R v SJF

[2002] NSWCCA 294

CITATION:	R v SJF [2002] NSWCCA 294
FILE NUMBER(S):	CCA 60508/01
HEARING DATE(S):	18/07/02
JUDGMENT DATE:	26 July 2002
PARTIES :	Regina v SJF
JUDGMENT OF:	Stein JA at 1; Greg James J at 2; Howie J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/3070
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

COUNSEL :	R. Herps - Crown S.J. Odgers SC - Appellant
SOLICITORS:	S.E. O'Connor - Crown D.J. Humphreys - Appellant
CATCHWORDS:	Criminal law - sexual offences - delay in complaint - whether warnings sufficient in the circumstances of the particular case.
LEGISLATION CITED:	Criminal Appeal Act 1912 - s 6 Criminal Appeal Rules - rule 4
CASES CITED:	R v Johnston (1998) 45 NSWLR 362 R v BWT [2002] NSWCCA 60 R v WRC [2002] NSWCCA 210 R v GPP [2001] NSWCCA 493 R v Roddom [2001] NSWCCA 168 R v SJB [2002] NSWCCA 163 Crampton v R (2000) 176 ALR 369 Longman v The Queen (1989) 168 CLR 79
DECISION:	Appeal against conviction is dismissed. Application for leave to appeal against sentence is refused.

60508/01

STEIN JA
GREG JAMES J
HOWIE J

FRIDAY 26 JULY 2002

R v SJF

JudgmenT

1 STEIN JA: I agree with Howie J.

2 GREG JAMES J: I agree with Howie J.

3 HOWIE J: The appellant was convicted after trial by jury of a number of counts of, what may be termed, child sexual assault offences. He was sentenced by her Honour Judge Latham to an aggregate sentence of ten years imprisonment with a non-parole period of six years. The appellant appeals against his conviction on a single ground of appeal being:

The trial judge erred in the directions given to the jury regarding delay in complaint.

4 The indictment upon which the appellant was arraigned before the jury contained nine counts as follows;

1. Between 10 November 1992 and 30 April 1993 at Burraga in the State of New South Wales did assault [the complainant] and at the time of the assault did commit an act of indecency on [the complainant] being under the age of 16, namely 11 years old.

2. Between 1 January 1993 and 31 December 1993 at Ambarvale in the State of New South Wales did have sexual intercourse with [the complainant] a child then between the age of ten years and 16 years, namely 12 years old.

3. Between 1 October 1994 and 31 April 1995 at Eaglevale in the State of New South Wales did have sexual intercourse with [the complainant] without the consent of [the complainant] knowing she was not consenting in circumstances of aggravation, namely that at the time of the offence [the complainant] was under the age of 16 years old, namely 13 years old.

4. Between 30 November 1998 and 31 April 1999 at Kearns in the state of New South Wales did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting in circumstances of aggravation, namely that at the time of the offence [the complainant] was under the authority of [SJF].

5. On 4 December 1998 at Casula in the State of New South Wales did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting in circumstances of aggravation, namely that at the time of the offence [the complainant] was under the authority of [SJF].

6. On 4 December 1998 at Casula in the State of New South Wales did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting in circumstances of aggravation, namely that at the time of the offence [the complainant] was under the authority of [SJF].

7. On 4 December 1998 at Casula in the State of New South Wales did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting in circumstances of aggravation namely that at the time of the offence [the complainant] was under the authority of [SJF].

8. On 3 February 2000 at Varroville in the State of New South Wales did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting in circumstances of aggravation, namely that at the time of the offence [the complainant] was under the authority of [SJF].

9. On 7 February 2000 at Kearns in the State of New South Wales did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting in circumstances of aggravation, namely that at the time of the offence [the complainant] was under the authority of [SJF].

