R v WRC - [2002] NSWCCA 210

Reported Decision:
(2002) 130 A Crim R 89

New South Wales

Court of Criminal Appeal

CITATION: Regina v. WRC [2002] NSWCCA 210 revised - 11/06/2002

FILE NUMBER(S): CCA 60224/01

HEARING DATE(S): 3 April 2002

JUDGMENT DATE:
7 June 2002

PARTIES :

Regina - respodnent
WRC - appellant

JUDGMENT OF: Hodgson JA at 1; Greg James J at 83; Kirby J at 123

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0850

LOWER COURT JUDICIAL
OFFICER : Wall DCJ

COUNSEL : Mr. Byrne SC for appellant
Mr. G.E. Smith for the Crown

SOLICITORS: Baker Deane & Nutt for appellant
S.E. O'Connor for Crown

CATCHWORDS: CRIMINAL LAW - EVIDENCE - Circumstantial evidence - Coincidence evidence - Tendency evidence - Relationship evidence - Probative value and prejudicial effect - Contamination - CRIMINAL LAW - Appeal against conviction - Longman direction - Whether necessary - Whether adequate - Whether rule 4 leave should be granted.

LEGISLATION CITED: Evidence Act 1995 ss.95, 97-101, 135, 137, 192.

CASES CITED:
Ananthanarayanan (1994) 98 Cr.App.R 1
BRS v. The Queen (1997) 191 CLR 275
Crampton v. The Queen (2000) 75 ALJR 133
Doggett v. The Queen (2001) 75 ALJR 1290
Festa v The Queen (2001) 76 ALJR 291
HG v The Queen (1999) 160 ALR 554
Hoch v The Queen (1998) 165 CLR 292
Longman v. The Queen (1989) 168 CLR 79
Mraz v. Regina (1955) 93 CLR 493
Pfennig v. The Queen (1995) 182 CLR 461
R v. AH (1997) 42 NSWLR 702
R v. BWT [2002] NSWCCA 60
R v. Colby [1999] NSWCCA 261
R v. OGD (No.2) (2000) 50 NSWLR 433
Regina v GPP [2001] NSWCCA 493
Regina v. Glennon (1994) 179 CLR 1
Regina v. VHP NSWCCA 7/7/97
Regina v. Wilde (1988) 164 CLR 365
Shepherd v. The Queen (1990) 170 CLR 573
State v Saporen (1939) 205 Minn 358
Westerman v. The Queen (1991) 55 ACrimR 353

DECISION: 1. The appeal in respect of each trial is upheld. 2. The conviction recorded as a result of each trial is quashed and the sentences set aside. 3. There should in each case be a new trial.

60224/01

HODGSON JA
GREG JAMES J
KIRBY J
Friday 7 June 2002

Regina v. Wrc

Judgment

1 HODGSON JA: These are two appeals from convictions following two trials of the appellant, each before Acting Judge Wall QC and a jury, and concluding respectively on 11th September 2000 and 16th November 2000.

2 The first trial concerned four charges of indecent assault upon CPS, a male person, pursuant to s.81 of the Crimes Act 1900. The first three charges were of assaults allegedly committed at Parramatta; and the fourth was of an assault allegedly committed at Mosman between about 1st January and 31st December 1977. The dates on the first three counts when the appellant was indicted on 28th August 2000 were “between about 1st October 1976 and 30th April 1977”; but during the trial, on 5th September 2000, these dates were amended to “between 1st January 1977 and 30th June 1977”. The appellant pleaded not guilty to each count. On 11th September 2000, the jury returned a verdict of guilty to each count. On 10th April 2001, the appellant was sentenced as follows:

On each count, to imprisonment for three years and six months to be served concurrently with each other and to commence on 11th September 2000 and expire on 10th March 2004, with a non-parole period of two years and four months to commence on 11th September 2000 and expire on 10th January 2003.

3 The second trial concerned seven charges of indecent assault upon TEL, a male person, pursuant to s.81 of the Crimes Act 1900. The respective dates and places were as follows:

4 The appellant pleaded not guilty to each count. On 16th November 2000, the jury returned a verdict of guilty to each count. On 10th April 2001, the appellant was sentenced as follows:

On each count, to imprisonment for four years and six months to be served concurrently with each other and consecutively to the sentences imposed for the offences for CPS, to commence on 11th January 2003 and expire on 10th July 2007, with a non-parole period of three years to commence on 11th January 2003 and expire on 10th January 2006.

5 It is common ground that the appellant taught Year 3 at Mosman Preparatory School in 1974, 1976, 1977 and 1978. He joined the Army Reserve in 1965 and retired in 1989 when he was 47. In 1977 and 1978, he was a Lieutenant and reserve Quartermaster at the Lancer Barracks at Parramatta.

6 CPS was born on 27th August 1968. The appellant was his teacher at Mosman Preparatory School in 1977. The appellant took CPS to the barracks at Parramatta on at least three occasions.

7 TEL was born on 10th March 1969. The appellant was his teacher at Mosman Preparatory School in 1978. The appellant took TEL to the barracks at Parramatta on about two occasions.

8 There is no doubt that a complaint was made by TEL about alleged sexual assault by the appellant about one week after the last alleged assault on him, and that complaint was conveyed to the headmaster of Mosman Preparatory School. The complaint was then denied by the appellant, but, without there being any determination as to the truth of the complaint, the appellant resigned from the school.

9 Apart from that complaint, no complaint was made by either CPS or TEL until some years later. Following those later complaints, the appellant was interviewed by police in March 1997, and was subsequently arrested.

