], [82] and [121].

   [13]   Crampton v The Queen (2000) 206 CLR 161, [42]. The other members of the court were Deane J and McHugh J. Aspects of their judgment have been the subject of criticism and the point has been made that their observations are not of authoritative force - JJB v The Queen (2006) 161 A Crim R 187, [2]-[4].

2. These High Court authorities pre-date the enactment of section 34CB. The members of the High Court addressed the need for the jury to be assisted by the problems and dangers arising from a long delay between alleged criminal conduct and trial. The members of the Court recognised that if an appropriate warning or direction is not given, a risk of a miscarriage of justice occurring may arise. The approach of the Court also engaged a consideration of the proviso.  It was in this context that the High Court spoke of the need generally for there to be a warning given to the jury about the dangers of convicting in circumstances where there has been lengthy delay.  The members of the High Court expressed themselves in terms that led intermediate courts including this Court to treat the giving of a warning as being mandated as a matter of practice. 

3. In Inston,[14] I summarised the approach taken by this Court following the High Court decisions of Longman,[15] Doggett[16] and Crampton[17] and drew attention to the observations of Doyle CJ in the matter of BFB:[18]

   [14]   R vInston (2009) 103 SASR 265.

   [15]   Longman v The Queen (1989) 168 CLR 79.

   [16]   Doggett v The Queen (2001) 208 CLR 343.

   [17]   Crampton v The Queen (2000) 206 CLR 161.

   [18]   R vInston (2009) 103 SASR 265, [53]-[57] citing R v BFB (2003) 87 SASR 278, 283. The other members of the Court did not consider it appropriate in the circumstances of the case to survey these decisions and the broader issues arising.

   The High Court decisions of Longman and Doggett establish that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed an accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning should be backed by the judge's authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case.

   Further, the judgments of McHugh and Deane JJ in Longman, and the judgment of Kirby J in Doggett establish that substantial delay coupled with such matters as the possibility of distortion, the absence of a timely complaint and the fragility of youthful experience also give rise to the need to give a warning.

   The High Court authorities do not specifically identify when a Longman warning is mandatory. The test to be applied in determining whether or not a warning should be given has been expressed as follows:

   "The issue is whether there is a circumstance in the case that gives rise to a perceptible risk of a miscarriage of justice, and accordingly gives rise to the need for a warning. That will depend on the circumstances of the case, the time that elapsed, and whether the accused is placed at a significant disadvantage."

   The High Court has not prescribed the specific content of the warning if a warning is required. It appears that the warning does not have to be given in particular terms. In Gaulard it was noted that while the authorities use the word "dangerous", the adequacy of a warning is not "necessarily sensitive to whether that [word] is uttered".

   Nevertheless, from Longman, Doggett and Crampton it appears that the content of the warning should be given with the authority of the judge and should include a reference to the fact that by virtue of the delay the accused is unable to adequately test and meet the complainant's evidence, and warning in clear and emphatic terms of the danger of convicting the accused unless the jury is satisfied of the truthfulness and reliability of the complainant's evidence after scrutinising the evidence with great care and after considering the circumstances relevant to its evaluation and paying heed to the warning. The warning must be related to the evidence and must be balanced. The warning may also include, depending upon the circumstances, reference to the possibility of distortion, the absence of a timely complaint and the fragility of youthful experience.

   The need for a warning was reaffirmed by Doyle CJ in BFB:

   "These decisions in turn have received extensive consideration in decisions of intermediate appellate courts in Australia. It appears that trial judges are having difficulty in applying to cases involving sexual offences the principle considered in Longman. Longman and Doggett established that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning must be backed by the judge's authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case."

   [Footnotes omitted.]

4. Given the opinions of the members of the High Court of the need for a warning to be given in the postulated circumstances of lengthy delay, and the risk in the absence of such a warning of a miscarriage of justice, it is to my mind surprising that Parliament would enact section 34CB abolishing the giving of such a warning. It may be understood that a Judge presiding over a criminal jury trial must still be vigilant to conduct the trial in a manner so as to avoid a risk of a miscarriage of justice.

5. In Cassebohm,[19] this Court addressed the scope and reach of section 34CB. The Court considered what is meant in the section by the words “known as a Longman warning”.  Doyle CJ, speaking for the Court, observed:[20]

   I consider that section 34CB(1) must be read as abolishing a Longman warning in the narrow sense of a warning based on the forensic disadvantage to an accused person attributable to the passage of time. Sub-section (2) of section 34CB, which is clearly a qualification on sub-section (1), strongly supports that conclusion. So does the consideration that unless section 34CB(1) is read in that limited sense, it becomes very difficult to know what it is that is abolished. It does not abolish the duty of a judge to give a warning called for by other circumstances, nor the power of a judge to make an appropriate comment.

   [19]   R v Cassebohm (2011) 109 SASR 465.

   [20]   R v Cassebohm (2011) 109 SASR 465, [24].

6. Section 34CB(1) opens with the words “[a] rule of law or practice obliging a judge…to give a warning of a kind known as a Longman warning…”.  A review of Longman and the subsequent High Court authorities discussing Longman confirm that in all probability there was no rule of law requiring the giving of a Longman warning.  The better view is that Longman espoused a rule of practice.  That is, where a warning was called for due to delay, but as the jury might not have appreciated the nature of the forensic disadvantage to the accused, then the failure to give a warning may have led to a risk of a miscarriage of justice.  So understood, such a rule of practice would be consistent with the approach taken by the High Court to other warnings called for by matters that were not obvious to a juror.

7. Section 34CB(2) by its terms obliges a Judge when that Judge is of the opinion that as a consequence of delay between the alleged offending and trial, a significant forensic disadvantage to the defendant has arisen, to first explain to the jury the nature of the forensic disadvantage and secondly, to direct that the jury must take the forensic disadvantage into account when scrutinising the evidence. Section 34CB(3) provides a further consideration. The explanation and direction to be given under section 34CB(2) must be specific to the circumstances of the particular case, must not include the phrase “dangerous or unsafe to convict” or “similar words or phrases” and “may not take the form of a warning”. Although the word “may” is used in the preceding sentence, in its context it would appear to be an obligation.

8. As Doyle CJ observed in Cassebohm,[21] section 34CB(1) only abolished the rule of practice known as the Longman warning in the narrow sense.  The question arises as to the approach to be taken by a trial Judge to a warning that it would be unsafe to convict on the uncorroborated evidence of the complainant by reason of the whole of the circumstances of the case.  The combination may come from a number of circumstances including the nature of the allegations, the age of the complainant at the time of the events, the absence of complaint and delay in the prosecution. 

   [21]   R v Cassebohm (2011) 109 SASR 465.

9. This was the combination of circumstances discussed by Brennan, Dawson and Toohey JJ in Longman.  Their Honours went on to discuss the need for any comment to be fairly balanced.  Their Honours placed particular emphasis on the factor of delay as being a factor that may not be apparent to the jury and to require not merely comment, but a warning.  Deane J also drew attention to the combination of circumstances that in his view called for a warning and in particular his conclusion that the ultimate question is whether in the absence of a warning the applicant’s convictions were unsafe and unsatisfactory.  McHugh J also made reference to the combination of circumstances and emphasised the need for a warning arising from that combination. 