5 The complainant in each count was the appellant's stepdaughter who was aged 11 years when the first offence was allegedly committed and 18 years at the date of the last alleged offence. The complainant first raised the allegations giving rise to the charges on 8 February 2000 to her boyfriend's mother and then made a formal complaint to the police on 10 February 2000. There was, thus, a delay in complaint of almost seven years in respect of the first count and one day in respect of the last count. The appellant was arrested soon after the complaint was made to police. The trial commenced on 13 June 2001.

6 The first count related to an occasion when the appellant took the complainant, his son and other friends on a camping weekend near Jenolan Caves. They stayed in a caravan in the bushland. The complainant alleged that, while she was in the bed in which the appellant, her brother and she slept, the appellant cuddled her and touched her on the breasts. He then put his hands under her pants and touched her on the vagina beneath her clothing. The complainant said she tried to move away from the appellant but he held her there by force. The complainant said she made no complaint about this conduct because she was scared of the appellant. The complainant and her mother asserted that at this time the complainant’s breasts were developed.

7 The second count arose when the complainant was in Year 6 at high school. At that time she would work on Saturdays with the appellant in his butcher shop at Ambarvale. The complainant alleged that on one occasion the appellant took her into the back room of the shop and, while she was lying on an old wooden table, took her clothes off and placed his penis in her vagina. This occurred shortly after the shop closed at 3 pm. The complainant said she was crying and told the appellant to stop because he was hurting her. The appellant then removed his penis from the complainant's vagina and ejaculated into a cup. During her evidence the complainant indicated from photographs that there had been a number of changes made to the shop since the date of the offence and that at the relevant time it was impossible to see into the back room from outside the shop. A witness was called by the Crown to give evidence as to the layout of the shop at that time.

8 The third count related to a time when the complainant was in Year 7 at high school and was living in Gould Road Eaglevale. The complainant was waiting in her mother's motor vehicle in front of the garage of their home. She turned on the ignition in order to listen to the radio but turned the key too far and started the motor. The vehicle lurched forward into the closed garage door damaging it. The complainant's mother telephoned the appellant and requested that he return home from work. When the appellant arrived home, he moved the vehicle out of the garage and the complainant's mother went to work, leaving the appellant to take the complainant to school. However, the complainant did not go to school and later that day in the garage, the appellant had penile vaginal intercourse with her.

9 Count 4 related to an occasion when the complainant was aged 17 and the family was living in Epping Forest Drive Kearns. The complainant's mother had gone to visit a friend whose daughter had recently given birth to a baby. The complainant was sitting on the lounge at the back of the house when the appellant had intercourse with her by placing his penis in her vagina. While this was happening, the complainant heard the sound of keys rattling in the screen door. She jumped up, grabbed her jeans and ran to an area near the pool table. By that stage the complainant's mother and her brother had walked into the room. The complainant was wearing only a shirt and no underwear. Her mother asked her what she was doing and the appellant responded that she was looking for her swimming costume.

10 Counts 5, 6 and 7 all arose from the one incident and related to a period when the complainant had left school and was working full-time with the appellant in his butcher shop at Moorebank. She was then aged 17 years. The complainant said that, after they finished work on 4 December 1998, she and the appellant travelled to the Jolly Knight Motel near Liverpool. She believed she was going to a Christmas party, to which she and the appellant had been invited by friends in the army. When they arrived at the hotel, the appellant told the complainant to remain in the vehicle while he went to the reception area. The appellant returned a short time later and the complainant accompanied him to a motel room. The appellant placed his hands on the complainant's breasts then put her hand on his penis saying, "This is why we’re here". The complainant and the appellant showered together and, while doing so, the appellant placed his penis in her mouth (Count 5). The appellant then told the complainant to get out of the shower, dry herself and get into bed. She did so and lay on her back. The appellant placed his fingers in her vagina (Count 6). The appellant then moved the complainant so that she was on her elbows and knees and placed his penis in her vagina. He then moved her onto her back and again placed his penis in her vagina (Count 7). At about 9:30pm the complainant and the appellant left the motel and went to a hotel for dinner. They arrived home at about 10:30pm. The complainant's mother asked where they had been and the appellant told her that they had gone to the army Christmas party.