10 Trials of the appellant on four separate indictments charging multiple offences of indecent assault on four male persons were listed to commence and proceed “back to back” before Acting Judge Wall with different juries. Prior to the commencement of these trials, there was a substantial voir dire hearing in which the trial judge considered the admissibility of the evidence of each complainant in the trial of charges concerning the other complainants. So far as these appeals are concerned, the relevant matter determined on this voir dire hearing was the admissibility of evidence from TEL in the trial of charges in relation to CPS, and the admissibility of evidence of CPS in the trial of charges relating to TEL.

11 This voir dire hearing required consideration of the effect of ss.95, 97-101, 135, 137 and 192 of the Evidence Act 1995, and also cl.6 of the Evidence Regulation 2000. The Evidence Act sections are as follows:

95(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

…

97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

98(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:
(a) they are substantially and relevantly similar, and
(b) the circumstances in which they occurred are substantially similar.
(3) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

99 Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

100(1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97.
(2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98.
(3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.
(4) In a civil proceeding, the party's application may be made without notice of it having been given to one or more of the other parties.
(5) The direction:
(a) is subject to such conditions (if any) as the court thinks fit, and
(b) may be given either at or before the hearing.
(6) Without limiting the court's power to impose conditions under this section, those conditions may include one or more of the following:
(a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party,
(b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence,
(c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.

101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

…

135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.

…

137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

…

192(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

12 The Evidence Regulation clause is as follows:

6(1) This clause is made for the purpose of section 99 of the Act.

(2) A notice given under section 97 (1) (a) of the Act (relating to the tendency rule) must state:

(a) the substance of the evidence of the kind referred to in that subsection that the party giving the notice intends to adduce, and

(b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of:

(i) the date, time, place and circumstances at or in which the conduct occurred, and

(ii) the name of each person who saw, heard or otherwise perceived the conduct, and

(iii) in a civil proceeding - the address of each person so named, so far as they are known to the notifying party.

(3) A notice given under section 98 (1) (a) of the Act (relating to the coincidence rule) must state:

(a) the substance of the evidence of the occurrence of two or more related events that the party giving the notice intends to adduce, and

(b) particulars of:

(i) the date, time, place and circumstances at or in which each of those events occurred, and

(ii) the name of each person who saw, heard or otherwise perceived each of those events, and

(iii) in a civil proceeding - he address of each person so named, so far as they are known to the notifying party.

(4) On the application of a party in a criminal proceeding, the court may make an order directing the notifying party to disclose the address of any person named in a notice given under this clause who saw, heard or otherwise perceived conduct or events referred to in the notice.

(5) The direction may be given on such terms as the court thinks fit.

13 In his decision given on 24th July 2000, the trial judge outlined the matters alleged in relation to CPS and TEL, and then considered in turn questions concerning tendency evidence, coincidence evidence, and relationship evidence.

14 In relation to tendency evidence, the trial judge said this:

As explained by Hunt CJ in CL in R. v Lock (S.C.25 March 1997) –

Section 56 of the Evidence Act provides that evidence, which is relevant in a proceeding, is admissible unless otherwise provided in the Act. It is relevant where, if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in that proceeding (S55). Tendency evidence which is otherwise relevant in that sense is nevertheless made inadmissible to prove that a person acts in a particular way if the Court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value (S97). Where the evidence is to be led by the prosecution about the accused person, it cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused (S101). Alternatively, the accused person may persuade the Court that its probative value is outweighed by the danger of unfair prejudice to him, in which case the Court must exclude the evidence (S137). As the Crown must first satisfy the requirements of S101, there would appear to be effectively no room for S137 to operate in relation to tendency evidence unless S101(3) applies.

S101(3) has no application on the question to be determined by me, as the Crown does not seek to adduce the tendency evidence to explain or contradict tendency evidence to be "adduced" by the accused. For evidence from three complainant's of the accused's sexual conduct and tendency towards them to be admitted as tendency evidence in support of the allegations of the fourth, the Crown must establish to my satisfaction that this evidence has first, significant probative value (S97) and secondly, the probative value substantially outweighs the prejudicial effect it would have on the accused.

The first question to be determined by me is whether the evidence sought to be adduced has the quality of significant probative value. In Pfennig v The Queen (1995) 182 CLR 461, propensity (or tendency) evidence was referred to by the High Court as being circumstantial in nature, and as such raising the objective improbability of some event having occurred other than as asserted by the Crown - in other words there must be no reasonable view of the evidence available which is consistent with the innocence of the accused. Put another way, in determining whether the evidence has the quality of being tendency evidence with a significant probative value which substantially outweighs its prejudicial effect the question to be addressed by me is to ask whether there is available a rational (or reasonable) view of the tendency evidence which is consistent with the innocence of the accused; it is only if there is not such view available that a conclusion can safely be reached that the probative force of the evidence is significant and outweighs its prejudicial effect (Pfennig at 482 - 483, 528). As was remarked in Pfennig, the prejudicial effect of propensity (tendency) evidence is that the ordinary person naturally thinks that a person who has an established propensity whenever a particular opportunity arises will therefore have yielded to that propensity in the circumstances of the particular case.

If I were to admit this evidence as tendency evidence it would be my duty to direct the Jury that they must not treat the evidence as establishing an inference of guilt because, if accepted, it shows the accused has or had a tendency or propensity to commit offences of this kind. I would be bound to direct the Jury that they could only use this evidence, either by itself or with other evidence adduced, against the accused if they were satisfied that there must be no reasonable view of the evidence which is consistent with the innocence of the accused. Again in Pfennig p.529 McHugh J. expressed the view;

"If the risk of an unfair trial is very high the probative value of evidence disclosing criminal propensity may need to be so cogent that it makes the guilt of the accused a virtual certainty".

