R v Roberts - [2001] NSWCCA 163

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Roberts [2001] NSWCCA 163

FILE NUMBER(S):
60039/01

HEARING DATE(S): 20 September 2001

JUDGMENT DATE: 05/10/2001

PARTIES:
R v Bruce Roberts

JUDGMENT OF: Giles JA Howie J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 060039/01

LOWER COURT JUDICIAL OFFICER: Stewart ADCJ

COUNSEL:
R Hulme - Crown
S Odgers SC - Appellant

SOLICITORS:
S E O'Connor - Crown
D J Humphreys - Appellant

CATCHWORDS:
CRIME - sexual offences - complaint 20 years after the events the subject of the charges - trial 3 years thereafter - no Longman direction - no request for direction - whether direction required - whether appeal should be upheld although no request for direction - failure of Crown and defence counsel to fulfil duty to Court. D.

LEGISLATION CITED:

DECISION:
Appeal allowed, convictions and sentences quashed and new trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
CA60039/01
DC99/11/1025

GILES JA
HOWIE J
CARRUTHERS AJ

Friday 5 October 2001
R v Bruce ROBERTS
Judgment

GILES JA: The appellant was indicted on seven charges of offences of sexual abuse of the complainant in the period or parts of the period 1 December 1976 to 31 December 1978. The complainant was born on 28 November 1968, and was from 7 to 10 years old at the times of the events the subject of the charges.
The charges may be sufficiently described as indecent assault (fellatio) at Kurnell (count 1); buggery at Kurnell (count 2); buggery at Kareela (count 3); indecent assault (fellatio) at Kareela (count 4); assault (grab testicles) at Kareela (count 5); indecent assault (fellatio) at Sydney (count 6); and procure act of indecency with another male person (pose naked for photographs) at Kareela (count 7).
The events the subjects of counts 1 and 2 were alleged to have occurred on the same occasion. The events the subject of count 3 were alleged to have occurred on a separate occasion from the events the subject of counts 4 and 5, but the events the subjects of counts 4 and 5 were alleged to have occurred on the same occasion. The events the subject of counts 6 and 7 were alleged to have occurred on separate occasions again.
The appellant was found guilty of all charges. He was sentenced to an effective total term of ten years imprisonment with a non-parole period of seven years.
Evidence in the Crown case was given by the complainant and by the person, whom I will call Guy, alleged to have been the other person in the events the subject of count 7. Evidence was also given, over the appellant’s objections, by a person whom I will call Dean of a number of occurrences of sexual abuse very similar to those alleged against the appellant in relation to the complainant, and by another person whom I will call Brett of one occurrence of sexual abuse of a similar kind. These persons were of the same age or slightly older than the complainant at the times of the occurrences. The evidence of Dean and Brett was allowed as tendency and coincidence evidence, and the jury was appropriately directed as to the use which could be made of it. The appellant’s case included acknowledging that he had pleaded guilty in 1979 to two charges of offences of sexual abuse of Dean, but he denied the more numerous occurrences of which Dean gave evidence.
The appellant appealed against conviction and sought leave to appeal against sentence.
There was a single ground of appeal as to conviction, namely, that the trial judge “erred in failing to give any directions to the jury regarding the delay in complaint”.
The complainant first went to the authorities in 1997, about 20 years after the events the subject of the charges. The trial was in late 2000. The complainant had had no contact with the appellant for about 15 years, but said that when the appellant arrived at a motel conducted by the complainant’s mother in Queensland in 1997, where the complainant was present, he “had a rush of emotions”; he then went to the authorities.
In his evidence in chief the complainant said that he did not tell his mother about the events of 1976-1978 when they occurred because, his father having separated from his mother, he regarded the appellant as a father figure and an authority figure as well as a friend, and he did not want to jeopardise the fun he had with the appellant which he did not have with his parents; he said that later he became very scared of the appellant and very submissive because the appellant said that he (the complainant) would be thought dirty and disgusting and might be put in gaol. The cross-examination of the complainant touched upon failure to complain at the time of the events or earlier than 1997, but really made nothing of it.
In re-examination the complainant was asked whether there was any reason why he did not go to the police until 1997. Objection was taken on behalf of the appellant. The appellant’s counsel agreed that he was not going to raise that “all these terrible things happened” yet the complainant did not go to the police until 1997, and said that he was only going to tell the jury that the complainant did not go to the police until 1997. The question was rejected. Counsels’ addresses were not available to us, but it was not suggested that the appellant’s counsel departed from this position.
The trial judge directed the jury as to the possible unreliability, because of their youth at the relevant times, of the evidence of the complainant and of the other witnesses called for the Crown who were of much the same ages. His Honour said -