11 Count 8 related to an incident on 3 February 2000. On that morning the complainant and the appellant were travelling to the butcher shop in a new Holden Senator. The appellant parked near some bushes at Varroville in a quiet area with few homes. This was about 5:40am and still dark. The appellant reclined the complainant's seat and then had sexual intercourse with her by placing his penis in her vagina. While this was occurring, the complainant saw two men walk past, one of whom was walking a dog.

12 Count 9 related to an incident on 7 February 2000 when the complainant's mother had gone bowling and her younger brother had retired to bed. The appellant told the complainant to go to his bedroom and she complied because she was scared of him. The appellant came to the room, shut the door and told the complainant to lie on the floor. He placed his penis in her vagina and then into her mouth. The next day the complainant left home.

13 There was evidence of sexual acts committed by the appellant upon the complainant that were not charged by the Crown but admitted as relationship evidence. These included an allegation that the appellant had sexual intercourse with the complainant on a Mickey Mouse rug in the complainant’s room when she was aged 14. After his arrest, the appellant’s semen was located on a Mickey Mouse rug.

14 Although the Crown case relied almost exclusively upon the evidence of the complainant, there was some evidence that the jury could have found supported her allegations. This included the following:

Count 4: Evidence of the complainant’s mother that she had seen the complainant standing near the pool table holding her jeans. She was naked from the waist down. The appellant said that the complainant was getting her bikini.
Counts 5,6,and 7: The complainant’s mother gave evidence that the appellant had told her not to worry about going to the army party and that he would take the complainant straight from work. He said that they would not stay long. They arrived home about 11.30pm. An invoice from the Jolly Knight Hotel showed that on that date the appellant had booked a room for two adults.
Count 8: Dennis Grenfell gave evidence that in January or February 2000 at about 5.45am he was walking his dog when he saw a dark coloured Holden Commodore parked in trees. The description of the vehicle was similar to that owned by the appellant at the time. Bernard Marvin gave evidence that in late January 2000 he saw a family-sized sedan parked on the side of the road at about 5.45am. He also noticed another walker with a dog.

15 There was also evidence of a general nature that the jury could find was consistent with the complainant’s evidence. The complainant was examined by a medical practitioner on 10 February 2000. The state of the complainant’s vagina was consistent with long-term frequent vaginal intercourse. The complainant’s boy friend gave evidence that he and the complainant had sexual intercourse only once. The appellant wrote a letter to the complainant after she left home, apologising and containing the statement, “All I can say is I’m jealous of anyone that looks at you.”

16 There was a significant area of contention between the appellant and the complainant’s mother about the circumstances surrounding the alleged offences. For example, she disputed the appellant’s claim that he had taken their son with him on the evening of the army party. She also denied that there was as much damage to the garage door as the appellant maintained there was.

17 The appellant gave evidence denying the allegations. In particular he made the following responses to the particular counts in the indictment:

Count 1: Although he slept in the same bed with the complainant and her brother, he did not touch her breasts or vagina. The complainant was not developed in her breasts at this time.
Count 2: He never had sexual intercourse in the butcher shop. He closed it at 12pm. There were a number of large mirrors in the shop that allowed him to see if customers were in the shop when he was in the backroom and, thus, would allow persons entering the shop to see into the backroom.
Count 3: Although there was an occasion when the door of the garage was damaged and he returned home from work, he did not sexually assault the complainant. There was too much damage to the garage door to allow him to repair it and commit the offence. He kept the complainant at home to move objects stored in the garage so that he could repair the door.
Count 4: He recalled lying on the lounge in the poolroom and was aware of his wife returning home. He heard her speaking with the complainant but did not know what was said. He denied having intercourse with the complainant.
Counts 5, 6 and 7: He denied having intercourse with the complainant at the Jolly Knight Motel. He went to the hotel with the complainant and his son after a dispute with his wife. Although he intended to stay there the night, he later changed his mind and returned home with the children. He denied that there was an army Christmas party on that date.
Count 8: He had never been to Varroville in the Holden Senator. It was physically impossible for him to have intercourse in the vehicle because of his size.
'
Count 9: He denied having intercourse with the complainant on the floor of his bedroom. If his wife went bowling, he went to bed early.