Counsel for both parties have provided written submissions. The written submissions provide a useful and comprehensive outline of the relevant principles and authorities. In pp. 6 to 8 of his written submissions Counsel for the accused set out a detailed analysis of similarities and differences in the accounts of the four complainants in relation to the physical aspects of the assaults, the reported attitude of the accused after the assaults and the places where the assaults took place. He submitted that an examination of this evidence disclosed that the similarities of the accounts are far outweighed by the differences and that in consequence the complaints lack the requisite "signature" elements that must be common for the evidence to be admitted as tendency evidence.

In pp. 2 to 3 in her written submissions Counsel for the Crown gave a comprehensive analysis of points of similarity (15 in all). She submitted that the points of similarity in the accounts given by the four complainants are so strikingly similar that the evidence has the quality of having significant probative value, which substantially outweighs any prejudicial effect on the accused.

I have given careful consideration to the content of the evidence sought to be admitted as tendency evidence including the evidence relied upon by the Crown as disclosing "guilty passion" and to the arguments of Counsel on the point in issue under s.97 of the Evidence Act.

In my view, although there are many points of similarity as argued by the Crown in the accounts given by the four complainants, the content of their evidence, taking it large and fine, does not demonstrate the high degree of similarity, an underlying signature or an identifiable hallmark, as it is sometimes put, which is required for admission as tendency evidence.

Accordingly, I am not satisfied that the tendency evidence sought to be adduced has that quality of "significant probative value" i.e., circumstantial evidence alone or with other evidence in the case clearly pointing to the guilt of the accused and allowing for no other rational conclusion other than that the accused is guilty. However, if I be wrong in this conclusion, I am nonetheless satisfied that if it were to be admitted there would be a high risk that the Jury would treat the evidence by itself as establishing the guilt of the accused i.e., that because of a propensity to commit offences of this kind he yielded to his sexual desires when the opportunity arose. This danger of prejudicial effect in my view is not substantially outweighed by any significant probative value the evidence may have.

15 In relation to coincidence evidence, the trial judge said this:

S.98(1) relevantly provides that evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act if the court thinks that the evidence would not, either by itself or having regard to other evidence adduced, have significant probative value. Sub-sec. 2 provides that 2 or more events are to be taken to be related events if and only if they are substantially and relevantly similar and the circumstances in which they occurred are substantially similar. Sec.101(2) provides that coincidence evidence cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

At common law evidence of similar acts committed by the accused against different persons was admissible to prove the improbability of the same story being told by a number of persons provided that the trial judge was satisfied that there was no reasonable possibility of concoction. See Hoch v R (1988) 165 CLR 292 where it was held that the possibility of concoction was a matter which had to be considered by the trial judge when determining to admit such evidence. At p.300 Mason CJ, Wilson and Gaudron JJ quoted with approval the following passage from the judgment of Lord Wilberforce in Reg. v. Boardman (1975) A.C .421, at p.444:

"This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s).

I use the words "a cause common to the witnesses" not only .... the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility: something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed. This is well illustrated by Reg. v. Kilbourne (1973) A.C. 729 where the judge excluded "intra group" evidence because of the possibility as it appeared to him , of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out.

If this test is to be applied fairly, much depends in the first place upon the experience and common sense of the judge." (Original emphasis.)

Although the coincidence rule does not contain any such test of admissibility, I am satisfied the legal position is that before the evidence can meet the test of admissibility under the Act, there must be no reasonable possibility of concoction or contamination before the evidence can be admitted.

In R v Colby (CCA (NSW) 26 August 1999) unreported, it was held that before evidence led by the Crown to rebut coincidence can be admitted the judge has to be satisfied that there is no reasonable possibility that the evidence is the result of a concoction on the part of the witnesses giving the evidence ... the chance of concoction must be a real one and not merely speculative. It was held that the trial judge would have regard to the relationship of the persons, their motivations and opportunities for concoction.

An Issue of Concoction and or Contamination
Counsel for the accused submitted that there was a real possibility of concoction and or contamination in relation to the allegations made to the Police by …, [TEL] and … in their police statements. The basis for this submission is the publication on the front page of a local newspaper, The Mosman Daily on 31st October 1996, of allegations made by [CPS] in civil proceedings instituted by him against [WRC] for indecent assaults committed in a 4 wheel drive motor vehicle at army barracks and in a stenciling (sic) room at the Mormon Prep School. There was a further publication in the Sydney Morning Herald on 1 November 1996 and again in The Mormon (sic) Daily in March 1997 of the allegations against the accused made by [CPS].

Counsel for the accused also submitted that a possibility of concoction and or contamination stemmed from the contact of the three complainants with Mr. and Mrs. Dale who conducted support group meetings, … and the contact between [TEL] and [CPS's] solicitor who later became [TEL's] solicitor.

In the voire dire examination I carried out an extensive enquiry on this issue which included the examination and cross examination of all four complainants, family members of …, [CPS] and …, Mr. and Mrs. Dale and finally the investigating Police Case Officer.

All these witnesses impressed as credible witnesses. I accept them to be honest witnesses who did their best to tell the truth, as they knew it. They were subjected to a searching cross-examination, which left them unshaken in relation to their assertions given in chief.

I have closely examined the evidence and given careful attention to the arguments of Counsel for the parties on this issue.