“I now wish to give you a direction as to the reliability of the evidence given by some of the prosecution witnesses, namely [here the witnesses were named]. They were all young at the time you will remember, seven, eight or nine.
I think that [one of the witnesses] might have been a bit younger. I direct you that the law requires me to warn you that where there is evidence the reliability of which may be affected by the age of the witness, that evidence may be unreliable. It may be unreliable because the witnesses were young. They were young when they say these things happened. There is a need for caution on the part of the jury in determining whether to accept the evidence and what weight should be given to it. You may of course accept it.
But before you do so, you should look at it carefully and with caution. That is a direction that is given and required to be given by judges according to the law as it presently stands.”
The trial judge also directed the jury specifically as to the evidence of the complainant, saying -
“In this case there is one witness who is essential to the proof of the Crown case. That witness is [the complainant]. You should therefore examine and scrutinise his evidence with great care before you decide that a verdict of guilty should be brought in. You should only find the accused guilty if you are satisfied beyond reasonable doubt of the truth of the evidence of that witness.”
Delay was not part of these directions. It arose in the summing-up only when the trial judge said -
“The Crown says in his case some of the things that happened, or that the Crown alleges happened, and which you must find either happened or did not happen to your satisfaction beyond reasonable doubt, are the things that happened to these young boys. The Crown says that it is in that category. You do not forget those things. And the Crown also puts to you although this happened a long time ago and people cannot be expected to remember every precise detail that this applies to the Accused too.
The Crown puts to you: how is it that he cannot remember some of the details of two serious incidents in his life, where he concedes that he did have anal intercourse with [Dean].
The Accused says it was a long time ago and it was. Mr Ikners puts to you that it was a long time ago. The Crown puts to you that it was a long time ago. Whichever way you look at it, it was a long time ago. But the Crown puts and indeed Mr Ikners puts that these things would have been imprinted on these witnesses’ minds forever. When I say forever, I mean during the rest of their lives.”
The reference to “this applies to the accused too” was followed by apparent use of inability to remember against the appellant. That apart, it seems that the Crown had invited the jury to conclude that the evidence of the witnesses was reliable notwithstanding the events had happened a long time ago because, subject to inconsistencies which were only to be expected and themselves excluded complicity between the witnesses, the events of which the witnesses spoke were memorable; and that counsel for the appellant had invited the jury to conclude that the inconsistencies showed unreliability although the events had happened a long time ago because the events were memorable.
The jury was not otherwise given directions in relation to the possible significance of the passage of time between the events of 1976-1978 and the complainant going to the authorities in 1997, significance either to the credibility of the witnesses or to the evidence able to be obtained by the appellant in order to test the Crown case and put his own case. This, particularly the latter, was the basis for the ground of appeal.
In Longman v The Queen (1989) 168 CLR 79 at 86 Brennan, Dawson and Toohey JJ re-stated the over-riding principle that a warning should be given whenever it is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. The particular occasion for a warning in that case was that the charges were of sexual abuse over 20 years before the trial. Their Honours said (at 90-91) -
“But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them … . That factor was the applicant’s loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. 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 … 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, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”
In R v Johnston (1998) 45 NSWLR 362 Spigelman CJ, with whom Sully and Ireland JJ agreed, considered Longman v The Queen and cases which had succeeded it.
His Honour cited the passage from Longman v The Queen which I have set out, and said (at 371) -
“There are two features of the Longman warning which should be emphasised. First, the jury is to be told why it is “dangerous to convict” namely, the delay meant that the evidence of the complainant could not be ‘adequately tested’. Secondly, the jury is to be told how they should go about their task because of the identified danger namely, ‘scrutinize the evidence with great care’.”
After referring to other cases, his Honour said (at 375) -
“A review of those authorities suggest[sic] the following propositions relevant to the determination of this case:
(i) Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair.
(ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt;
(iii) The need for, and content of, any comment will depend on the circumstances of the case.
(iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case.
(v) Where it appears from the course of evidence, including cross-examination or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties.