10. The High Court revisited this topic in their decision in Crampton.[22]  Gaudron, Gummow and Callinan JJ referred at some length to the Longman decision, and then observed:[23]

    There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result.

    [Footnotes omitted.]

    Gleeson CJ and McHugh J agreed that the case called for a Longman direction, but did not further discuss the topic. 

    [22]   Crampton v The Queen (2000) 206 CLR 161.

    [23]   Crampton v The Queen (2000) 206 CLR 16, [42].

11. This Court, following this High Court authority, reinforced the need in appropriate cases for warnings to be given and in particular, in the cases of delay for what had come to be termed a Longman warning.  On occasions, this Court had insisted that there needed to be a warning using the words “danger to convict”.  It is against this background that the South Australian Parliament amended the Evidence Act to insert section 34CB.

12. As earlier mentioned, in Cassebohm[24] this Court came to consider the scope and reach of section 34CB. Doyle CJ opened his discussion with the following:[25]

    A consideration of this submission makes it necessary to identify what it is that subs (1) abolishes; necessary to refer generally to certain aspects of the duties of a trial judge in directing a jury; and necessary to consider, in light of that, the extent of the obligation imposed by subs (2).

    Lawyers and judges often refer to a Longman warning. This is a convenient shorthand expression. But the use of that expression can hinder rather than assist the identification of the duties of a trial judge, because it does not identify the content of a Longman warning.

    [24]   R v Cassebohm (2011) 109 SASR 465.

    [25]   R v Cassebohm (2011) 109 SASR 465, [15]-[16].

13. Having discussed the observations of the members of the High Court in Longman, Doyle CJ concluded:[26]

    I conclude that s 34CB(1) abolishes the duty to warn a jury, along the lines indicated in Crampton, by reference to the adverse impact on the defendant's ability to defend a charge, attributable to the passage of time. The duty to warn might have arisen solely from the passage of time or from that, in some cases, other particular circumstances of the case. The obligation arose only when the accused was at a forensic disadvantage attributable to the passage of time. The abolition of that obligation leaves open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay. But a trial judge should not use this as a means of resurrecting the Longman warning in another form. It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person.

    [26]   R v Cassebohm (2011) 109 SASR 465, [28].

14. Doyle CJ then discussed section 34CB(2), observing:[27]

    Section 34CB(2) creates a new affirmative obligation, to be discharged against the background that I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered "a significant forensic disadvantage". This is a decision for the trial judge.

    …

    If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.

    [27]   R v Cassebohm (2011) 109 SASR 465, [29], [31].

15. Having regard to the foregoing, I make the following observations. 

    -A warning that it is unsafe to convict a defendant on the uncorroborated evidence of an alleged victim of a sexual offence is required whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. 

    -A suitable direction must be given where there are potential dangers in a jury acting upon evidence which may not without the direction be appreciated by the jury.

    -Whether a direction is called for, and its terms, will always depend on the circumstances of the particular case. 

    -Section 34CB(1) does not abolish the duty of a Judge to give a direction warranted by circumstances other than delay.

    -Section 34CB(1) does not abolish the power of a Judge to make a comment about any circumstance, including delay.

    -Section 34CB(1) does abolish the rule of practice identified in Longman – that being the narrow rule referred to by Doyle CJ in Cassebohm, namely a warning based on the forensic disadvantage to an accused person attributable to the passage of time. 

    -Section 34CB(2) obliges a court, on forming an opinion that the period of time that has elapsed between alleged offending and trial has resulted in a significant forensic disadvantage to a defendant, to provide a particular explanation and direction. The precise terms of the explanation and direction are to be found in sections 34CB(2)(a) and 34CB(2)(b), with further qualifications to be found in section 34CB(3).

    -Once the Court has formed the relevant opinion of significant forensic disadvantage it must explain the nature of that disadvantage, it must direct the jury to take that disadvantage into account in scrutinising the evidence, but the foregoing explanation and direction is not to take the form of a warning, must be specific to the circumstances of the particular case and must not include the phrase “dangerous or unsafe to convict.”  The further qualification “or similar words or phrases” is added.  The reach of this further qualification is unclear and is best discussed in a particular situation rather than on a hypothetical basis. 

    The Judge’s Explanation and Direction Concerning Forensic Disadvantage

16. In the course of the summing up the Judge gave the following direction:

    I want to say something about delay. As you are aware, there has been a period of about 16 years between the end of the alleged offending and the complainant’s report to the police. That delay has resulted in a forensic disadvantage to the accused. By a forensic disadvantage I mean that there are difficulties for the accused in challenging and responding to allegations so long in the past. The forensic disadvantages which suggest themselves are these: if there had been a more prompt complaint the accused might have been able to better remember where he was at particular times. He might have been able to call additional witnesses, or produce additional documents. Records, such as the orthodontist and his work records might have been available. The complainant’s father might have been able to give evidence casting light on some aspects of the trial, but he is dead. You must take these forensic disadvantages into account when scrutinising the evidence for the prosecution. You must take them into account when assessing whether the prosecution has proved its case against the accused. You should also make allowances for any difficulties the accused might have had in remembering particular matters.

    [Emphasis added.]

17. It is plain that the Judge determined pursuant to section 34CB(2) that there was a forensic disadvantage to the defendant resulting from the delay between the alleged offending and trial. It follows from the Judge’s direction that he was addressing the terms of section 34CB and therefore must have determined that there was a significant forensic disadvantage in accordance with the section. The question arises as to whether the Judge’s direction complied with sections 34CB(2)(a), 34CB(2)(b) and 34CB(3). In my opinion, the Judge’s direction was adequate compliance with those requirements. The direction explained the nature of the forensic disadvantage[28] and directed that the members of the jury must take that disadvantage into account in scrutinising the evidence of the prosecution[29] and make allowances for any difficulties the defendant may have had in remembering events.

    [28]   Evidence Act 1929 (SA) section 34CB(2)(a).

    [29]   Evidence Act 1929 (SA) section 34CB(2)(b).

18. Although the adequacy of the direction is not to be judged by the law as it existed before section 34CB was enacted, it is helpful to consider whether this direction would have been adequate before the amendment. It would have been. At common law, no particular form of words was needed. What was required was a direction that brought home to the jury the impact of delay upon the ability of the defendant to challenge the prosecution case and a direction that identified the particular circumstances that gave rise to that particular disadvantage. The direction does that.