It does appear to me that there is no reasonable possibility that …, [TEL] and … have concocted the substance of their allegations of sexual abuse by [WRC] as a result of learning of the [CPS] allegations in the newspapers or through a common cause. [TEL], through his mother, complained to the school authorities in February 1979 that he had been masturbated on more than one occasion by the accused at army barracks at Parramatta. This assertion is corroborated in notes made by the head of the school council who interviewed [TEL] in February 1979 in relation to his allegations.

On my review of the evidence it does not appear to me that there is any ground for asserting that the allegations made by [TEL] in his police statement, which are sought to be admitted by the Crown as coincidence evidence, stem from him becoming aware of the [CPS] allegations. There is no evidence he read the newspaper articles. His evidence is that he did not. There is no evidence that he came in contact with [CPS] before he made his police statement. There is evidence that he did not. There is no evidence that he was made aware of the [CPS] allegations by [CPS's] solicitor. There is evidence he was not. There is no evidence that he came in contact with Mr. and Mrs. Dale and their support group before he made his police statement. There is evidence that he did not.

On the evidence the Crown has satisfied me that there is no reasonable possibility that the evidence of [TEL] and [CPS] has been concocted or has arisen from a cause common to them both.

I have given careful attention to the submissions made by Counsel for the parties on the question whether the coincidence evidence sought to be admitted satisfies the tests under s.98 and s.101. In my view, the account given by [CPS] of his experiences with the accused in the stenciling (sic) room event and the army barracks event when compared with the account given by [TEL] of his experiences with the accused at these locations, provide striking similarities of patterns of behaviour by the accused towards both. The detail of the similarities is set out in the written and oral submissions of the Crown.

I am satisfied that the coincidence evidence sought to be adduced from [TEL] and [CPS] as outlined above is strongly probative and has such cogency that the evidence satisfies the tests set out in s.98 and s.101 of the Evidence Act.

Accordingly I rule that this evidence is admissible.

16 In relation to relationship evidence, the trial judge said this:

The Crown seeks to have evidence admitted in each trial on an indictment of conduct by the accused not charged in the indictment but similar in relation to an indecent assault charged in order to rebut any suggestion of the offences being committed in isolation and to give the true and proper context to the allegations made by a particular complainant. Counsel for the accused opposes the admission of the relationship evidence and seeks to have it excluded under the discretions empowering the Court to exclude this evidence under s.135 or s.137.

I am satisfied if the mandatory directions to the Jury are given in relation to the use of this evidence the probative value of the relationship evidence would not be outweighed by the danger of unfair prejudice under s.137 or that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused or be misleading or confusing (to the Jury) under s.135.

I am empowered under s.136 to limit the use to be made of this evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to the accused.

I can foresee that if the Crown were to question a complainant in detail about similar misconduct to that charged in the indictment i.e. to go into chapter and verse of when where and how the similar misconduct occurred the accused would be unfairly prejudiced. He would not only have to meet the cases charged in the indictment but a host of other similar allegations of a substantive nature.

The proper course for the admission of this evidence is to limit the Crown to asking a complainant in effect: "Apart from these matters charged in the indictment were there other occasions when you were dealt with by the accused in a similar way in relation to touching your genitalia?" and then go no further than that; then upon receiving an affirmative ask: "If asked, could you give evidence of those occasions?"

17 The appellant relied on the following grounds of appeal in relation to the charges concerning CPS:

1. The learned trial judge erred in admitting the evidence of the witness TL

2. The directions given by the learned trial judge on the use the jury may make of the evidence of TL were inadequate and erroneous.

3. The directions given by the learned trial judge on the impact of the delay in bringing the complaints were inadequate.

18 He relied on the same grounds in relation to the charges concerning TEL, substituting “CS” for “TL”.

19 I will deal in turn with the three grounds, concerning both cases. In considering the third ground, I will also deal with an application by the applicant to add two further grounds of appeal in the CPS case.

20 The appellant relied on three separate arguments:

1. The trial judge’s failure to have regard to the notice requirements of s.99 of the Evidence Act.
2. Inconsistency between the trial judge’s findings concerning tendency evidence and those concerning coincidence evidence, and associated with this, error by the trial judge in finding that there were striking similarities of patterns of behaviour justifying admission of the evidence as coincidence evidence.
3. Error by the trial judge in not finding a reasonable possibility of contamination.

21 In written submissions, Mr. Byrne SC for the appellant submitted that the notice given for the purposes of s.98 did not comply with s.99 and cl.6 of the Evidence Regulations. However, Mr. Smith for the Crown pointed out that on 5th July 2000 the trial judge made an order under s.100(1) dispensing with notice, pursuant to s.192(1); and that in any event, prior to the trial judge’s judgment on 24th July 2000, the Crown had served a further notice which did comply. There was no oral submission on this aspect made by Mr. Byrne, and in my opinion the Crown’s response does dispose of this aspect.

22 Mr. Byrne referred to Pfennig v. The Queen (1995) 182 CLR 461, and submitted that, just as the evidence in question did not demonstrate the high degree of similarity required for admission of tendency evidence having regard to ss.97 and 101 of the Evidence Act, it did not demonstrate sufficient similarity to justify admission as coincidence evidence having regard to ss.98 and 101 of the Evidence Act. The alleged similarities were merely that both were young pupils of the appellant, both alleged sexual assault by masturbation by the appellant, and both identified the same places where assaults occurred (a stencil room at the school and army barracks at Parramatta). Both were places known to be visited by the appellant, and were neither secret or unexpected.

23 Mr. Byrne also submitted that the trial judge was in error in admitting relationship evidence by the corroborating witness in each case.