(vi) Where the summing-up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate.
(vii) In some cases a warning which uses terminology such as ‘dangerous’ or ‘unsafe’ to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v).”
As is apparent from both the reason for the warning and what was said in R v Johnston, delay between the events the subject of a charge and the trial does not always require a warning of the kind described in Longman v The Queen. The reason being the danger that the jury may not from their own experience appreciate the effects of delay on the accused’s ability to defend himself, regard must be had to the particular circumstances to assess whether the danger exists. So it was said in R v PAH (NSWCCA, 18 December 1998, unreported) by Wood CJ at CL, with whom Sheller JA and Dunford J agreed -
“Although it will very often be necessary for such a direction to be given, that will depend upon the circumstances of each case, including the length of time that has passed; the specificity and nature of the allegations made; the opportunity for investigation that might reasonably have been expected to exist had an earlier complaint been made, and that which has been lost with the passage of time; any evidence given by the accused of unsuccessful attempts to investigate the allegations, and the manner in which the prosecution itself deals with the aspect of delay. Additionally, it is appropriate to have regard to whether or not a direction was sought at trial.”
But if a warning is required, the reason for the warning means that it is insufficient simply to tell the jury that it is dangerous to convict on the evidence of the complainant (or if the circumstances raise it other witnesses for the Crown) unless the evidence be scrutinised with greater care. The reason must be made known, and then the jury should be told of the consequent need to scrutinise the evidence with great care.
Longman v The Queen was reaffirmed in Crampton v The Queen (2000) 176 ALR 369. It was there held that, although the trial judge had referred in general terms to the potential disadvantages of delay to the accused, what was said was too little and insufficiently emphatic. Gaudron, Gummow and Callinan JJ, with whom McHugh J appears to have agreed on this point, said (at [45]) -
“The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury.”
In Doggett v The Queen (2001) 75 ALJR 1290 the majority considered that “a Longman direction” was required notwithstanding that there was powerful corroboration of the complainant’s evidence.
Gaudron and Callinan JJ set out (at 1297) a number of reasons why, in the particular circumstances, such a direction was required, and said -
“The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary. That exercise should more appropriately be carried out in the overall assessment of the case, if and after error has been established, to enable the Court to decide whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied.”
Kirby J said (at 1310-11) that corroboration did not negate the need for a warning, if it was otherwise required, because the danger of a jury failing to take into account “the special forensic dangers mentioned in Longman” remained.
In the present case the evidence of Guy, Dean and Brett was, with the exception of the two charges involving Brett to which the appellant had pleaded guilty, itself denied by the appellant and subject to the same potential impact of delay as the evidence of the complainant. The existence of that evidence is not a circumstance obviating the need for a comment or warning because of delay between the events of 1976-78 and 1997 or the trial.
In the circumstances of the present case, was a direction on that matter required? If it was, the precise formulation of the direction will not be of great significance, because no relevant direction at all was given.
It is material to bear in mind the youth at the time of the complainant, Dean and Brett, their evidence being central to the Crown case. The care with which, for that reason, their evidence was to be considered carried with it importance to the appellant of being able properly to test it and to put forward his own case. This, in my view, was what Gaudron, Gummow and Callinan JJ had in mind in Crampton v The Queen when they said (at [45]) that the trial judge should also have “drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman”, including “the fragility of youthful recollection”.
The appellant identified particular matters said to constitute disadvantages in the conduct of his defence by reason of delay.
As to counts 1 and 2, the Crown case was that the indecent assault and buggery occurred after attendance at a blue light disco at a community hall in Cronulla. The complainant said that he went with the appellant in a Toyota Corolla or Corona to a place near the Kurnell oil refinery where the offences took place. The appellant’s denial that the offences occurred included denial of attending the disco or going to the Kurnell area, and he said that he did not have a Toyota Corolla or Corona at the time. It was submitted that the delay meant that he was unable to inquire into when discos had been held at the community hall and possibly to establish that he was elsewhere when, on the complainant’s evidence, he was meant to have attended the disco, and that but for the delay he could have sought to identify the site near the Kurnell oil refinery where the offences were alleged to have occurred so that the complainant’s evidence in relation to that site could be properly tested.

