R v Power

R v POWER
[2003] SASC 77
Court of Criminal Appeal: Perry, Williams and Bleby JJ

PERRY J. This is an appeal against conviction following a trial by judge alone in the District Court on four counts of unlawful sexual intercourse with a person under the age of 12 years, a young girl whom I will call V.
The information alleged six counts, but at the commencement of the hearing, a nolle prosequi was entered with respect to counts 3 and 5. The trial proceeded with respect to the remaining counts.
At the conclusion of the Crown case, the trial judge acceded to a submission of no case to answer in relation to count 2.
The accused then gave evidence, after which the trial judge delivered written reasons supporting his verdict of guilty with respect to the remaining three counts, that is counts 1, 4 and 6.
V was born on 22 August 1991. She was therefore 11 years of age when she gave her evidence on 9 October 2002. She was about 10 at the time of the first count, which alleges digital penetration in December 2001, between 6 and 9 years of age at the time of the fourth count, which alleges digital penetration between August 1997 and August 2000, and between 5 and 10 years of age at the time of the sixth count, which alleges an act of cunnilingus between 22 August 1996 and 15 December 2001.
The appellant is the brother of the victim’s step-father. At the time of the trial, in October 2002, he was aged 27 years. V’s step-father is her mother’s second relationship, V being a child of an earlier relationship of her mother.
The incident the occasion of count 1 was the last of a series of occasions, extending beyond the six charged counts, upon which V alleged that the appellant had dealt indecently with her.
As to the first count, the evidence was that on 16 December 2001, V stayed overnight at the house occupied by the appellant and V’s auntie, Belinda Watson. V’s intention was to stay at her auntie’s house for about a week. She gave evidence that she was sitting on a lounge with the appellant, watching a video. Her auntie had gone to bed. V had her nightie on and was wearing underpants. She alleged that the appellant pulled her underpants down to her ankles and then put his fingers into her vagina.
Her evidence was that because of what the appellant had done to her, she changed her plans, stayed only that one night and went home the next day.
V said that when she got home, she told her mother what had happened. She could not remember what she had said to her mother.
V’s evidence was that the appellant had touched her indecently on a number of other occasions, she thought it was more than ten times. She could not say accurately how many more. All of those occasions preceded the incident the subject of count 1.
As for count 4, V’s evidence was that this occurred on an occasion when she was in her own family’s house at Port Lincoln. She was sharing a bunk bed with her sister, who was in the lower bunk. She was wearing a nightie and underpants.
Her evidence was that the appellant came into the bedroom to say goodnight, put his hand under the blankets in her bed and put his fingers into her vagina.
On the occasion the subject of count 6, V’s evidence is that she was at the appellant’s house, which was a different house from that in which the allegations concerning count 1 occurred. She said that while her auntie was at work, and she was in the lounge room, the appellant pulled her underpants down to her ankles and put his mouth on her vagina. She said that at the time she was playing on the playstation. The appellant used his tongue both inside and on top of her vagina. Her memory was that she was in grade 3 or 4 at the time.
V’s mother gave evidence. She confirmed that on 16 December 2001, V went to stay with her auntie, her mother’s sister. The original intention was that she stay for a week, but she came home the next day.
That evening, V’s sister told her mother that V was in bed crying. V’s mother spoke to V in the bedroom. Her evidence was:
“A.... I climbed up on to the bunk with her and I asked her what was wrong and she said that she was scared that she wasn’t going to get her periods. And I thought -
Q.Don’t tell us what you thought.
A.Sorry. I had said to her ‘Did you - do you have a pain in the belly, do you have your periods or -‘, and she said ‘No’, but she was crying. And I said ‘Well, don’t be silly’, I said ‘What makes you think that you’re not going to get your periods?’ And she said ‘Because Bradley put his fingers in my rude parts’.
Q.What did you say to that.