24 Mr. Smith submitted that Pfennig did not apply, because the matter was governed by the Evidence Act: cf. R v. OGD (No.2) (2000) 50 NSWLR 433.

25 In my opinion, Pfennig is highly relevant to the effect of ss.97, 98 and 101 of the Evidence Act, in that the principles there stated concerning circumstances in which the probative force of similar fact evidence substantially outweighs its prejudicial effect are directly applicable to questions raised for decision by ss.101 and 137 of the Evidence Act: R v. AH (1997) 42 NSWLR 702. OGD does not suggest the contrary.

26 The essence of the approach to similar fact evidence, such as propensity evidence, established by Pfennig appears in the following passage from the judgment of Mason CJ, Deane J and Dawson J at 482-3:

Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. (Hoch (1988) 165 CLR at 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at 564). See also Harriman (1989) 167 CLR at 602). Here "rational" must be taken to mean "reasonable" (See Peacock v. The King (1911) 13 CLR 619 at 634; Plomp v. The Queen (1963) 110 CLR 234) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

27 Plainly, that passage does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd v. The Queen (1990) 170 CLR 573; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence.

28 On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of the propensity evidence.

29 In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.

30 In the present case, evidence was not admitted as tendency evidence under s.97, but as coincidence evidence under s.98. In order to consider its admissibility in accordance with s.98, and also to consider whether the requirements of s.101 were satisfied, it is necessary to be clear as to precisely what gave the coincidence evidence in this case its probative value.

31 In some cases, the probative value of coincidence evidence arises entirely from some striking similarity or peculiarity of the related events themselves, which supports an inference that the same person was involved in them. In such cases, if it is shown that the accused was involved in one such event or was the only person who could have been involved in both or all such events, an inference may be drawn that it was the accused who was involved in both or all of them.

32 In other cases, the probative value of the coincidence evidence arises not merely from the related events, but also, and especially, from the circumstance that two or more persons independently give evidence of the related events, where it is improbable that they would have given accounts with such similarity unless both or all accounts had foundation in fact. In such cases, in my view, the related events need not necessarily have such striking similarity as is required where it is only the events themselves that are said to have probative value. However, in such cases, the exclusion of any reasonable possibility of joint concoction or contamination is absolutely crucial to the probative value of the coincidence evidence: cf. Ananthanarayanan (1994) 98 Cr.App.R. 1, R. v. Colby [1999] NSWCCA 261.

33 In each of the present cases, the coincidence evidence was plainly of the latter kind. The crucial question at issue was not whether, given that certain events occurred, it was WRC who was responsible: rather, it was whether or not the events themselves occurred. What could strongly support the probability that the events occurred is that two persons independently gave such similar accounts. Leaving to one side for the moment the possibility of concoction or contamination, there is very high improbability of two persons independently coming forward with such similar stories, unless those stories had a factual basis. In my opinion, that is one reason why, accepting that the material was not sufficient for tendency evidence, which must depend only upon objective fact, rather than upon two or more persons giving similar stories, the material may be sufficient for coincidence evidence.

34 Viewed in that way, in my opinion the evidence is of significant probative value, as required by s.98. The question then is whether that probative value substantially outweighs any prejudicial effect (s.101), or whether the danger of unfair prejudice outweighs its probative value (s.137). There may also be a question whether its probative value is substantially outweighed by the danger that it might be unfairly prejudicial (s.135). Despite the variations in wording, in my opinion if the evidence satisfies s.101, it will necessarily satisfy s.137 and not be liable to discretionary rejection under s.135.

35 In order to decide whether the s.101 test is satisfied, it is necessary to consider whether the criterion laid down in Pfennig is met, at this stage leaving to one side the question of concoction or contamination, a matter subject to separate submissions. Let us suppose that a jury had a reasonable doubt, in the case of CPS, in the absence of the evidence of TEL. Would the evidence of TEL then leave no reasonable view consistent with the innocence of the appellant? In my opinion, the answer is yes. In my opinion, assuming there is no reasonable possibility of concoction or contamination, it is not reasonably possible that two persons could come forward with stories with the similarities of the stories of CPS and TEL unless they had foundation in fact.

36 This approach could raise a question which was not the subject of submissions either below or in this Court. Since the coincidence is not merely the similarity of objective circumstances related by the two witnesses, but also and primarily the fact that two witnesses should independently relate such similar circumstances, the improbability that gives the evidence its probative force is not so much the improbability of the related events themselves occurring coincidentally, as contemplated by s.98(1), as the improbability of two witnesses independently coming forward with evidence of related events unless their evidence had foundation in fact. One view could be that s.98 is a section that excludes evidence in certain circumstances so that if its terms do not precisely refer to certain evidence, then it does not apply to that evidence, and accordingly s.101 also does not apply. However, on that view there would be nothing in the Evidence Act to exclude application of the Pfennig approach, so the same result would follow.

37 As regards the relationship evidence, I see no error in the decision of the trial judge to allow relationship evidence in relation to the corroborating witness in each case, to the limited extent indicated by his Honour’s judgment. There is force in the considerations discussed in the judgment of Greg James J, but in my opinion the course taken by the trial judge was a reasonable compromise. On the one hand, it avoided the complainants presenting a misleading picture of what they claimed to be their relationship with the appellant; and on the other, it avoided going into extraneous details. It was not prejudicial to the appellant, because the complainants’ assertions that there were other occasions of abuse had no greater credibility than their assertions about the events the subject of the charges.

38 Mr. Byrne submitted that the evidence should have been excluded in each case because a “reasonable possibility” of contamination had not been excluded: Hoch v. The Queen (1988) 165 CLR 292, BRS v. The Queen (1997) 191 CLR 275 at 301.