18 The appellant denied that he had ever had intercourse on the Mickey Mouse rug and explained that his semen must have been placed there when he wrapped the rug around himself and his wife when they slept on a futon.

19 The trial judge gave the jury full and entirely appropriate directions on the onus and standard of proof. In the course of her Honour’s summing-up, when she was discussing the jury's approach to the assessment of witnesses, her Honour said:

"Let me just pass from honesty to the question of accuracy for a minute. Even if you were to accept [the complainant] and her mother as witnesses of truth there is also the question of their accuracy, particularly [the complainant's] accuracy, because some of these alleged offences occurred over a period of years and some of them may not have assumed any significance for [the complainant's mother] at the particular time. In addition, for part of the period of time covered by the indictment the complainant was a child between the ages of eleven and thirteen years. So you must take into account the fact that her capacity to recollect accurately every detail of her routine domestic life might be affected by that passage of time. The passage of time between the events of 1990 to [the complainant's] statements to the police and her evidence in court you might think would affect her ability, and her mother's ability, to accurately recall events and the sequence of those events.
Of course some events have such a profound impact on a person that the passage of time does little to affect the memory. For example, the death of a loved one or a serious accident in the family, both the event itself and the surrounding circumstances are fixed in the memory because of the importance of that event in the person's life. As I said, they are all matters for you. I am merely illustrating the range of factors which might affect a witness’s accuracy and of course the accused also has that difficulty in that he is being asked to recall accurately, events that occurred sometime ago which assumed no significance at the time that those events were occurring. You will appreciate of course that a witness can be a completely honest witness, albeit mistaken in their recollection of events.”

20 Later in the summing up the trial judge gave the following directions in respect of the evidence of the complainant:

“In this case there is one witness who is essential to proof of each of the nine charges in the indictment, and that is [the complainant]. You should therefore exercise caution before you were to convict the accused on the evidence of that one witness. You should only find the accused guilty if you are satisfied of the truth of the evidence of that witness. The fact that I have given you that direction does not mean that I have formed any view at all as to the honesty or the reliability of [the complainant], it is a direction which is given in every case where the Crown depends upon the evidence of one witness. When I say she is essential to proof of the Crown case I say that because there has never been any issue in this trial that there was no one in a position to give evidence of this sexual activity other than [the complainant] and as you are no doubt aware, sexual activity invariably takes place in private and invariably there are only two people there, and in this trial [the complainant] says that she had sexual intercourse on a number of occasions with the accused and the accused simply says it did not happen.

21 Having directed the jury on the ingredients of each of the offences as set out in the indictment and the evidence relied upon by the Crown to prove those ingredients, her Honour gave the jury directions as to how they were to use the failure of the complainant to raise the allegations before 8 February 2000 in their assessment of her credibility. The trial judge then went on to direct the jury as follows:

“There is another aspect which flows from the complainant's delay in making a complaint and I’m required to give you this direction. It is important that you understand and that you appreciate fully the effect which this delay has had upon the ability of the accused to defend himself by testing the prosecution case or by adducing evidence in his own case which might establish a reasonable doubt about his guilt.
Now, I just want to refer you to some specific difficulties encountered by the accused in testing the evidence of the prosecution or in adducing evidence in his case and these delays arise as a result of the fact that in relation to counts one to seven of the indictment, the complainant said nothing to anyone until 9 or 10 February in the year 2000.