A.I said ‘When did he do it?’ and she said ‘Last night’. And I said ‘Has he done it before?’ and she said ‘Yes’. I said ‘When?’ and she said ‘Lots of times’. And I said ‘Does anybody else, has anybody else done it to you?’ and she said ‘No’. And I said that - then she said to me ‘Promise not to tell anybody’, because she was embarrassed, and I said - I gave her a cuddle and she stopped crying and I tucked her in ...”
V’s mother said that she contacted the police the following Friday, that is, on Friday 21 December 2001. She took V to see Dr Bjelic on 24 December 2001, and Dr Woodard-Knight on 27 December 2001.
The appellant was arrested on 24 December 2001.
V’s grandmother gave evidence that on 17 December 2001 V came to her house and that she appeared to be withdrawn and “just not herself”.
Evidence was given by Belinda Watson, who was at the relevant time the de facto partner of the appellant. She said that her relationship with the appellant ended on 24 December 2001.
Ms Watson gave evidence that she remembered the night when V stayed at her house overnight. She said she went to bed at about 10.30 pm and that at that stage V and the appellant were both sitting on the lounge, watching TV.
A little later she got up and answered the phone, at which stage she passed the door of the lounge room. She could hear the TV still going.
She remembered that V left the next day.
Her evidence was that the appellant telephoned her on the afternoon of the day of his arrest, and that that was when she first became aware that he had been arrested. He was then at the police station. She came to see him there. Her evidence was that she had a conversation with him as follows:
“A.... I asked how he was and he said ‘Good’ and I asked Bradley if he had had something to eat and he said ‘Yep’. And I said ‘What have you got to sleep on in there?’, and he said - can I say?
Q.Yes.
HIS HONOUR
Q.Just tell us what he said.
A.He said ‘A fucking wooden bed and a fucking wooden pillow’. And I asked him if he’d done this and he said ‘Oh, but I’d never hurt my own daughter’, and I said ‘I’m not talking about our own daughter’, I said ‘Did you do this to [V]?’ And he said ‘I’m not allowed to tell you’. And I said ‘Did you fucking do this?’. And he said ‘Yep’.
XN
Q.He said ‘Yep’. Did you say anything else in response to that.
A.I said ‘Why?’. And he said ‘I don’t know, but I need help’.
Q.He said ‘I don’t know, but I need help’. Did you say anything in response to that.
A.I said ‘Well, you’ll get help’. And he said ‘What, in fucking gaol?’ And I said ‘Yes, well, you’ve done this, so you’ll have to suffer the consequences’.”
Through Ms Watson, the prosecution tendered two letters which the appellant had written to her while in custody. She said that she had received them early in 2002.
Part of the first letter reads as follows:
“I am so sorry I hurt you I did not mean to. At least in here I can get help for my self. Could you do me one favour please take the kids down to see mum and Martin. They miss them heaps. I told mum not to say my name around you if you took the kids to see her. I[t] is not mums fault this happened its my problem I have to deal with it not her. She loves you and the girls. Don’t blame mum for what I have done she didn’t do it I did.”
Part of the second letter reads:
“I do appolagize for hurting you all I can do is sit in here and fix my self.” [sic]
On the afternoon of 24 December 2001, prior to his arrest, the appellant was interviewed by police officers. The interview was videotaped. A written transcript as well as the video cassette were tendered.
In his police statement the appellant admitted that V stayed at his house on the night of 16 December 2001, but denied any touching of her then, and denied any indecent touching of her on any other occasion.
Dr Bjelic gave evidence of his examination of V on 24 December 2001. He said that there was “a light redness and swelling of ... [V’s] labia majora”. He thought that it was “within normal limits. ..... It was very slight, very mild redness ... there was very minor swelling”.
The statement of Dr Woodard-Knight was tendered by consent. She confirmed that she had examined V on 27 December 2001. She thought that V had “... normal external pre-pubical genitalia. The more internal genitalia, including the hymen, appeared normal, too”. She offered the opinion that although the genital examination was normal, “sexual interference such as genital touching may not necessarily result in permanent changes to the genital tissues”.