39 In order to assess this submission, it is necessary to set out briefly some history concerning the accounts given by the two complainants.

40 In February 1979, TEL made allegations to the school, recorded in contemporary notes, that WRC “had stroked [his] penis” “on two separate Saturdays” when WRC and TEL “had gone by themselves to army barracks at Parramatta”.

41 TEL and CPS were in different years at the school, and on the evidence did not know each other at school and had no contact in the years between their time at the school and 1997.

42 Prior to 31st October 1996, CPS consulted a solicitor, giving rise to civil proceedings against WRC and Mosman Preparatory School. He made a statement to his solicitor Mr. Zacharatos which alleged, inter alia, that in 1976 WRC took him to army barracks on a Sunday and there masturbated him, and that this was repeated five or six times in 1976 to 1977. The statement also alleged an incident when TEL went with WRC at the school to “a small room where stencils were printed” and WRC masturbated him there. A copy of this statement was given to the Mosman Daily newspaper, which on 31st October 1996 published an article, reporting that proceedings had been commenced in the Supreme Court by CES, and setting out the following quotation from the statement of claim and description of its contents:

“The (teacher) took the plaintiff into a small room where stencils were printed at the school, placed the plaintiff on his lap, undid the plaintiff’s pants and masturbated him.” The statement tells of similar incidents at an army barracks.

43 An article was published about the matter in the Sydney Morning Herald on 1st November 1996, including the following paragraph:

In his Statement of Claim filed in the court [CPS] alleges a number of incidents, including one when the teacher masturbated him in a room at the school and a similar experience at an Army barracks.

44 In January 1997, CPS gave a statement to the police, which identified the army barracks at which an assault took place as Holsworthy. WRC was subsequently arrested and charged, and in March 1997, the Mosman Daily newspaper reported the arrest, and in that article gave the name of CPS’s solicitors.

45 TEL’s mother then contacted TEL, and TEL contacted those solicitors. According to TEL, he did not read any of the articles and did not know their content. TEL attended at the solicitor’s offices, and there spoke to Mr. Zacharatos, who prepared a typed statement. TEL then went to the police and made a statement on 2nd April 1997. This statement referred to a number of assaults occurring in “the stencilling room” at the school, and also assaults at Holsworthy Army Base.

46 Later, TEL went to see Sue Dale, who had established a support group for victims of child sexual abuse, and who had also seen CPS.

47 Subsequently, both CPS and TEL independently came to the view that the assaults did not take place at Holsworthy, and both independently went to army barracks at Parramatta, and asserted that the assaults took place there.

48 Mr. Byrne submitted that there was clear contamination in relation to the assertion that assaults occurred at Holsworthy Army Base, and that this showed the suggestibility, at least of TEL, if not also CPS. In relation to the reference to the stencilling room, in each case the same solicitor took the first statement, and there was also a reasonable possibility that, despite his denials, the reference to a stencilling room in TEL’s statement came directly or indirectly from the newspaper report.

49 In my opinion, there is no reasonable possibility of contamination in relation to the fact and nature of the assaults or the location of some of the assaults at Parramatta barracks. TEL had reported both the nature of the assaults and the occurrence of assaults at Parramatta barracks in February 1979. Parramatta barracks were the barracks with which WRC was associated. CPS in 1996 alleged the nature of the assaults and that assaults occurred at barracks, although in the original statement to police he identified the barracks as Holsworthy. When TEL later identified the barracks as Holsworthy, it may well be that this was due to his contact with CPS’s solicitor, but this would not amount to contamination affecting the essential facts stated earlier. Both CPS and TEL independently corrected the identification of the barracks after they visited the Parramatta barracks.

50 As regards the stencilling room, the position is not so clear. Although TEL denied on oath that he had read or become aware of the contents of the newspaper reports, and although he was accepted as a witness of truth by the trial judge, the existence of a report which made public an allegation concerning a stencilling room and TEL’s contact with CPS’s solicitor, at a time before TEL had apparently mentioned a stencilling room to anyone else, could raise a reasonable possibility of contamination. If the reference to a stencilling room had been the sole, or even the primary, similarity of the stories, I may not have been satisfied that a reasonable possibility of contamination had been excluded. Having regard to the very powerful effect of the evidence, the very existence of a public source from which the sole or primary similarity could have been derived could in my view have been enough to exclude it.

51 However, the reference to the stencilling room is only one aspect of the two stories, having only an incremental effect on the force of the evidence. In my opinion, even without any reference to the stencilling room, the other similarities in the evidence about which there is no reasonable possibility of contamination are sufficient to pass the Pfennig test. Where there has been no contamination in relation to the substance of the evidence, a small possibility of contamination concerning one incremental aspect of the evidence does not mean that the s.101 criteria have not been satisfied. There may be cases where it is appropriate to edit the evidence in order to minimise the danger of prejudice. I do not think that would have been appropriate here: the reference to the stencilling room was integral to the accounts of the assaults, and did not in my opinion significantly increase the danger of prejudice.

52 The trial judge gave the following direction in the case of CPS:

In this trial the Crown has led evidence from TEL that the accused indecently assaulted him at the Parramatta Army Barracks in 1978 when he was a pupil in a class taught by the accused. The Crown is permitted to lead this evidence in relation to counts one, two and three in proof of the offences charged in those counts but on a strictly limited basis.

I shall explain to you the use you may make of this evidence and, most importantly, the use you must not make of this evidence. And I emphasis: The use you must not make of this evidence.