The appellant was able to produce a certificate from the motor vehicle authorities which, although it was not in the appeal papers, it was agreed showed that he bought a Toyota Corolla panel van in March or April 1980. To this extent he was able to meet the complainant’s evidence notwithstanding the delay. But the doubt thereby cast on the complainant’s evidence made it all the more important to ask whether the appellant had been otherwise prejudiced by the delay. In my opinion there is force in the submission that he may have been.
As to count 3, the complainant gave evidence that the buggery occurred at the appellant’s flat when he shared the appellant’s bed and his cousin, whom I will call Jason, slept on a fold-out bed in the lounge room. Jason was aged about five at the time. The complainant said that the appellant used a tube of white lubricant. He also said that the appellant took Jason into his bedroom and that he heard Jason complaining, weeping, and saying “No, no, no. It hurts. What are you doing?”. Jason was called by the Crown. He had no memory of any such occasion or of being hurt by the appellant. The appellant denied all these matters, and said that Jason had never been to premises he was occupying. The appellant submitted that, absent delay, Jason might have been able to say with certainty whether or not he had stayed overnight with the appellant and the complainant and whether at any stage the appellant was in bed with the complainant, and more importantly that he would have been able to say whether or not he had been hurt as suggested by the complainant’s evidence; he also submitted that a search could have been conducted of the flat to see if there was a tube of lubricant.
I do not think that this is of such force. A search for a tube of lubricant would have required very little delay, and there is no similarity with the delay in Longman v The Queen (cf R v The King (2000) NSWCCA 507 at [36], [60]): further it would have been obvious to the jury, if counsel for the appellant had sought to bring the point out, that after any significant delay any tube of lubricant would most likely not have remained.
In connection with the appellant’s flat, the complainant gave evidence of an occasion when he locked himself in the toilet to avoid sexual activity and then ran naked to the front door of the house of which the flat was part and was seen by occupants of the house. The appellant denied any such incident. One of the occupants of the house was called by the Crown, and said she had no memory of such an incident. It was submitted that, absent delay, the other occupants could have been called to give evidence about whether the incident occurred. There is some force in this.
As to counts 4 and 5, the complainant gave evidence that the occurrences were accompanied by the insertion of a pin on a number of occasions into his lower abdomen. This, together with the occurrences themselves, was denied by the appellant. It was submitted that timely complaint could have permitted a medical examination to see whether there was an injury to the complainant’s lower abdomen consistent with the insertion of a pin. Again, I do not think there is much force in this. This is not the kind of delay with which Longman v The Queen is concerned.
As to count 6, according to the complainant the indecent assault occurred at the house of the appellant’s father. He said he remembered a talking magpie and a lot of large trees. According to the appellant he was estranged from his father, and he denied ever taking the complainant to his father’s house; he also said that his family had not had a talking magpie, although it had had a noisy but non-talking galah. It was submitted that the delay meant that the occasion of going to the house could not be identified, and the appellant did not have the opportunity to establish that he had been elsewhere.
The appellant called his mother, who said that the family had not had a talking magpie. This was perhaps less compelling than production of the bird. It was not submitted that the appellant had been deprived of his father’s evidence, and we were informed that his father was still alive. The disadvantage to the appellant was less than it could have been. There was nonetheless some disadvantage.
As to count 7, it was submitted that in the absence of delay a search could have been made at places where the appellant lived or in his car for the photographs, so that if they were not found doubt would have been cast on the act of indecency alleged. To my mind this is speculative.
Two more general matters were raised.
First, there was evidence from the complainant that the appellant told him to sniff a rag with a chemical in it, and that he lost consciousness and awoke wearing different clothes. There was evidence from Guy of being shown an ether bottle by the appellant. The appellant denied the occurrence and denied ever having a bottle of ether. The Crown suggested in cross-examination that the appellant obtained a bottle of ether from the chemical laboratory of a school at which he worked as a cleaner. The appellant denied this, and said that he did not have access to the chemicals. It was submitted that, absent delay, the appellant could have called evidence to support his lack of access. There is some force in this.
Secondly, it was said that but for the delay the complainant and Dean and Brett could have been asked to describe the sexual activity without the knowledge of sexual activity they had obtained as adults, so that the delay had the potential to distort the evidence they gave. This invoked risk of unfairness of a rather different kind, but nonetheless prejudice to the appellant in that his ability to test the evidence of the complainant, Dean and Brett was impaired because of the maturity they had achieved. I accept that there is some force in this, although without concentration on knowledge of sexual activity. It is part of what McHugh J described in Longman v The Queen at 197-8 -
“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person's ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), pp 269-270.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely.”