    The Judge’s Direction of Close Scrutiny 

1. Counsel for the defendant drew attention to the common law rules developed to address the issue of unreliability and the situation where a defendant could be convicted on the evidence of one witness alone.  This rule was discussed by Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Robinson:[30]

   Sub-section (2) is to be understood in the light of common law rules which developed by way of qualification to the general principle stated above. Since an accused person could be convicted on the evidence of one witness only, the law was required to address the problem of unreliability. Such unreliability could arise from matters personal to the witness, or from the circumstances of a particular case. The law requires a warning to be given "whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case". However, as was held in Longman v The Queen, in relation to a similar Western Australian provision, the sub-section is not directed to such a general requirement. Rather, it is aimed at a more specific rule, by which the common law identified certain classes of case where evidence was considered to suffer from intrinsic lack of reliability. Although the classes were not closed, they included certain well-established categories. Thus, in Carr v The Queen, reference was made to "the rules which oblige a trial judge to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice, the victim of a sexual offence and the sworn evidence of a child". It will be noted that the present case fell into both of the second and third categories. The reasons for those categories were discussed in such cases as Longman v The Queen and B v The Queen. They included what are now rejected as "stereotypical assumptions".

   Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence, its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect.

   [Footnotes omitted.]

   [30]   Robinson v The Queen (1999) 197 CLR 162, [19]-[20].

2. In the within proceeding at trial, counsel for the defendant enquired whether the Judge proposed to direct the jury that they should scrutinise the complainant’s evidence with care as her evidence was uncorroborated.  The enquiry was made in the following terms:

   [Counsel for the defendant]: The second matter concerned the corroboration. Does your Honour propose to direct in accord [sic] corroboration is not required as a matter of law or practice but that the jury should scrutinise with particular care the complainant's evidence because it is uncorroborated?

3. In the course of summing up, his Honour directed the jury in the following terms:

   In conclusion, [counsel for the defendant] summarised the three overarching questions. He reminded you of the burden of proof borne by the Crown. He reminded you that you should consider the counts separately and that the exercise that you undertake is not to work out whose evidence you prefer. You would not find the accused guilty of any individual count if you merely suspected he was guilty, or even if you thought he was probably guilty. You would not find him guilty if you did not know where the truth lay. You would only find the accused guilty if you were satisfied beyond reasonable doubt of the complainant’s evidence.

   Because you are relying largely on the evidence of the complainant alone for the central issues in the trial, you should scrutinise her evidence with particular care. All of those propositions of law are correct. [Counsel for the defendant] did refer to you asking yourself whether you found the accused’s account a reasonable possibility, but really the correct approach is to ask yourselves whether or not you are satisfied beyond reasonable doubt of the evidence of the complaint on the count that you are then considering. [Counsel for the defendant] submitted that you should not be so satisfied in respect of any count.

   [Emphasis added.]

4. On the appeal, counsel for the defendant submitted that this was an inadequate direction.  It was said that it was not given with the authority of the Judge and that the Judge did not identify with any particularity why the evidence of the complainant should be scrutinised with particular care. 

5. Counsel for the defendant submitted that there were five aspects of the prosecution case that called for a warning or direction to the jury.  They were as follows:  there was no independent support to the complainant’s evidence; the complainant gave evidence about events that allegedly happened up to 30 years ago and from a time when she was as young as five years; there was a body of evidence produced by the defence that significantly undermined the complainant’s testimony as to circumstantial features of the case including places, dates and opportunity; that the complainant, when confronted with inconsistencies between her evidence and prior statements, explained those inconsistencies by reference to confusion and muddling; and finally, it was said that there were curious aspects of the complainant’s evidence that raised concerns as to her general reliability and credibility. 

6. The Director submitted that the need for any direction must be looked at in the context of the particular facts of this case and the way that the trial was conducted.  It was said that the prosecution case relied upon the complainant’s evidence for proof of the acts charged and that this was obvious and was emphasised.  There was nothing in the evaluation of the evidence that required the jury to receive special assistance.  The issues relevant to whether the complainant may have been unreliable or completely lacking in credit would, it was said, have been obvious to the jury.

7. The Director further submitted that the facts upon which the defendant on the appeal identified as calling for a direction were in fact emphasised by the Judge when he discussed the separate counts.  These topics were further identified by the Judge when he reminded the jury of the key points that had been made during defence counsel’s final address. 

8. Finally, it was submitted on this topic that a “dangerous to convict” warning was not requested at trial.  It was the Director’s contention that such a warning was unnecessary and that the absence of such a warning did not give rise to a risk of a miscarriage of justice.  To avoid a risk of a miscarriage of justice, no direction was required to the effect that the jury must “scrutinise the evidence with great care” nor that it would be “dangerous to convict”.

9. In my view, the direction given to the jury by the Judge to scrutinise the evidence of the complainant was adequate.  It is to be noted that it was a direction to scrutinise with particular care.  To this extent, the Judge’s direction accorded with the direction which had been impliedly sought by counsel.  Defence counsel following the summing up did not suggest that there was any inadequacy in this direction. 

10. Earlier in the summing up the Judge had directed the jury that it was the Judge’s responsibility to explain the law and that the jury were obliged to accept what he said about the law.  As a consequence, when given the “scrutinise with particular care” direction, the jury were informed that this was a correct statement of the law. 

11. I consider that the words used by the Judge clearly conveyed a judicial imprimatur and that the jury would have so understood the direction.  The direction would also have been understood in the context of the entire summing up, and as pointed out by the Director, the particular factual matters raised were addressed during the Judge’s discussion of the individual counts.  I do not see a risk of a miscarriage of justice arising as a consequence of the direction of the Judge for the jury to scrutinise the complainant’s evidence with particular care. 

    Evidence of the Complainant’s Mother

12. To understand this ground of appeal it is necessary to discuss the relevance of the evidence of the complainant’s mother.  The complainant’s mother was called by the prosecution on the issue of opportunity, in particular, first as to whether the defendant babysat the complainant in the period that counts 1 to 4 were alleged to have taken place and secondly, as to visits to the property at Waikerie where counts 5 to 9 were alleged to have taken place.

13. The Director on the appeal drew attention to evidence of the mother that could support the complainant in a number of respects.  In the course of the summing up, the Judge drew attention to this evidence and to the evidence to the contrary and directed the jury that they were not obliged to accept the entirety of the evidence of any witness.  The evidence of the mother went to such topics as the defendant babysitting the complainant, the arrangements of furniture, the number of trips to the Waikerie property and the existence of furniture in the main bedroom at Goolwa.

14. The Director pointed out that during the summing out immediately before turning to each count, the trial Judge informed the jury that he would not refer to all of the evidence and he then proceeded to summarise the defence case, making reference to a number of aspects that were raised on the appeal.  Finally the Director pointed out that no complaint was made at trial as to any deficiency in the summing up in this respect. 

15. I can discern no particular inadequacy or deficiency in the summing up on this topic.  The members of the jury had fresh in their minds the address of defence counsel and were reminded of salient points during summing up.  The Judge is not required to refer to each and every aspect of the evidence in summing up.  I consider the summing up to be adequate on the topic of the mother’s evidence.

    Burden of Proof

16. In the course of the summing up, the Judge observed:

    Every person who is charged with an offence comes to the court with a presumption of innocence. That means that unless and until a jury finds proved beyond reasonable doubt that a person is guilty of an offence, then he or she is presumed to be innocent of that offence. That presumption remains with him or her throughout the trial. Nothing short of proof beyond reasonable doubt will suffice.