The appellant gave evidence. He did not call any other witnesses.
Contrary to his denials when interviewed by the police, the appellant admitted that on the occasion of the first count, he had touched V in the area of her vagina with his hand. His evidence was:
“A.Belinda was in feeding Shelby and Ella was still running around and [V] asked to watch a movie and I went through the video cabinet and she said ‘Can I watch Waterworld?’ I said ‘Yes, sure you can’, and I put it on. Belinda finished feeding Shelby and we put Ella to bed about half past nine, 10. I played on the computer until about 10 o’clock. Belinda was out in the kitchen having a cup of coffee. At about half past 10 she went to bed. I sat on the lounge, watched a movie with [V] and I leant over on my side to watch the movie. I could see up her nightie. I don’t know why I did it, but I put my hand in her knickers and touched the top of her vagina, pulled my hand out. Realised what I had done. Hopped up, went out and got a drink and went to the toilet. Come back in, asked her would she like to finish watching the movie, she said ‘No, I would like to go to bed’. I switched off the TV, closed the lounge room door and went to bed.
Q.When you were sitting on the couch.
A.Yes.
Q.And you have told his Honour you leant over and put your hand under her knickers on her vagina.
A.That’s correct.
Q.You did that on purpose.
A.Yes, and I don’t know why.
Q.Did you put your finger or fingers in her vagina.
A.No, that did not happen.
Q.After you had done that, or the next day maybe, how did you feel about what you had done.
A.Repulsed, sick. Couldn’t believe that I had done such a thing.”
The appellant denied having touched her indecently on any other occasion.
As for his failure to admit to the police interviewer that he had touched V, his evidence was:
“A.I was ashamed and in denial. I just couldn’t believe I did such a thing and I was scared.”
He explained his letters to Ms Watson on the footing that his admission that he had a “problem” related to his admitted isolated act of touching V and no more.
The appellant gave evidence that he had no previous criminal convictions, and that the only previous contact he had had with the law was when he was dealt with in relation to a charge of common assault in 1996 in the Port Lincoln Magistrates Court, when the complaint was dismissed without conviction.
The judgment
In his reasons for judgment, the trial judge summarised the evidence given by the witnesses for the prosecution, and then referred to the defence case, more particularly to the evidence of the appellant.
The trial judge took into account the accused’s previous good character, and then dealt with the evidence given by the appellant with respect to the admitted indecent assault on 16 December 2001.
In expressing his conclusions, the trial judge stated that he had considered “all of the evidence very carefully”. He added:
“I remind myself that in relation to counts two and three there has been no complaint made by [V] ..... and the Prosecution’s case is totally reliant upon her evidence. I also remind myself that I must treat her evidence with special care in relation to counts two and three because these events took place some years ago.”
He went on to say that he was most impressed with V as a witness and that he had no doubt that she was telling the truth. He found beyond reasonable doubt that the accused was guilty of the conduct the subject of counts 1, 4 and 6.
As for the appellant’s evidence, his findings were as follows:
“31I found the accused a most unimpressive witness and I did not accept his explanation that the reason he admitted to his defacto wife that he did something to [V] and needed help was merely because he had toucher her and nothing else. I also reject his explanation that that touching was the explanation for his letter (Exhibit P3) in which he said that he has a problem that had to be dealt with. Although the denial he made to the Police of anything improper happening does not provide positive evidence of his guilt it is another factor which does not fill me with confidence as to the truth of the evidence which he has given in Court.”
The argument on appeal
Mr Cuthbertson, who appeared for the appellant on the hearing of the appeal, advanced what were essentially three propositions, all of which, in one way or another, were based on alleged inadequacies in the trial judge’s reasons.
His first argument was that the reasons were inadequate in that they did not expressly incorporate a warning of the kind adverted to by the High Court in Longman,[1] more particularly with respect to counts 4 and 6, given the length of time between the alleged incidents the subject of those counts and the date of the first complaint.
[1] Longman v The Queen (1989) 168 CLR 79.