Firstly, in relation to count two, count two is the allegation of sexual intercourse in the Ambarvale butcher shop. Because the shop has been altered since the period of time when the accused operated that business, the accused has lost the opportunity to present photographic evidence of the position of the wall mirrors and the layout of the shop and he has lost the opportunity to demonstrate the area which might be reflected by those mirrors from a position outside the shop.
You will recall that the accused’s contention is that a person standing outside the shop after closing could, if they wished to stand in the right position outside the shop, see into the majority of the back area of the shop by virtue of the reflection from what he said were wall mirrors on the left-hand side and that in those circumstances he said it would be incredible that he would take such a risk, so he has lost the opportunity to present that evidence to you in a more concrete form.
In relation to count three, he has lost the opportunity to present photographic evidence of the extent of damage to the garage door because the garage door has been fixed in the meantime and similarly he has lost the opportunity to convey perhaps by photographic evidence the extent of the equipment which was stored in that garage and, therefore, to support the evidence that he gave in relation to the extent of the damage and the type of repairs that he was required to do in order to secure the garage door.
In relation to counts one and four, count one being the camping at Burraga and count four being the lounge room incident, the accused does not dispute that there was an occasion when he took [the complainant] and Shane camping at Burraga and he does not dispute that there was an occasion when [the complainant] was seen by her mother in the backroom of the house naked from the waist down, but the passage of time since those events makes it difficult for him to accurately recall them and leaves him in the position where he can do no more than simply deny that there was any sexual activity on those occasions.
In relation to counts five, six and seven which occurred at the Jolly Knight Hotel, the accused says in relation to that that he was there on that night with Shane and [the complainant], that is, on 4 December 1998 according to the Jolly Knight Motel booking slip, Exhibit N. He is not in a position, come February of the year 2000, to produce any witnesses who may have seen either himself and/or [the complainant] and/or Shane in the restaurant or when they went go-karting, so he has lost the opportunity to call evidence from other persons who may have seen them on that occasion.

22 There was no complaint by counsel for the appellant at the trial about these directions nor any request for any further directions on the topic of the delay or its effect upon the ability of the appellant to test the Crown case or defend himself. This was notwithstanding that at the conclusion of the summing up defence counsel raised a large number of factual and legal matters that he wished the trial judge to correct, amplify or add to what her Honour had already said. Her Honour recalled the jury and continued her summing up in compliance with some of defence counsel’s requests. This included a direction as to a suggested motive put forward by the appellant to explain why the complainant might have fabricated her allegations. The summing up concluded with the trial judge reminding the jury that it was not a question of choosing between the respective cases of the Crown and the accused, but that they had to ask themselves whether they were satisfied beyond reasonable doubt that the Crown had proved the charges in the indictment.

23 On the hearing of the appeal, counsel for the appellant, Mr Odgers SC, conceded that there was no error or deficiency in the directions given by her Honour as to the prejudice suffered by the appellant. They were both of a general and specific nature. Her Honour told the jury the delay had affected the reliability of the complainant and her mother as to their accounts of events and the sequence of events. She emphasised to the jury the importance of appreciating the effect of delay on the ability of the appellant to defend himself both in testing the prosecution case and in adducing evidence in his own case that might establish a reasonable doubt about his guilt. Her Honour gave concrete instances relating to the particular counts in the indictment of prejudice suffered by the appellant. It was not suggested at the trial or on appeal that these directions were other than appropriate.

24 But Mr Odgers argued that the directions were defective in that the trial judge did not explain to the jury how they should give effect to the prejudice suffered by the appellant in the course of their deliberations. He submitted that the trial judge had not warned the jury effectively that, because of the delay, it would be dangerous to convict the appellant on counts one to seven. At the very least, so he submitted, her Honour ought to have told the jury that, as a result of the prejudice suffered by the appellant, they must scrutinise the evidence of the complainant with care before convicting upon it in relation to the first seven counts on the indictment. He submitted that, without such a warning, the jury might not have appreciated the full impact of the prejudice suffered by the appellant on their assessment of the Crown case notwithstanding her Honour’s earlier directions and warnings in relation to their approach to the complainant’s evidence.