    In respect of each ingredient of each charge the Crown bears the onus of proving that ingredient to you and proving it beyond reasonable doubt. Unless it does so, the accused is entitled to a verdict of not guilty on the charge that you are then considering. The accused bears no onus of proof.

    I have used the expression ‘reasonable doubt’ and counsel have used it too. I want to say something about it. A reasonable doubt is one which you as reasonable jurors are prepared to entertain. The expression requires no other explanation than that. It is simply a doubt that a reasonable person entertains and you as jurors are presumed to be reasonable persons. At the end of the day you ask yourselves ‘Am I in doubt as a reasonable person, acting reasonably, about the guilt of the accused?’. You ask that question in respect of each charge that you are then considering.

    During the course of my summing up I will occasionally say to you that you should be satisfied about something. When I do that, I want you to understand that I always mean satisfied beyond reasonable doubt. If I speak of matters being ‘proved’ to your satisfaction, or if I use words like ‘proved’ or ‘satisfied’ or ‘accepted’ then each time I mean proved beyond reasonable doubt, because I will not use the whole expression every time.

    During your deliberations you have a dual duty. You have a duty towards the accused to make sure that he has a fair trial. He is not to be convicted on unsatisfactory or dubious evidence. Equally, you have a responsibility to the community. If, having given the matter your earnest consideration, you are satisfied beyond reasonable doubt that the accused is guilty of the charge that you are then considering, then it is your duty to say so, no matter how unpleasant you might find that task.

17. The Judge directed the jury about each element of the offences charged and repeated from time to time that the prosecution bore the onus of proving each element beyond reasonable doubt. 

18. The defendant on appeal complained that in circumstances where the prosecution relies on the complainant’s “version” of what occurred which is denied on oath by the defendant, the trial Judge is required to ensure that the jury is directed in clear and unequivocal terms on how to approach their task.  It was said that the Judge failed to direct the jury about their assessment of the accused as a witness, about their assessment of the defence case, and in particular, how they should approach their task if they rejected the defendant’s evidence and the defence case.  It was pointed out in that circumstance, they still need to be satisfied beyond reasonable doubt of the defendant’s guilt on each count.

19. The Judge addressed the evaluation of witnesses in the following terms:

    I want to say something about evaluating witnesses, that is, evaluating whether they are telling the truth or not or whether they are reliable or not. You have been brought here as 12 people coming from different walks of life to sum up the evidence, to decide how much notice you are prepared to take of a particular witness, to consider the evidence and to evaluate it. You have the absolute right as jurors to believe or to disbelieve. You have the absolute right to accept or reject evidence. You could accept a part and reject a part of a witness’s evidence. In assessing the credibility of the witness you might have regard to your impression of the witness in the witness box. Sometimes demeanour helps, sometimes it does not. You could have regard to the intrinsic likelihood of an account that a witness has given, or how that witness’s evidence has stood up to cross-examination, or how that witness’s evidence fits in with other evidence that you heard during the trial and of which you are satisfied beyond reasonable doubt.

20. When addressing the defence case, the Judge observed:

    In conclusion, [counsel for the defendant] summarised the three overarching questions. He reminded you of the burden of proof borne by the Crown. He reminded you that you should consider the counts separately and that the exercise that you undertake is not to work out whose evidence you prefer. You would not find the accused guilty of any individual count if you merely suspected he was guilty, or even if you thought he was probably guilty. You would not find him guilty if you did not know where the truth lay. You would only find the accused guilty if you were satisfied beyond reasonable doubt of the complainant’s evidence.

21. The Judge endorsed these remarks by informing the jury that the propositions of law outlined by defence counsel “are correct” and again reminding the jury that:

    …the correct approach is to ask yourselves whether or not you are satisfied beyond reasonable doubt of the evidence of the complaint on the count that you are then considering. [Counsel for the defendant] submitted that you should not be so satisfied in respect of any count.

    In conclusion, then, you should consider each count separately, relying on the evidence led in support of each. You will not find the accused guilty of any count, unless you find the evidence on that count proved beyond reasonable doubt.

    At the end of the summing up the Judge reminded the members of the jury that they needed to be satisfied beyond reasonable doubt of each count. 

22. I see no inadequacy in the approach taken by the Judge in this case.  The Judge clearly and adequately directed the jury about the burden of proof borne by the prosecution, that there was to be proof beyond reasonable doubt and that no onus lay on the defendant. 

    Unsafe and Unsatisfactory

23. In Nguyen, Hayne, Heydon, Crennan, Kiefel and Bell JJ provided the following guidance as to the task of an appellate court in considering a submission of unsafe and unsatisfactory:[31]

    [31]   R v Nguyen (2010) 242 CLR 491, [33].

    The task of an appellate court in considering whether a verdict of guilty returned by a jury "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence" was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being "unsafe or unsatisfactory", "unjust or unsafe" or "dangerous or unsafe". The question for the appellate court is one of fact.

    "[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

    As the plurality in M went on to point out:

    "But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

    The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:

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

    [Footnotes omitted.]

    It is this authoritative guidance that this Court is to follow when considering the defendant’s submissions on this topic.

24. The substance of the defendant’s submission involved the analysis of the evidence of the complainant in respect of first counts 1 and 2, then counts 3 and 4, then counts 5 to 9, and finally, count 10.  It was said that the cumulative effect was to impact so adversely on the reliability and credibility of the complainant’s account that the verdicts were unsafe and unsatisfactory.  It was claimed that this analysis led to indisputable inconsistencies, if not impossibilities, as to dates and locations leading importantly to an absence of opportunity. 

25. In regard to counts 1 and 2, it was claimed by the defendant that the relevant period over which this offending could have occurred was limited to less than three months – between April and June 1983.  It was asserted that the complainant’s account was inconsistent with that of another witness.  It was further said that the complainant’s description of the room in which the offending was said to have occurred, did not accord with other evidence as to how the room was set up during that period. 

1. The Director pointed out that counts 1 and 2 were said to have occurred at a time when the complainant was aged about five years.  It was said that unsurprisingly, evidence about when the counts took place was imprecise.  It was open to the jury to accept the complainant’s account.  Further, the evidence asserting a different description of the room and its set up came from the defendant and his wife.  It was open to the jury to reject that evidence and accept the complainant’s evidence.  The Director pointed out that each of the matters raised by the defendant on the appeal was emphasised before the jury both during the defendant’s closing address and in the summing up. 

2. Similar points were made by the defendant in regards to counts 3 and 4.  It was claimed that the complainant’s evidence was inconsistent with that of another witness as to when the alleged offences occurred, and inconsistent with other evidence as to the location.  The Director responded that at the time of these counts, the complainant was about seven years of age, and again unsurprisingly, there was a lack of precise evidence about precisely when the counts occurred.  It was pointed out that evidence about the location was a matter where the witnesses differed, and that it was open to the jury to accept the complainant’s evidence and to act on that evidence.  The Director pointed out that each of the matters raised by the defendant on the appeal was emphasised before the jury both during the defendant’s closing address and in the summing up. 