Mr Cuthbertson’s second point was that the reasons are inadequate if, as he maintained was the case here, the trial judge has, on what might be described as “undifferentiated evidence”, failed to give specific reasons as to why he preferred one account as opposed to the other.
The third ground advanced by Mr Cuthbertson, which was really an extension of the first point which he made, was that the trial judge’s reasons did not adequately explain how he dealt with the issue of the delay in making a complaint, more particularly with reference the two earlier incidents.
Before dealing with each of those three grounds, I will make some general observations as to the extent of the reasons which should be given by a trial judge when sitting without a jury.
The obligation to give reasons
The nature and extent of the obligation of the trial judge in a trial by judge alone to furnish reasons was the subject of extended comment by the Full Court, more particularly in the judgment of Doyle CJ in R v Keyte.[2]
[2] (2000) 78 SASR 68.
In Keyte, the appellant complained that the judge, who was judge of the District Court, who heard a trial on an information without a jury, had failed to give adequate reasons for rejecting the evidence of the defendant and his witnesses in favour of the evidence of the witnesses called by the prosecution, and for entering a verdict of guilty on the basis of the evidence which he accepted. The appellant also complained that the judge erred in law in failing to direct himself as to various matters of law and fact.
As Doyle CJ pointed out in that case, the Juries Act 1927 which by s 7 provides for a right of election by an accused to be tried by judge alone, is silent as to the obligation of the judge to give reasons for the judge’s decision.
However, as Doyle CJ points out, there are several reasons why an implication that some reasons must be given should be inferred. See the following passages from his judgment:
“41In my opinion the availability of the remedy of an appeal, on grounds identified by s 353(1) of the Criminal Law Consolidation Act, strongly suggests that some reasons must be given by a judge when sitting without a jury. If reasons are not given, the remedy of appeal will be significantly restricted by the exercise of the right to be tried by judge sitting alone. It is not impossible that Parliament intended that this consequence follow the exercise of that right, but I suggest that it is unlikely that that was the intention.
42The conclusion that reasons must be given is supported by the fact that the function of deciding innocence or guilt is now to be performed by a judge, and the giving of reasons for a decision is an established incident of the judicial process. The conclusion is also supported by the community interest in the administration of justice. To this one could add the point made by the High Court in Fleming v The Queen (1998) 197 CLR 250 (“Fleming”) at 260, that: “... justice must not only be done but also be seen to be done.”
43One could also say that the parties and the public are entitled to know, as a matter of public accountability, how and why the Court made its decision. These latter points may be no more than particular aspects of the point earlier made, that is, the community interest in the due administration of criminal justice.”
Doyle CJ then goes on to address the question of the extent of the reasons required. In dealing with this aspect of the matter, he adopted with approval the dictum of Mahoney JA in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd:[3]
“But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.”
[3] [1983] 3 NSWLR 378 at 385-386.
A little later, Doyle CJ observed:
54“This is not the case in which to decide in a comprehensive way the extent of the obligation to give reasons for a decision as to guilt or innocence in a trial without a jury. It is not appropriate to do so because it is not a matter on which the court has had the benefit of full submissions. Different considerations might apply to matters of law and of fact, to a verdict of guilty and a verdict of not guilty. I should make it clear that, in what I have already said, there is no assumption that in such a case the reasons for decision must replicate the instructions that would be given to a jury, and also include detailed findings on all issues of fact.”
Doyle CJ continued by stating that there was “considerable force” in the dicta of Kirby P reported in R v Winner,[4] in the course of which Kirby P observed that:
“... it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof.”
[4] (1995) 79 A Crim R 528 at 530-531.
Doyle CJ doubted that it was necessary in a judge’s reasons to give “express references to judicial instruction which might be required for a jury trial”.
The decision in Keyte, which was that a re-trial should be ordered, was predicated upon the view of the Full Court that, bearing those principles in mind, the judge’s reasons in that case nonetheless fell short of what was necessary in the proper discharge of his function, more particularly by reference to the absence of any explanation as to his use of evidence of uncharged acts and the use of evidence on one count in proof of another count.