25 In particular, counsel for the appellant relied upon the judgment of Spigelman CJ in R v Johnston (1998) 45 NSWLR 362 at 474, where his Honour said:

“(i) Whenever it appears to a trial judge that delay, whether occasioned by the 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 the 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 has 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 the warning which uses such terminology as "dangerous" or "unsafe" to convict will be required. The reason for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v)".

The submission is that her Honour failed to comply with proposition (vi) above.

26 It is unnecessary for the determination of the present appeal to consider in detail the, now numerous, decisions of this Court and the High Court dealing with the appropriate warning, directions and comments to be given in a case where there is long delay between the commission of an alleged sexual assault offence and the trial of the accused for that offence. These decisions were recently critically examined and the principles re-stated in R v BWT [2002] NSWCCA 60. The effect upon a conviction of the absence of an adequate warning was discussed in R v WRC [2002] NSWCCA 210.

27 The extent of the warning required and the consequence of a failure to give an adequate warning will depend upon the circumstances of the particular case and a consideration of the summing up as a whole. A trial judge will fall into appealable error only where the summing up is so inadequate that it fails to perform its function to ensure that the particular trial was fair and according to law. Where it is asserted that the summing up is inadequate by reason of some failure to direct or warn the jury appropriately, the question for this Court to determine is whether a substantial miscarriage of justice might have occurred, particularly where, as here, no request was made for any further direction. The ultimate question is whether the failure of the trial judge to give an adequate and appropriate warning resulted in a trial that was relevantly unfair, that is one in which the appellant lost a chance of an acquittal by reason of that failure: R v GPP [2001] NSWCCA 493 at [111]; R v WRC at [119]. If the trial is unfair in this way, then the proviso to s 6 of the Criminal Appeal Act cannot be applied, because a conviction would not be inevitable. This is so whether or not counsel at the trial requested a direction of the kind that should have been given: R v GPP at [60]; R v WRC at [121], [153].

28 In my view the ground of appeal is not made out. True it is that, having identified the particular prejudice suffered by the appellant in respect of each of counts one to seven, her Honour did not tell the jury that, by reason of such prejudice, they should scrutinise the complainant's evidence with care or that for this reason it would be dangerous to convict on the evidence of the complainant alone in respect of those counts. But I find it impossible to believe that the jury failed to appreciate that this was the significance of her Honour’s extensive and detailed references to the prejudice suffered by the appellant, having regard to what had been said by her Honour earlier in relation to the onus and standard of proof and the approach to be taken to the complainant’s evidence as the sole basis of the Crown’s case. There was no other possible use the jury could have made of her Honour's analysis of the prejudice to the appellant in defending each of counts one to seven except by taking it into account when assessing the complainant’s evidence in determining whether the Crown had proved its case. In any event, after referring to the prejudice suffered by the appellant, her Honour said:

“So in summary, then, you could only convict the accused if you were satisfied beyond reasonable doubt of the truth and the reliability of the complainant's evidence with respect to the nine charges in the indictment and only after taking into account the fact that the passage of time since some of those events, and in particular, as I said, counts one, two, three, four, five, six, and seven, has directly affected the ability of some of the Crown witnesses and of the accused to accurately recall the chronology and the surrounding circumstances of those events.

29 I have already adverted to the fact that earlier in the summing up her Honour told the jury that, because the Crown case relied almost exclusively upon the evidence of the complainant to prove each of the charges, the jury would have to exercise caution before convicting upon the complainant’s evidence. I acknowledge that such a warning, taken by itself, would have been insufficient to address the facts of the present case. There is a difference between a warning based upon the fact that the Crown case relies upon a single witness and a warning based upon the effect of delay upon the accused’s ability to defend himself or herself: R v Roddom [2001] NSWCCA 168. But the warning given by the trial judge cannot be disregarded when considering what the jury would have understood to be their approach to the complainant’s evidence from the whole of the summing up. The trial judge said nothing to diminish the weight of that warning during the course of the summing up, cf R v Roddom, above. Quite the contrary, by her extensive discussion of the effects of delay on both the Crown and defence case, the jury would have understood that this was a further reason to exercise caution before accepting the complainant’s evidence beyond reasonable doubt.