Regard should be had to the fact that a direction was not sought at the trial. More than that, a reading of the transcript does not show the appellant’s counsel laying the foundation for a direction, for example by questions to bring out the inability of the witnesses adequately to detail the time and surrounding circumstances of the events or to bring out the unavailability of (for example) the other occupants of the house to which the complainant said he ran naked. The Crown submitted that it should be inferred that, in truth, the appellant was not hampered in his defence by the delay, and that a direction of the kind now in question was not called for.
The delay was twenty years and more. It was not suggested in cross-examination, or so far as appears from the summing-up in addresses to the jury, that there was collusion between the complainant, Dean and Brett. The appellant’s challenge to the complainant’s evidence was quite bluntly that the sexual activities had not taken place. It is, with respect, unfortunate that the Crown Prosecutor did not at least raise with the trial judge whether a direction in relation to delay should be given, even if the appellant’s counsel did not raise that matter. Any need, or desirability, for a direction could have been brought out and considered, even if in the result the appellant’s counsel considered that in the appellant’s best interests the direction should not be given.
I can not see a satisfactory reason why, in the present case, the appellant’s counsel would have deliberately chosen to put aside as a matter which might assist the appellant difficulties occasioned by delay in testing the evidence in the Crown case or adducing evidence in defence. I can only conclude that, regrettably, the matter was overlooked not only by counsel for the appellant but also by the Crown Prosecutor, and that both failed to raise with the trial judge whether the directions should include a comment or a warning of the kind indicated in Longman v The Queen.
As is apparent, I do not accept all the matters said by the appellant to constitute disadvantages in the conduct of his defence by reason of delay. The Crown submitted that difficulties to the defence would have been obvious to the jury and did not need to be pointed out, and that there were the directions to scrutinise the evidence of the complainant with great care and look at the evidence of the previously youthful witnesses with care and caution. I do not find it so evident that the difficulties to the defence would have been obvious to the jury, and the point of the direction is to ensure that the jury are aware and take account of any difficulties: so a direction to scrutinise with care and be cautious, without the further element identified in R v Johnston of why it is dangerous to convict, will not suffice. I do not reach my conclusion without doubts but, in my opinion, the circumstances in the present case were such that the direction should have been given. The trial miscarried.
The Crown submitted that, even so, there was no substantial miscarriage of justice. It was said that if a full and emphatic direction had been given the jury would most likely have regarded the difficulties occasioned to the defence as theoretical rather than actual, and that when the jury had been directed closely to scrutinise the complainant’s evidence the further direction would most likely have caused them to focus on the strength of the Crown case, to the detriment of the appellant.
It was a fairly strong Crown case, but that is relative. It may not have been so strong if delay had not impeded the appellant in testing it and mounting his own case. That is why the direction should have been given, so that the jury could assess the strength of the Crown case after being reminded of something which may not have occurred to them without the direction. It was not a case of an inadequate comment or warning, but of no direction at all. In my opinion, notwithstanding that the appellant’s then counsel did not seek the direction, leave should be given to rely on this ground of appeal, and it should not be concluded that no substantial miscarriage of justice has actually occurred.
It is unnecessary to address the sentences imposed on the appellant. I propose that the appeal be allowed, the convictions and sentences be quashed, and a new trial be ordered.
HOWIE J: I have had the benefit of considering the judgment of Giles JA in draft. I gratefully adopt his summary of the evidence and issues raised at the trial and his review of the relevant authorities applying to the ground of appeal raised. Had it not been for the decision in Doggett v The Queen (2001) 75 ALJR 1290, I would have favoured the dismissal of the appeal. However, I cannot distinguish the facts in the present case from those before the High Court in a way which would justify a different result than that determined by the majority of that Court.
It is clear that, according to the view of the majority in Doggett, the trial judge’s warnings to the jury were defective because his Honour did not bring to the attention of the jury the forensic disadvantages to the appellant brought about by the delay in complaint. The authority of the High Court compels a finding that this is a matter which the jury were incapable of fully appreciating without guidance by the trial judge, notwithstanding a delay between the alleged offence and trial of almost 23 years and the manifest obstacles which such a delay must place in the way of any accused person seeking to defend himself.
I am unconvinced that the specific matters now raised by counsel for the appellant and set out in the judgment of Giles JA have really the significance now being attributed to them or that they even occurred to defence counsel at the trial. Certainly, I am not persuaded that had they been raised with the jury the result of the trial would have been any different. Defence counsel took a tactical position, which was open to him, of avoiding the issue as to why the complainant delayed or the consequences of that delay apart from its affect upon the reliability of the evidence of the complainant and the other Crown witnesses. For this reason counsel objected to a question by the Crown of the complainant as to the reasons for the delay in complaint. As a result of defence counsel indicating that he was not going to criticise the complainant for the failure to promptly complain about the appellant’s conduct, the objection was upheld.