Importantly, Doyle CJ did not find it necessary to decide whether it was necessary for the judge to identify the “central evidence upon which he was prepared to act, and the basis upon which he preferred the evidence of [the complainant] to that of the appellant”. Importantly, he observed as to this aspect of the matter:
“56... I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.”[5]
[5] Ibid para 56, pages 80-81. See also R v McKenzie (unreported) judgment of the Court of Criminal Appeal (Olsson, Perry and Gray JJ) 31 August 2001, judgment No [2001] SASC 279 per Perry J at paras 10-17.
The adequacy of the reasons in this case

Mr Cuthbertson for the appellant complained that the trial judge did not adequately explain in his reasons why he rejected the evidence of the appellant and accepted beyond reasonable doubt the evidence of V.
However, it seems to me that this is one of those cases where the trial judge’s preference for the evidence of V over that given by the appellant “... rests substantially upon the impression made by” the witnesses when giving evidence.[6] In those circumstances, in my view, there is no requirement that the trial judge should attempt to give a detailed explanation for the decision to prefer the evidence of the one witness against that of another. The trial judge said that he was most impressed with V as a witness, and had no doubt that she was telling the truth. V’s evidence was adequately tested by close cross-examination by counsel for the appellant, and the trial judge had an adequate opportunity to assess her credibility insofar as it turned on the impression she gave while in the witness box. In the relevant respects her evidence appears consistent. Its consistency was reinforced, at least with respect to the incident the subject of count 1, in that this was followed by a prompt complaint to her mother.
[6] R v Keyte (supra) at para 56, page 81.
The trial judge, with reference to V, used the expression “she is telling the truth”. There is a difference between honesty and reliability. But it is implicit from the findings reached by the trial judge of guilt beyond reasonable doubt as to the three counts upon which the convictions were recorded that he accepted the reliability of her evidence.
I have already cited the passage in the judgment of the trial judge in which he described the appellant as a “most unimpressive witness”. Furthermore, he was entitled to take into account the appellant’s denial to the police of any impropriety, as a matter going to his credit.
Mr Cuthbertson submitted that it was unsatisfactory and likely to create a “feeling of injustice” for his client to be told that he was disbelieved and that the evidence of the complainant was accepted with a more detailed explanation.
As to that submission, I would make two comments.
In the first place, there will sometimes be cases where very little can be given by way of an explanation for preferring one witness to another. As I have suggested, in my view, this is one such case.
In the second place, the decisions reached by a jury, including the jury’s decisions as to the central factual issues in a case, are inscrutable, in the sense that no reasons are given. I have seen no evidence to support the view that this is likely to create a “feeling of injustice” in an accused person, or that it otherwise operates to impair public confidence in the administration of justice.
I turn to deal with Mr Cuthbertson’s argument as to the obligation of the trial judge to incorporate in his reasons a warning relating to the delay between the incidents the subject of counts 4 and 6 and the first complaint made by V.
In a case such as this, the trial judge owes a duty to deal with the question of delay.
The proper approach to the question of the giving of a warning to a jury in such cases is the subject of comment by Doyle CJ in R v Green[7] where he observed:
36“.... In some cases, depending on the circumstances, a comment from the trial judge will suffice, in other cases a firm and emphatic warning that it would be dangerous to convict on the evidence unless the jury, scrutinising the evidence with care, are satisfied of its truth and accuracy, will be necessary.[8] ...... In this area, nothing is to be decided by formula or by rigid rules. Whether a comment or a warning is called for, and the terms of any comment or warning, will always depend upon the circumstances of the particular case.”
[7] (2001) 78 SASR 463 at 473. See also Longman v The Queen (1989) 168 CLR 79.
[8] Citing Crampton v The Queen (2000) 75 ALJR 133.
In the case of trial by judge alone, if the circumstances would have called for a warning to the jury, a reference to such a warning should appear in the trial judge’s reasons, together with an indication that the warning has been heeded.[9]
[9] R v Green (supra) at para 40, page 474.