3. Counts 5 to 9 on the complainant’s evidence involved offending at Waikerie.  The defendant pointed to what was said to be inconsistencies in the complainant’s evidence with what was said to be objective evidence about times when the complainant was living near Waikerie.  Attention was drawn to suggested inconsistencies between the complainant’s evidence and out-of-court statements and photographs.  Attention was also drawn to the complainant’s evidence about these inconsistencies and to her acceptance that she was confusing the occasion with other times and had got them “muddled” together. 

4. The Director submitted that mistakes by the complainant about precise dates and events were again unsurprising.  It was said that none of the mistakes or inconsistencies were of any real significance, and insofar as they might be relevant to the complainant’s credibility or reliability, there could be no suggestion that the members of the jury had overlooked these matters in reaching their verdicts.  Again, the Director pointed out that each of the matters raised by the defendant on the appeal was emphasised before the jury both during the defendant’s closing address and in the summing up. 

5. On the appeal, the defendant contended that the evidence of the complainant with respect to count 10, lacked credibility and reliability because of what was said to be mistakes as to date.  It was claimed that the complainant’s evidence had asserted that the acts the subject of count 10 had occurred at Goolwa when she had been at school at Victor Harbor.  It was pointed out that at the date alleged, the complainant was still living in the Riverland and there was a body of evidence to confirm this fact.  The complainant’s account in regard to the incident and in regard to surrounding circumstances was said to be materially inconsistent with other evidence before the Court.

6. On the appeal the Director responded that the precise age of the complainant at the time that count 10 was said to have taken place was not a material particular, and that it was open to the jury to find that the incident occurred, but at a later time.  The Director drew attention to the complexity of the evidence concerning the movements of both the complainant and defendant, but that in the end, it was open to the jury to accept that the incident had occurred, but at a different time.  Again it was pointed out that each of the matters raised on appeal as to the credibility and reliability of the defendant were emphasised before the jury both during the defendant’s address and the summing up.

7. I do not consider that any of the matters raised allow the conclusion that the verdicts on the respective counts were unsafe and unsatisfactory.  A review of the evidence in the trial discloses a detailed cross-examination of the complainant and the jury’s attention being subsequently drawn to what was said to be material inadequacies and inconsistencies in her testimony.  The jury’s attention was drawn again to these matters in the summing up.  The precise times relevant to each count were not material particulars.  It was open to the jury to accept that the allegations of indecent dealings occurred, but at a different time.  I see no reason to disturb the jury’s verdicts on this ground. 

   Conclusion

8. I would dismiss the appeal.

9. SULAN J: I would dismiss the appeal.  I agree with the reasons of Gray J, but I make the following observations.  I rely on Gray J’s summary of the facts.

10. The prosecution case substantially relied on the evidence of the complainant.  The direction to scrutinise the evidence with particular care was required in this case. 

11. The trial Judge adequate directed the jury of the defence case.  He made it clear to the jury that the appellant denied that the alleged acts of sexual impropriety took place.  Not only did the appellant generally deny the conduct, but he refuted the complainant’s evidence about the occasions upon which she alleged specific acts took place.  The appellant denied having babysat the complainant on the night she alleged various acts of indecency took place at Port Elliott.  The trial Judge referred to the specific denials of the appellant.  He pointed out the defence case that the complainant had misdescribed the rooms and furniture, and he reminded the jury about the criticisms of the complainant’s evidence.  Further, as to the offending at Waikerie, the trial Judge pointed out the appellant’s specific complaints about the complainant’s inaccurate description of the house, furniture and the occasions upon which the complainant stayed at Orchard House.

12. As to the occasions at Goolwa when the offending took place in the appellant’s car, the trial Judge reminded the jury both of the appellant’s general and specific responses to the allegations.

13. The trial Judge made it clear that, before the jury could convict the appellant, they must be satisfied beyond reasonable doubt of the complainant’s evidence.  He referred to the submissions of defence counsel.  He said:

    Mr Crocker for the defence began his address by reminding you of important legal principles, the correctness of which I underline.  The prosecution bears the onus of proving its case in respect of each count beyond reasonable doubt.  The accused retains the presumption of innocence, unless and until you find him guilty of an individual count.  It would not be sufficient to convict him if you merely suspected that he was guilty, or even if you thought it was likely or probable that he was guilty.  You would not find the accused guilty of an individual count unless you were satisfied beyond reasonable doubt of the complainant’s evidence on that count.  You would not find the accused guilty if you did not know where the truth lay.  He submitted to you that you should not approach the case by asking why would the complainant say this if it was not true.  While a lack of motive may be of some importance in your consideration of the evidence, it is important to bear in mind my direction to you that it is not for the accused to suggest any motive for the complainant to lie.  The burden of proving its case beyond reasonable doubt rests always with the Crown.

14. He summarised the defence case and counsels’ submissions in detail.  Earlier in the summing up, he had dealt with the question of delay.  He directed the jury that the delay had resulted in a forensic disadvantage to the accused.  He explained that a forensic disadvantage meant that there are difficulties for the accused in challenging and responding to allegations so long in the past and that, if the complaint had been made more promptly, the accused might have been able to better remember where he was at particular times.  He may have been able to call additional witnesses or produce additional documents.  Medical and dental records might have been available.  The complainant’s father might have been able to give evidence, but he was dead.  He directed the jury that they must take these disadvantages into account when scrutinising the evidence for the prosecution and when assessing whether the prosecution has proved its case beyond reasonable doubt.

15. In my view, that direction was in accord with the statutory requirements.[32] Section 34CB has been the subject of the decision in Cassebohm.[33]  I observe that, as a consequence of the statutory requirements, the task of a trial judge is made more difficult in directing a jury where there has been a lengthy delay, and in ensuring that the jury’s attention is drawn to the inherent difficulties that result when there has been a delay of many years.

    [32]   Evidence Act 1929 (SA) s 34CB.

    [33]   R v Cassebohm [2011] SASCFC 29.

16. In Longman,[34] Brennan, Dawson and Toohey JJ, in discussing the circumstances in which a Judge should comment to a jury of the danger of convicting on the uncorroborated evidence of a complainant said:[35]

    The Court of Criminal Appeal limited their inquiry unduly under a misconception of the scope of par. (b).  The question which arose, and which arose under the latter part of par. (b), was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case.  There were several significant circumstances in the case:  the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant’s mother.  It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence.  Of course, any comment must be fairly balanced.

    [34]   Longman v The Queen (1989) 168 CLR 79.

    [35]   Longman v The Queen (1989) 168 CLR 79 at 90.

17. On the question of delay, the joint judgment said:[36]

    That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution.  Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial.  After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested.  The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court (N.S.W.) and it was imperative that a warning be given to the jury.  The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.  To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.  The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence.  That was not sufficient.

    [Footnote omitted].

    [36]   Longman v The Queen (1989) 168 CLR 79 at 91.