However, as I pointed out in R v Roddom [2001] NSWCCA 168, the reasons for the delay in complaint are irrelevant to a consideration of the effect of the delay upon the ability of the accused to defend himself. The trial judge is not necessarily relieved from giving directions as to the possible disadvantages to the accused caused by delay both in his ability to test the evidence of the Crown witnesses and in leading positive evidence to rebut the prosecution case simply because such a matter is not relied upon by defence counsel: R v Johnson (1998) 45 NSWLR 362 at 375. The trial judge has an overriding duty to ensure a fair trial to the accused. However, the trial judge is not to be required to take the position, often adopted by counsel on an appeal, of trawling through the evidence to find every conceivable aspect of the prosecution case which might have been the subject of investigation or rebuttal had there been no delay of any sort whatsoever. Disadvantages of real significance will be best appreciated by trial counsel and should be raised with the trial judge prior to the summing up: R v King [2000] NSWCCA 507 at [74].
I acknowledge that there is a difference in focus between a warning, such as was given in the present case, as to the danger of acting upon the complainant’s evidence because of the potential unreliability of that evidence and a warning as to the danger of acting upon that evidence because of the effect of the delay upon the ability of the accused to defend himself. But where a warning of the former category has been given and where there was no particular disadvantage occasioned to the accused identified which would not have been apparent to the jury, then, absent the authority of Doggett, I would not have found that the lack of the latter warning necessarily resulted in a miscarriage of justice.
The real question that has exercised my mind is whether the appellant should have leave under rule 4 of the Criminal Appeal Rules to rely upon the failure to give a Longman warning in the absence of any request by counsel at the trial for such a warning. I note that there was no provision similar to rule 4 which applied in Queensland and, therefore, had to be considered by the High Court in Doggett, see Kirby J at [147]. However, as Giles JA indicates, it is difficult to see any forensic advantage in the decision not to seek a warning as to the effect of delay. A request for such a warning would not have been inconsistent with what counsel had said at the time the objection was taken to the Crown’s question of the complainant as to the reasons for the delay in complaint.
I accept that generally speaking an accused should not have to bear the consequences of the failure of counsel at trial to seek a warning or direction from the trial judge which would be to the benefit of the accused. But unless there is a possibility of a miscarriage of justice arising from the failure of counsel to seek the warning or direction, then leave will not generally be granted to rely upon the point on appeal. This, in my opinion, is the difference in the approach to be taken where an appellant relies upon a ground of appeal as of right and where the appellant needs the leave of the court to argue the ground by reason of rule 4; see Clarke (1995) 78 A Crim R 226. Where leave is required, the appellant needs to show that there is at least the possibility of a miscarriage of justice arising from the failure to take the point; where the appellant has a right to rely upon the point, the Crown must prove that no substantial miscarriage of justice has in fact occurred before the proviso under s 6 of the Criminal Appeal Act can be applied.
But just as there appears to be a disinclination in appellate courts to rely upon the proviso in relation to an important ingredient of the law applicable to the trial, see Whittaker (1993) 68 A Crim R 476 at 488, so the Court should hesitate to apply rule 4 in relation to a warning which is considered by the High Court to be fundamental to the summing up of a trial of the nature of that in the present case. This might be viewed as a somewhat formalistic approach in that the warning is held to be necessary regardless of the attitude taken by the parties at the trial or the substantial issues litigated before the jury. But in the present case, it cannot be gainsaid that the appellant may have suffered some detriment by the extensive delay before prosecution, even if that detriment cannot be defined with precision. If that be the case, then applying present and binding authority it must be taken that there was a possibility of a miscarriage of justice notwithstanding that it was a very strong Crown case or my firm belief that the overwhelming probabilities are that the giving of the warning would not have made the slightest difference to the jury’s assessment of the evidence presented to them.
This is yet another case where a conviction must be quashed substantially because of the failure of counsel at the trial to fulfil their duty to the trial court. Whether or not defence counsel had any reason for failing to request a Longman warning is not apparent from the material presented to this Court. But certainly the experienced Crown Prosecutor could have no reasonable excuse for failing to draw the trial judge’s attention to the need to at least consider whether such a warning should be given and what its content should be.
Therefore, I agree with the orders proposed by Giles JA for the reasons given by him.
CARRUTHERS AJ: I have had the benefit of reading the judgments of Giles JA and Howie J in draft form. I agree that the appeal must be upheld, the convictions quashed and a new trial ordered. I form this opinion on the sole ground which was in my view available to the appellant, namely, that the jury did not have the benefit of a direction in accordance with the judgments of the High Court in Longman v The Queen (1989) 168 CLR 79, albeit there was ample evidence supportive of the complainant’s testimony, but see Doggett v The Queen (2001) 75 ALJR 1290.