As to this aspect of the matter, the learned trial judge made the following comment in his reasons:
“27.... I have considered all of the evidence very carefully. I remind myself that in relation to counts two and three there has been no complaint made by [V] and the Prosecution’s case is totally reliant upon her evidence. I also remind myself that I must treat her evidence with special care in relation to counts two and three because these events took place some years ago.”
Although some greater elaboration might have been called for in a direction to a jury if a jury had been trying the case, in my view, the reference which I have quoted in the trial judge’s reasons indicates a sufficient attention by the trial judge to this aspect of the matter. What is important is that he treated the evidence of V “with special care”, which after all, is the purpose for which a warning would, in circumstances such as this, be given.
The appellant draws attention to three arguments which were put by his counsel in the course of his closing address at the trial. They are:
The absence of any distress by the complainant in having dealings with the appellant who had, on her account, previously sexually interfered with her.
The complainant’s keenness to stay at the appellant’s house when, on her account, he had previously sexually interfered with her.
The lack of specificity in relation to the allegations other than count 1.
There is no reason to suppose that the trial judge did not take those matters into account. Furthermore, he was not obliged to refer in his reasons to every argument which had been put to him. I repeat the observations which I made in the course of my judgment in the matter of R v McKenzie.[10]
[10] (Unreported) Court of Criminal Appeal, 31 August 2001, judgment No [2001] SASC 279.
McKenzie was a case of multiple indecent assaults and acts of incest involving a 13 year old girl. In the course of the judgment which I delivered in that case, I made the following observations:
“14.In a case such as this, defence counsel may, for example, attack the credibility of a complainant upon a host of grounds, including alleged discrepancies, either internal to the complainant’s evidence or as between the complainant’s evidence and other evidence in the case. It will often be sufficient in such circumstances for the trial judge simply to indicate that, notwithstanding the criticisms advanced, he or she prefers the evidence of the complainant.
15I have taken the trouble to make those observations in light of the fact that there is an increasing tendency in both civil and criminal matters to complain as to the adequacy of the reasons given by the trial judge.
16Judgements are not to be regarded as check lists in which every point raised in the case needs to be ticked off. Reasons for judgment need only deal with the essential steps in the reasoning process by which the court’s conclusion has been reached. They do not need to deal with every argument. Neither do the reasons need to deal with every item of evidence.
17All that is required is a statement of the essential findings of fact, a ruling on any contentious issues of law which it is necessary to resolve in order to decide the case, and the essential steps in the reasoning process by which the decision is reached.”
I would dismiss the appeal.
WILLIAMS J I agree that this appeal should be dismissed for the reasons given by Perry J.
BLEBY J: I agree that the appeal should be dismissed. I agree with the reasons of Perry J. I merely add a few observations of my own on two matters argued by the appellant.
The first concerns the alleged failure of the trial Judge to give reasons for preferring the evidence of the V to that of the appellant. In R v Keyte (2000) 78 SASR 68 at [48], Doyle CJ cited with approval a passage from the judgment of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259:
“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.”
In this case the key disputed facts in relation to each charge were whether the appellant had performed an act of sexual intercourse with V. The appellant admitted in evidence an act of indecency, but not of sexual intercourse, in relation to one occasion, namely count 1, but denied any indecent contact concerning the others. The trial Judge’s findings in respect of those three crucial issues, and what occurred, were clearly stated. He also made findings on subsidiary factual issues which were relevant to his reasoning in arriving at those three factual conclusions. He was obliged to state “generally and briefly” the grounds which led him to the conclusions which he reached. One of the grounds and, as it happened, an important ground, was that he preferred the evidence of V to that of the appellant, and that he accepted her evidence. The obligation to give reasons did not, in the circumstances of this case, require any greater elaboration than was given as to why he accepted V’s evidence.