18. Parliament in South Australia has chosen not to have regard to the High Court’s observation that to ensure the fairness of a trial in a case of lengthy delay between the offending and the complaint, a warning should be given.  Trial judges are, therefore, faced with the difficulty of having to distinguish delay from other factors which may go to the fairness of the trial and where some warning is required.  The result can, therefore, lead to confusion as in most cases of long delay, as in this case, there are other factors which require the judge to consider some form of warning to ensure a fair trial.  This two-pronged approach can lead to confusion.

19. Later in the summing up, the trial Judge gave the direction which is also the subject of this appeal.  He said:

    In conclusion, Mr Crocker summarised the three overarching questions.  He reminded you of the burden of proof borne by the Crown.  He reminded you that you should consider the counts separately and that the exercise that you undertake is not to work out whose evidence you prefer.  You would not find the accused guilty of any individual count if you merely suspended he was guilty, or even if you thought he was probably guilty.  You would not find him guilty if you did not know where the truth lay.  You would only find the accused guilty if you were satisfied beyond reasonable doubt of the complainant’s evidence.

    Because you are relying largely on the evidence of the complainant alone for the central issues in the trial, you should scrutinise her evidence with particular care.  All of those propositions of law are correct.  Mr Crocker did refer to you asking yourself whether you found the accused’s account a reasonable possibility, but really the correct approach is to ask yourselves whether or not you are satisfied beyond reasonable doubt of the evidence of the complaint on the count that you are then considering.  Mr Crocker submitted that you should not be so satisfied in respect of any count.

20. I observe that counsel, who was aware of the terms of s 34CB and was aware of the fact that this was a case in which the prosecution substantially relied upon the evidence of the complainant, having heard the summing up, made no complaint or request that the trial Judge further direct the jury in respect of his direction to scrutinise the evidence with care. Counsel did seek further directions from the trial Judge on a number of matters, but made no request for a further direction in respect of the passage I have just quoted. Although counsel’s failure to make a request is not fatal when an appellate court considers whether a summing up is so deficient that there is a perceptible risk of a miscarriage of justice, it is a factor to which appellate courts have had regard when considering complaints about the summing up or the conduct of a trial.[37]

    [37]   See Crampton v The Queen (2000) 206 CLR 161 at 173 [18]-[19] per Gleeson CJ; R v B and D (1993) 66 A Crim R 192 at 197.

21. The trial Judge did direct the jury to scrutinise the complainant’s evidence with particular care.  There is no rule of law or practice which requires the judge to use particular words or apply a particular formula.  As Gibbs CJ, with whom Mason and Wilson JJ agreed, said in Bromley:[38]

    The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so.  There is no particular formula that must be used;  the words used must depend on the circumstances of the case. 

    [38] (1986) 161 CLR 315 at 319.

22. In the present case, it would have been apparent to the jury that the prosecution relied substantially upon the complainant’s evidence and, before they could convict, they must be satisfied beyond reasonable doubt, both as to her honesty and reliability.  The caution needed no further explanation in this case.

23. Robinson v The Queen,[39] reaffirmed the position.  The High Court also approved the statement of Lee J in R v Murray, in which Lee J stated:[40]

    In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in;  but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.

    [39] (1999) 197 CLR 162.

    [40] (1987) 11 NSWLR 12 at 19.

24. In my view, the Judge gave such a direction in this case.  The Judge summarised the evidence and addresses of counsel.  He made clear to the jury that the case depended upon the complainant’s evidence, and that they must be satisfied beyond reasonable doubt on her evidence alone.

25. Although it may have been desirable for the trial Judge to have given the direction to scrutinise the evidence with particular care, without referring to counsels’ addresses, the formula used by the Judge in bringing to the jury’s attention the necessity of scrutinising the evidence with particular care was, in my view, sufficient.

26. PEEK J.    I would allow the appeal, set aside the convictions and order a re-trial.

    Background

27. The complainant was born 21 July 1977.  The appellant, who is her uncle, was found guilty, by majority verdicts, of five counts of unlawful sexual intercourse and five counts of indecent assault alleged to have occurred over the period between 20 July 1981 and 22 July 1993.  The complainant was younger than five years of age at the beginning of this period.

28. The complainant first complained to police on 11 August 2009 when she was 32 years of age.  The appellant was first informed of the allegations when he was interviewed by police on 9 September 2009.  He then answered their questions and denied the allegations.  The respective periods of delay from the first date particular of alleged offending and the last date particular of alleged offending to the police interview on 11 August 2009 were about 28 years and 16 years respectively.[41]

    [41]   Six separate incidents were alleged to have been committed at three different locations against a background of uncharged acts.  The first location was the appellant’s home at Goolwa (“Port Elliot Road”), it being alleged that counts 1 and 2 (Indecent Assault) occurred on a single occasion and counts 3 (USI) 4 (Indecent Assault) on a later occasion.  The second location was a house to which the appellant subsequently moved at Waikerie (“the Orchard House”) where it was alleged count 5 (USI) occurred in the bathroom, count 6 on a bed (a charge of USI, the jury returning a majority verdict of Indecent Assault in the absence of any evidence of penetration) and counts 7-9 (all USI) on a further occasion while viewing a pornographic video.  After living at Waikerie, the appellant returned to Goolwa where it was alleged that count 10 (Indecent Assault) occurred in his car after he had picked up the complainant from school.

29. There were no witnesses to the alleged events and any conviction depended on the uncorroborated evidence of the complainant.  At trial the appellant gave evidence denying the charges.  He was essentially limited to simply denying the allegations but he also disputed that the opportunities to commit the offences were as great as the prosecution witnesses suggested and that some of the physical surrounding circumstances were as described by the complainant.

    The grounds of appeal

30. The grounds of appeal as they eventually emerged were as follows:

    1The learned trial Judge failed to give, or adequately give, a warning, direction or comment about the complainant’s evidence including the reliance of the prosecution case upon her evidence, the assessment of her evidence and/or the need to scrutinise her evidence with great care.

    2      The verdicts are unsafe and unsatisfactory.

    3The learned trial Judge erred giving the jury a direction pursuant to s 34CB of the Evidence Act 1929 (s 34CB not being applicable in the circumstances of this case).  Additionally, or in the alternative, the direction given was

    i.      inadequate in its terms and content; and/or

    ii.     wholly inadequate to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

    4The learned trial Judge failed to adequately direct the jury in relation to the burden of proof.

    5The learned trial Judge failed to direct the jury in relation to the evidence of [HJ], including its significance to the assessment of the evidence of the complainant and the proof by the prosecution of its case.