30 Although in most cases of delay it will be essential to warn the jury that it would be dangerous to convict, I am not persuaded that such a warning was required in the present case in order to ensure a fair trial to the accused. In the evidence before her Honour there was neither the extensive delay or the concatenation of factors which has been present in cases where the expression “dangerous to convict” has been required, see R v SJB [2002] NSWCCA 163 at [52] (a case in which the desirability of such a warning was apparent to defence counsel who requested one). Although there was a delay in respect of the first seven counts, there was none in respect of the last two counts. Whether a warning is required is not a matter of mathematical calculation, but the extent of the delay and the consequential prejudice are clearly relevant matters. The fifth, sixth and seventh counts occurred a little more than twelve months before the complaint and there could have been little actual prejudice, if any, suffered by the appellant.

31 In my view, reading the summing up as a whole and in the context of the issues raised, the jury was sufficiently warned about the approach they were to take to the evidence of the complainant, both by reason of the importance of her evidence to the Crown case and because of the prejudice to the accused caused by the delay, to ensure that the accused received a fair trial. A judicial caution was given in relation to reliance upon the evidence of the complainant, appropriate comments were made as to the effect of delay upon the reliability of the complainant and other Crown witnesses, and the jury were told in sufficiently clear terms of the potential and actual prejudice suffered by the appellant because of the delay in complaint. The summary quoted above would have been unexceptional had her Honour referred to the necessity to scrutinise the complainant’s evidence with care. I cannot accept that the requirement for an appropriate summing up to meet the circumstances of a particular case has descended to such formalism that the failure to use particular words or the expression “dangerous to convict” amounts to an error of law in every case of delay.

32 I acknowledge that, had she been asked to do so, it would have been open to her Honour to have formulated a further warning based upon the extra caution needed in convicting on the first seven counts because of the delay over and above the fact that the Crown case was based upon the evidence of a single witness. But no such warning was requested, notwithstanding that the decision of the High Court in Crampton v R (2000) 176 ALR 369 had been given in November the preceding year. Counsel for the appellant at trial may have thought that such a distinction between the approaches to be taken to the complainant’s evidence in respect of the different counts on the indictment would not have been helpful to his client. But in any event, the fact that counsel did not believe it necessary to ask for any further warning or comment from her Honour on the issue of prejudice to the appellant confirms my view that, taken as a whole, the summing up was adequate to ensure that the jury understood the manner in which they were to approach the evidence of the complainant and that the trial of the appellant had been fair.

33 In my view the failure of the trial judge to specifically direct the jury to scrutinise the evidence of the complainant with care or to caution them that it would be dangerous to convict on the first seven counts did not result in the possibility of a miscarriage of justice having regard to what her Honour did in fact tell the jury and the evidence before them. I am not persuaded that her Honour did fall into error in the summing up. But even if it were necessary to consider whether to apply the proviso to s 6, I would unhesitatingly do so. I am satisfied that the appellant did not lose a chance of acquittal by the failure of her Honour to direct precisely in terms of the warning in Longman v The Queen (1989) 168 CLR 79 in this particular case. In any event rule 4 of the Criminal Appeal Rules applies and I am far from persuaded that there might have been a miscarriage of justice in the present case.

34 I propose that the appeal against conviction be dismissed. Although the appellant indicated on his Notice of Appeal that he was seeking to appeal against sentence, no argument was advanced either in writing or orally in support of such an application. Nor could there be. The application for leave to appeal against sentence should be refused.

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