The Crown has also led evidence from TEL that he was indecently assaulted at the Mosman Preparatory School in 1978 in a room in which there was stencilling/copying equipment. The Crown was permitted to lead this evidence from TEL in relation to count four as proof of the offences charged in that count. That again is on the same strictly limited basis.

I shall explain to you the use you may make of this evidence and, most importantly, the use you must not make of this evidence. And again I emphasis: The use you must not make of this evidence.

First, before you may consider this evidence of TEL in support of the Crown case in counts one, two and three you must be satisfied beyond reasonable doubt of the truth of his evidence that he was indecently assaulted by the accused at the barracks.

The Crown bears the onus of proving beyond reasonable doubt he is a witness of truth on this disputed issue. If the Crown fails to so satisfy you then you must, I emphasize, you must entirely disregard the evidence of TEL that he was indecently assaulted at the barracks. You must not use it in any way in support of the Crown case that CPS has given truthful evidence of the indecent assaults charged. Secondly, if the Crown satisfies you beyond reasonable doubt of the truthfulness of the evidence of TEL that the accused indecently assaulted him at the barracks you must not treat his evidence as establishing an inference of guilt of the offences charged in counts one, two and three by reasoning that he had a tendency or a propensity to commit offences of this kind. This is a false and irrational reasoning as I said at an earlier time in the trial when I explained it to you. The law does not allow the evidence of TEL to be used in this way. The way and the only way the Crown may legitimately use the evidence of TEL that he was indecently assaulted at the Lancer Barracks is this; the Crown submits to you that the circumstances that CPS and TEL have testified to you about the way in which the accused indecently assaulted them at the barracks by acts of masturbation to their penis bare to each other such a striking similarity that they must, when judged by experience and common sense (a) both be true or (b) have arisen from a cause common to both, that is collaboration, that they got together and invented a common story or their similar stories have arisen by each being exposed to a process of suggestion or contamination from an outside source or finally, (c) have resulted from pure coincidence.

Now exactly the same principles apply in relation to the question whether the Crown is permitted by law and if permitted that its legitimate use of the evidence of TEL that the was indecently assaulted at the Mosman Prep School in support of proof of the offence charged in count four of the indictment. The Crown relies on the evidence of TEL to persuade you that his evidence supports CPS's evidence; that it points to it being true and argues its case in this way. The Crown submits to you that TEL's account of the circumstances of how he was indecently assaulted on occasions whilst seated on the accused's lap at the barracks and in a room at the school is not merely a similar account to that given by CPS but has such a high degree of similarity as to be an identical description of the circumstances in which the accounts of indecency constituting the indecent assaults charged were committed.

If you accept this to be the case the Crown submits to you that it is impossible TEL's evidence of indecent assaults can be the result of coincidence. I direct you that on this question whether TEL's evidence leads to a conclusion that his account of being indecently assaulted cannot reasonably be explained by coincidence that the Crown must satisfy you beyond reasonable doubt that the account of indecent assault given by TEL when compared to the acts of indecent assaults given by CPS have such a striking similarity, such a close similarity, such a clear underlying unity between both accounts as to make coincidence an improbable explanation for what they each say happened to them at the hand of the accused.

Mere similarity of account which raises or deepens a submission that the accused committed the offences charged is not sufficient. When considering the evidence of TEL and the use sought to be made by the Crown you should also consider the submission put to you by counsel for the accused that on the evidence you could not be satisfied beyond reasonable doubt of the truth of his evidence of indecent assaults and the matters raised with you by him in support of that submission.

You should also consider his submission that the Crown has not demonstrated that TEL's account of indecent assaults is strikingly similar with that given by CPS. Counsel asked you to consider both accounts where alleged acts of masturbation took place and that by the nature of the act it can only be described in one way, therefore he argued no significance can be attached or could be attached to the fact that TEL described the act of masturbation in a similar way to CPS.

The Crown submits to you that the evidence in the Crown case that there had been no contact between CPS and TEL whilst they were pupils at the school or thereafter has not been challenged by the accused. The Crown submits that there is no evidence that CPS and TEL have collaborated in giving their accounts of being indecently assaulted by the accused and there is no evidence that their account could have arisen from a cause common to them both.

Counsel for the accused has told you that it is not part of the defence case that CPS and TEL have put their heads together so as to contaminate their accounts of a sexual abuse. He told you the issues of suggestion goes only to the effect of CPS's earlier reference to Holsworthy and TEL's early reference to Holsworthy as to where they say the assaults took place. The Crown submits to you that in these circumstances the only rational explanation left for what it says is a striking degree of similarity if not an identical case of indecent assault, is that they are both true. It is in this way the Crown relies on the evidence of TEL to support the evidence of CPS that the offences charged were committed. Whether in the light of these directions as to the permissible use of the evidence of TEL and the argument of both counsel on the point you are persuaded that evidence supports the evidence of CPS that he was indecently assaulted by the accused is entirely a matter for you to decide.

53 Mr. Byrne submitted that there were a number of errors in these directions.

54 In the passage where his Honour said that “the Crown must prove beyond reasonable doubt that” the two versions “have such a close similarity … as to make coincidence an improbable explanation”, the trial judge, Mr. Byrne submitted, erroneously mixed the concepts of “beyond reasonable doubt” and “improbable”, and also set the standard too low. What had to be shown was that the coincidence was so improbable that there was no other reasonable explanation.

55 Next, Mr. Byrne submitted, there were error in the references to the question of whether the versions were strikingly similar or whether there was the possibility of contamination, in that this was confusing to the jury and also re-visited matters dealt with on the voir dire. Mr. Byrne submitted that it was not fair to the appellant to put that the evidence of no contact between CPS and TEL was not challenged, or that it was not part of the defence case that CPS and TEL had put their heads together to contaminate evidence.