    Ground 1 of appeal

1. In the present case the trial Judge was of the view that delay had resulted in a significant forensic disadvantage to the defendant.[61] In this he was clearly correct. Accordingly, he gave a direction under s 34CB(2) quite early in his summing up at page 4. It was as follows:

   I want to say something about delay.  As you are aware, there has been a period of about 16 years between the end of the alleged offending and the complainant’s report to the police.  That delay has resulted in a forensic disadvantage to the accused.  By a forensic disadvantage I mean that there are difficulties for the accused in challenging and responding to allegations so long in the past.  The forensic disadvantages which suggest themselves are these: if there had been a more prompt complaint the accused might have been able to better remember where he was at particular times.  He might have been able to call additional witnesses, or produce additional documents.  Records, such as the orthodontist and his work records might have been available.  The complainant’s father might have been able to give evidence casting light on some aspects of the trial, but he is dead.  You must take these forensic disadvantages into account when scrutinising the evidence for the prosecution.  You must take them into account when assessing whether the prosecution has proved its case against the accused.  You should also make allowances for any difficulties the accused might have had in remembering particular matters.

   [61]   As required by 34CB(2).

   The s 34CB(2)(a) requirement to explain to the jury the nature of the forensic disadvantage

2. In my view his Honour’s direction was inadequate in that it failed in a number of respects to explain adequately the nature of the forensic disadvantage, as is required by s 34CB(2)(a). There are a number of matters to be considered.

3. The first matter is that, in order to explain the nature of the forensic disadvantage in the present case, it was critical to explain what a “forensic disadvantage” actually is.  One simply can not assume that all members of a jury would know what the term “forensic disadvantage” means or is intended to mean.  I fully endorse the following observation of Doyle CJ in R v Cassebohm:[62]

   [27]The relevant disadvantage to an accused person has often been referred to as a forensic disadvantage.  This also is a convenient shorthand for use by judges and lawyers.  But one should be careful not to allow the use of that expression to distract attention from the need to consider the circumstances of the particular case.  The expression is not one, in my opinion, which should be used with a jury, unless a careful explanation of what it means is given.  There is a risk that jurors would not understand the expression, unexplained.

   [62] (2011) 109 SASR 465.

4. In the present case the trial Judge stated: “By a forensic disadvantage I mean that there are difficulties for the accused in challenging and responding to allegations so long in the past.  The forensic disadvantages which suggest themselves are these …”.  His Honour then proceeds to list the particular forensic disadvantages.

5. I consider that this is an insufficient explanation of the nature of forensic disadvantage in the present circumstances.

6. The second matter is that, although his Honour had ex hypothesi come to a decision pursuant to s 34CB(2) that the appellant has suffered a significant forensic disadvantage, he only directed in terms of a “forensic disadvantage”. I consider that the requirement pursuant to s 34CB(2) that the trial Judge explain to the jury the nature of the forensic disadvantage includes a requirement that his Honour explain that part of the nature of the forensic disadvantage was that it was a significant forensic disadvantage.  Without such a direction the jury may have considered that the forensic disadvantage may have been, or have been thought to be, less than significant. 

7. The third matter is that, his Honour refers to a delay of about 16 years as part of the nature of the forensic disadvantage.  However, as noted above, while the delay from the last date particular of the last alleged offence to the date when the appellant was informed of the allegations was about 16 years, the delay from the first alleged offence was some 28 years.  This much longer period of delay is likely to have an even more significant forensic disadvantage.  The jury were not directed by his Honour about this and should have been.  This matter is exacerbated by the fact that the 28 year delay takes one to the alleged offending when the complainant was a very young child which is of relevance to the fourth matter to which I now turn.

8. The fourth matter is that an important aspect of the significant forensic disadvantage arising from the 28-16 year delay was that the very generality of both the evidence led on the counts and of the uncharged conduct produced by the delay in turn produced a particular forensic disadvantage, namely that it was very difficult to test that evidence and the appellant was largely reduced to a general denial.  It can be readily appreciated that this tendency will be exacerbated when the complainant seeks to recall events said to have occurred when she was a very young child and in this respect it was a delay of 28 years that was relevant.

9. As an example of the direction that is required in this sort of case, I refer to the decision in R v DRG[63] which, although predating the advent of s 34CB, nevertheless remains highly relevant to the application of s 34CB to this type of case. In R v DRG[64] the delay was a period of four years – much less than the present delay - but the Court considered that there was a real and practical forensic disadvantage which needed to be explained to the jury.  Thus Doyle CJ stated:

   [36]But although a warning that it was dangerous to convict on L’s evidence was not called for, it was necessary to bring home to the jury, quite clearly, the difficulty faced by the defence in a case like this in testing the allegations made against the accused.  The generality of the evidence made in relation to the first three counts, and of the evidence of uncharged conduct, meant that it was very difficult to test that evidence.  The problem lay not so much in the lapse of time, as in the fact that if the occasion could not be identified with reasonable precision, it became impossible to deny the existence of the opportunity to offend or the possibility of the offence having been committed at the time in question.  As well, on the occasions that were identified with reasonable precision, the fact that DRG had the opportunity to commit the offences meant that there was nothing he could do other than deny having taken that opportunity.  In this respect, the present case is rather like BFB.  The jury might not have appreciated the difficulty that the defence faced, and that is a reason why that difficulty needed to be brought home to them.  It needed to be brought home clearly, and as based on the experience of the courts.

   [37]I consider that the direction that the judge gave to the jury was not adequate in this respect.  The passages that I have set out above, the only portions of the summing up that bear on the point, would not have brought home to the jury the difficulty that the defence faced in this respect.  The jury might not have appreciated, in considering the fairly detailed evidence given by L, and the undeniable opportunity to offend, that there was not a great deal that DRG could provide by way of answer, and that this made it necessary to scrutinise the evidence of L with care, and, more importantly, to bear in mind the difficulty that the defence faced in testing her allegations.  …

   (Emphasis added)

   [63] (2004) 150 A Crim R 496.

   [64] (2004) 150 A Crim R 496.

10. Turning to R v Cassebohm,[65] which does specifically address this legislation, I note that in the present case the trial Judge summed up prior to the delivery of that judgment and it may well be that his Honour held a more constrained view as to what he should say than he would had he had the benefit of it.  In any event, one must carefully bear in mind the words, indeed the whole judgment, of Doyle CJ in R v Cassebohm.[66]  Thus his Honour there said:

    [28]I conclude that s 34CB(1) abolishes the duty to warn a jury, along the lines indicated in Crampton, by reference to the adverse impact on the defendant’s ability to defend a charge, attributable to the passage of time.  The duty to warn might have arisen solely from the passage of time or from that, in some cases, other particular circumstances of the case.  The obligation arose only when the accused was at a forensic disadvantage attributable to the passage of time.  The abolition of that obligation leaves open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay.  But a trial judge should not use this as a means of resurrecting the Longman warning in another form.  It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person.

    [29]Section 34CB(2) creates a new affirmative obligation, to be discharged against the background that I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial.  The obligation arises only if the judge is satisfied that the accused person has suffered “a significant forensic disadvantage”.  This is a decision for the trial judge.