The second observation concerns the alleged failure of the trial Judge to give himself a Longman[11] warning in respect of counts 4 and 6, namely that it would be dangerous to convict on the complainant’s evidence alone unless, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, the Judge is satisfied as to its truth and accuracy. A Longman warning is often required to include reference to the effect of delay on the ability of the accused to mount an adequate defence. The appellant’s complaint here was that the trial Judge did not remind himself of that factor, but merely gave himself a general warning of the need to treat her evidence “with special care…. because these events took place some years ago”.
[11] Longman v The Queen (1989) 168 CLR 79
This Court has made clear, on good authority, that the need for and content of a Longman warning will depend very much on the circumstances of the case: R v Green (2001) 78 SASR 463 at [36].
Relevant circumstances include the extent of the delay in bringing the charge. The evidence in this case never established precisely when the events in question in relation to counts 4 and 6 occurred. All that V could say in relation to count 4 was that she was aged six, seven or eight, and that it occurred in the house where she was living with her mother but before her mother and step-father separated for the second time. Other evidence established that the first separation occurred “in 1997” for a period of eight months. The second separation occurred in July 2001. That would suggest that the event occurred sometime between, at the earliest, September 1997 and, at the latest, July 2001. V turned six on 22 August 1997. The appellant was arrested and questioned about the offences in December 2001. The relevant period is therefore a period not more than four years and three months and not less than six months before the appellant’s arrest.
According to V’s evidence, the events giving rise to count 6 occurred at the appellant’s house sometime after the birth of his first daughter but before the birth of his second. Other evidence indicated that the first daughter was born on 1 July 2000. That would mean that count 6 was alleged to have occurred within a period of 18 months of the appellant’s arrest. The delay in both cases was therefore significant but not extraordinary.
However, there were other relevant circumstances. The appellant was the brother of V’s step-father. There were many occasions on which they were in each other’s company over a number of years to December 2001. There were many opportunities for the appellant to deal indecently with V over that period. Those opportunities were not denied. V alleged a course of conduct over a period of a number of years to December 2001. It is not surprising that the actual dates for the offences in question could not be particularised, save by reference to a place, time of day, who else, if anyone, was present in the house, and perhaps by reference to some other event or occasion. The nature of the appellant’s defence was not lack of opportunity but that when he was in V’s company, and save in respect of count 1, he never acted indecently towards her at all. Given V’s inability to particularise an actual date, from the point of view of the appellant’s ability to mount an adequate defence, it made little difference whether the events happened within six months or six years of December 2001.
This was very different from the situation, for example, of an allegation of a single sexual assault on an identifiable occasion some many years before where a defendant may be seriously prejudiced in his defence either by his inability to locate material witnesses or by his and their inability to recall events or details from so long ago.
What was important in this case was that the delay in making the complaint did not raise a real possibility of recent invention on the part of V. The trial Judge was alive to that possibility and dealt with it. In the circumstances of this case, and allowing for some greater economy of language than might be expected if the Judge were directing a jury, the Judge gave himself sufficient warning, which he heeded, in deciding to act on V’s evidence.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.   Longman v The Queen (1989) 168 CLR 79.
2. (2000) 78 SASR 68.
3. [1983] 3 NSWLR 378 at 385-386.
4. (1995) 79 A Crim R 528 at 530-531.
5. Ibid para 56, pages 80-81. See also R v McKenzie (unreported) judgment of the Court of Criminal Appeal (Olsson, Perry and Gray JJ) 31 August 2001, judgment No [2001] SASC 279 per Perry J at paras 10-17.
6.   R v Keyte (supra) at para 56, page 81.
7. (2001) 78 SASR 463 at 473. See also Longman v The Queen (1989) 168 CLR 79.
8.   Citing Crampton v The Queen (2000) 75 ALJR 133.
9.   R v Green (supra) at para 40, page 474.
10. (Unreported) Court of Criminal Appeal, 31 August 2001, judgment No [2001] SASC 279.
11.   Longman v The Queen (1989) 168 CLR 79

[2003] SASC 77

21 March 2003