It is particularly unfortunate that the trial process is now to be reactivated bearing in mind the strength of the Crown case, the emotional trauma which will be caused to the complainant, the other witnesses and the appellant, together with the considerable attendant cost to the community.

All this could have been avoided if counsel at the trial had drawn his Honour’s attention to the fact that he had overlooked the necessity for a Longman direction. Criminal trials, particularly those involving allegations of sexual assault where there has been a lengthy delay between the alleged offences and complaint to the authorities, now present complex legal problems for the trial judge. It is now more than ever imperative that trial counsel recognise and discharge the responsibility which they owe to the trial judge to provide whatever assistance he or she may require in order, so far as possible, to ensure that the directions to the jury are such that it can be said the accused has had a trial according to law.

For years this Court has emphasised in the strongest possible terms the need for trial counsel to take objections to the summing up or the admissibility of the evidence at the trial itself so that, if they are of substance, the judge may correct them and thus avoid appeals to this Court and possible second and sometimes third trials. This observation applies with equal force, of course, to the requirement of counsel to draw the judge’s attention to the need (if it has been overlooked), to give an appropriate warning of the kind under consideration here.

Reference may be made to such cases as R v Melville (1956) 73 WN 579 at 581; R v Parker [1974] 1 NSWLR 14 at 18; R v Tripodina (1988) 35 A Crim R 183 at 191-195, and R v Abusafiah (1991) 24 NSWLR 531 at 536.
More recent cases are R v Fordham (1997) 48 A Crim R 359; R v Mahoney (2000) 114 A Crim R 130; R v D H [2000] NSWCCA 360 and R v Fuge [2001] NSWCCA 208. In the last mentioned case Wood CJ at CL said (with the concurrence of Heydon JA and Sully J) at para 41:-
“It is timely for this Court to repeat the observations of Hunt CJ at CL in Abusafiah (1991) 24 NSWLR 531, and of Gleeson CJ in Sanderson NSWCCA 18 July 1994, in relation to the positive obligation which rests upon trial counsel to assist the Court in the conduct of a trial, and in relation to the need to give meaning to rule 4, whose validity was confirmed in Esposito NSWCCA 23 July 1990.”
However, the pleas by this Court to the same effect over the years, seem, in a vast number of cases, to have fallen on deaf ears.

In the earlier cases this Court was reluctant to grant leave required under Rule 4 of the Criminal Appeal Rules to allow, as a ground of appeal, an apparent error or omission in the summing up unless objection was taken at the trial, if it considered that no substantial miscarriage of justice had actually occurred: see for example R v Aziz [1982] 2 NSWLR 322 at 331. The High Court has made it clear in Wilde v The Queen (1987-1998) 164 CLR 365, that unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them, and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside. However, the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. This Court has necessarily erred on the side of caution when determining whether an error was or was not fundamental in the conduct of the trial. In the instant case the failure to give a Longman warning must be considered to be fundamental in the conduct of the trial.

The number of cases in which convictions are quashed (particularly in sexual assault cases) based upon points of law which were not raised at the trial, has become a matter of grave public concern. Members of the legal profession have a clear obligation to provide whatever assistance they can to the trial judge to avoid fundamental errors occurring in the conduct of the trial, with the inevitable quashing of the conviction by this Court when the point is raised on appeal - almost invariably by counsel who did not appear for the accused at the trial.

It should be the invariable practice for the trial judge, at the conclusion of the summing up, to enquire of counsel, in the absence of the jury whether he or she has overlooked any directions of law and appropriate warnings which should have been given to the jury as well as hearing submissions on the correctness or otherwise of directions of law which have in fact been given. If this practice is sedulously followed, it should go a long way to avoid the recurring cost, inconvenience and personal distress associated with a new trial.
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LAST UPDATED: 05/10/2001