    [30]It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused.  On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant.  One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost.  I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.  For example, an accused might suffer from a significant impairment of memory attributable to illness that has occurred in the time that has elapsed between the alleged offence and the trial.  Who can say what the accused would have remembered if his memory had not been impaired by illness?  But I would accept that a defendant in such a position is at a forensic disadvantage, because the defendant no longer has the benefit of a memory unimpaired by illness.  I should add that in this example I am postulating a significant memory impairment.  Similarly, after many years have passed it is not difficult to conclude that the normal memory loss that occurs gives rise to a significant forensic disadvantage.  Of course, in a particular case there might be no sign of memory loss, or the case might be one in which the accused’s memory is not a relevant matter.  The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J: that is, the difficulty of testing the complainant’s evidence, and the difficulty of marshalling a defence.  Other circumstances, not attributable to the passage of time, may well need to be considered.

    (Emphasis added)

    [65] (2011) 109 SASR 465.

    [66] (2011) 109 SASR 465, 474.

11. I consider that ground 3 of the appeal is made out. 

    The combined effect of grounds 1 and 3 of appeal

12. To draw the threads together, at page 4 of his 14 page summing up the trial Judge gave the whole of his directions as to delay in the 16 line passage I have reproduced above.  His Honour then deals with many other quite different matters and much later, on the last page of the summing up, makes the comment that the three propositions of law postulated by defence counsel in his address were correct, this being the matter considered above under ground 1 of appeal.

13. I am firmly of the view that in a case where, as here, there is delay which has resulted in a significant forensic disadvantage and the prosecution case essentially depends on the word of one witness, the directions as to that forensic disadvantage and as to the correct approach to the evidence of the sole witness should be gathered together and not separated by virtually the whole of the summing up with no connecting passage between the two.

14. This is because it is important for the jury to appreciate the cumulative effect of the whole of the reasons why they should scrutinise the evidence of a sole witness with great care before convicting on the basis of it.  As stated above, such a direction will often be required in a case in which there is no delay.[67]  However, where there is in fact a substantial delay, such delay may substantially reinforce the need for caution when considering the evidence of the sole witness in the light of the particular forensic disadvantages in challenging the evidence of that witness in the particular case.

    [67]   As noted above, Murray itself was such a case.

15. As discussed above, one forensic disadvantage that may be produced by delay is that both the evidence led on the counts and of the uncharged conduct may become very general which in turn produces a particular forensic disadvantage, namely that it is very difficult to test that evidence, the accused being largely reduced to a general denial. 

16. It is possible that in some cases of substantial delay there may be few forensic disadvantages, but that is certainly not this case.  In a case where the complainant alleges sexual conduct when she was less than five years of age, the complaint to police not having been made for some 28 years after that, forensic disadvantages loom large.  In cases of the present kind, one must carefully bear in mind the words of Doyle CJ in R v Cassebohm[68] and R v DRG,[69] both referred to above.

    [68] (2011) 109 SASR 465.

    [69] (2004) 150 A Crim R 496.

    Section 34CB(2)(b) – scrutinising the evidence

17. As a member of the Court in R v Cassebohm,[70] I agreed with the Chief Justice and found it unnecessary to add any further comment. I will add little now, but there is one matter arising from s 34CB(2)(b) of relevance to the present appeal with which I should deal.

    [70] (2011) 109 SASR 465.

18. For present purposes, it suffices to say that the legislature has taken the view that, prior to the enactment of s 34CB, there was a rule of law or practice at common law obliging a trial Judge to give a warning of a kind known as a Longman warning in all cases where there existed substantial delay.  That common law obligation has been replaced by a statutory obligation which will only be engaged if “the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant.”[71] If the court is of that opinion, s 34CB(2)(b) provides that the Judge must … “direct that the jury must take the forensic disadvantage into account when scrutinising the evidence”.

    [71] Section 34CB(2).

19. The words when scrutinising the evidence in emphasis are very interesting since there is no prior (or subsequent) reference in the Evidence Act 1929 to any obligation upon the Judge to direct that the jury should “scrutinise” the evidence at all.  Further, one cannot assume that “scrutinise” is a word that will always be used by a Judge in directing a jury and it would therefore appear that the legislature intended that where the Court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, not only must the jury be directed that “the jury must take the forensic disadvantage into account” but also that the jury should be positively directed in relation to a need to “scrutinise the evidence”.  It should be obvious that the existence of such a basis for the giving of the direction does not derogate from the other bases for the direction as considered above.[72]

    [72]   Cf R v Cassebohm (2011) 109 SASR 465, 474 [28] “It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person.”

20. As to the content of such a direction, in my view the particular word “scrutinise” is chosen in the light of the draft person’s familiarity with such decisions as R v Murray,[73] Fleming v The Queen[74] and Robinson v The Queen[75] and to indicate that a direction along the lines of “scrutinising the evidence most carefully” is what is intended.

    [73] (1987) 11 NSWLR 12.

    [74] (1998) 197 CLR 250.

    [75] (1999) 197 CLR 162.

21. It is to be noted that the trial Judge, in his directions on delay reproduced above, did no more than read out the very words of the statute: “You must take these forensic disadvantages into account when scrutinising the evidence for the prosecution.”  He said nothing about the significance of the word “scrutinise” and nor did he relate it to his quite separate words concerning counsel’s submission to the jury about scrutiny of the evidence which appear at the end of his summing up (and have been considered above under ground 1 of appeal).  In my view, this again points up the desirability that where there is delay resulting in a significant forensic disadvantage and the prosecution case essentially depends on the word of one witness, the directions as to that forensic disadvantage and as to the correct approach to the evidence of the sole witness should be dealt with at the same place in the summing up so that the jury can better appreciate the cumulative significance of such matters.

    A final word - other aspects of s 34CB Evidence Act 1929

22. I wish to reserve my opinion in relation to a number of aspects now alluded to by the learned President in the present case.

23. However, I will briefly mention one matter. I do not agree that the word “may” in s 34CB(3) connotes an “obligation” not to give an explanation or direction under subsection (2) in the form of a warning.  I stress the marked contrast between the words “may not take the form of a warning” in the words of s 34CB(3) and the use of the words “must” and “must not” in s 34CB(3) (a) and (b) respectively. In my view, the words “may not take the form of a warning” are entirely consistent with the premise that a common law obligation upon a trial Judge to give directions is being replaced by a statutory obligation to give directions and that the legislature intended that the statutory directions are not required to be in the form of a warning in the sense that they may not take that form if the trial Judge thinks it appropriate that they do not.  However, that, of course, does not mean that the directions must not be in the form of a warning. If the legislature had meant that, obviously it would have used the words “must not” that are in fact used in s 34CB(3)(b). Accordingly, the meaning of “may not” in s 34CB(3) should be construed as “may, or may not” in the sense of “the trial Judge does not have to frame the required direction as a warning but may do so if he or she considers it appropriate.”

    Disposition of the appeal.

24. I consider that both grounds 1 and 3 of appeal are made out and that the appropriate order on that basis is that there be a re-trial.  I consider that ground 2 of appeal, which would lead to a judgment of acquittal, is not made out.  Neither of the grounds 4 or 5 would lead to an order other than for a re-trial and I find it unnecessary to examine them in the circumstances of this particular case.

1. I would allow the appeal and order a re-trial.