56 Next, Mr. Byrne submitted that the reference to the common error in relation to Holsworthy gave no assistance to the jury as to how they might use it.

57 Finally, Mr. Byrne submitted that, in directing the jury that they must be satisfied beyond reasonable doubt of the truth of the evidence of TEL before they could consider it as evidence supporting the case of CPS, the trial judge did not explain that in deciding this matter they could not take into account the evidence of CPS.

58 In my opinion, dealing first with the last submission, this submission proceeds on a false assumption. In my opinion, it is plainly not necessary that the jury be satisfied beyond reasonable doubt of the truth of the evidence of TEL, considered alone, before they could take it into account as evidence supporting the case of CPS. That is contrary to the law concerning circumstantial evidence, as explained in Shepherd. The whole force of coincidence evidence is the co-existence of two or more pieces of evidence, so that satisfaction beyond reasonable doubt might come from this co-existence, whereas it could not come from any single piece of evidence considered on its own. Accordingly, any error in this direction was favourable to the appellant.

59 In so far as complaint is made concerning the direction about the Holsworthy error, that complaint must fail, in my opinion, because on no reasonable view could the mistake in relation to Holsworthy show contamination on the crucial similarities of assault at an army barracks and the location of that army barracks at Parramatta.

60 As regard the other two complaints, there is force in the submission that the directions are confusing. However, this is partly because the area is a difficult one, and partly in my opinion because of the way the case was conducted, in particular on behalf of the appellant.

61 As mentioned before, the coincidence in this case was not merely that there were alleged assaults by a teacher on a young pupil, of the same kind and at the same places, but also that two people independently gave evidence of such similar assaults. I have already expressed the view that the improbability of a coincidence on this matter is such that the only reasonable possibility is that both accounts have foundation in fact, or that both are the product of some other cause which they have in common, such as joint concoction or contamination.

62 However, while the particular requirements of ss.98 and 101 must be satisfied in the mind of the judge before such evidence can be admitted in a trial, those requirements do not have to be presented to the jury as something they must be concerned about. The jury can be permitted to use the evidence simply on the basis of the improbability of coincidence. However, by reason of s.95, they cannot use the evidence to suggest that an accused person has a tendency to act in a particular way, unless the judge has determined that the requirements of s.97 are satisfied. In this case, the judge did direct the jury that they could not use the evidence in question as propensity evidence. But even though the jury does not have to reconsider the questions arising under ss.98 and 101, in order for the jury to determine for itself the rational force of the evidence, the jury must both assess how improbable the relevant coincidence is, and assess the extent to which any other common cause (such as concoction or contamination) is excluded. The jury must do these things, in order to be able to properly use the evidence in coming to the ultimate conclusion as to whether the offence is proved beyond reasonable doubt.

63 Because the jury must make an assessment of the extent to which some other common cause, such as concoction or contamination, is excluded, it would in my opinion be open to the Crown to lead before the jury the whole history of the generation of the two accounts, to the same extent as occurred in this case in the voir dire hearing. However, an accused might prefer that this not be done, because of the possible prejudicial effect of the detailed history, and of there being produced before the jury successive written statements prepared by relevant witnesses and notes taken by persons to whom they gave their accounts of the matter. (These documents, being admissible to rebut concoction or contamination, would also be admissible to prove facts intended to be asserted, unless an order to the contrary was made: see Evidence Act ss.60, 136.) So I think it is permissible for the Crown to do as it did in this case, that is, just call the witnesses to give their sworn accounts of the events, and to assert that they did not meet until after they made their first statements to the police, and leave it to the accused to explore the details of the generation of the stories, with the assistance of the material given in the voir dire hearing. In this case, the appellant did not in fact choose to go in detail in cross-examination to the evidence given on the voir dire concerning the generation of the stories.

64 Indeed, it is a striking feature of both these cases that the most powerful evidence rebutting concoction and contamination was not placed before the jury, namely the notes made in 1979 of TEL’s complaint to the school and CPS’s first statement to his solicitor made in 1996. (In TEL’s case, but not CPS’s case, there was evidence of a complaint made, in vaguer terms, by TEL to TEL’s brother at about the same time.) In my opinion, that documentary evidence was admissible in both cases; and although there was a danger of that evidence having prejudicial effect, its probative value greatly outweighed that danger. The objective records of complaints made respectively in February 1979 and in 1996, by two different persons with no contact with each other, both recording similar assaults on weekend visits to an army barracks with which the appellant was associated, were extremely probative of the absence of joint concoction or contamination. In my opinion, there was a considerable tactical advantage to the appellant in not having this material before the jury.

65 Because the question of how the history of the generation of the stories is to be dealt with before the jury is a matter very much bound up with the tactics of the trial, I consider it particularly significant to consider whether any complaint was made at the time concerning the way this aspect was left to the jury. There was in fact no complaint, and it was not suggested that the trial judge misrepresented the attitude of counsel for the accused in the directions which he gave. In my opinion, this both suggests that, having regard to the way the case was conducted, there was no substantial error unfavourable to the accused in the way the case was left to the jury, and it also raises the hurdle of r.4 of the Criminal Appeal Rules which would need to be overcome if the appellant was to succeed on this point. I am certainly not satisfied that there was injustice to the appellant arising from the way this matter was left to the jury, so that, even if I had thought there was error unfavourable to the accused in the directions, I would not grant leave for the appellant to rely on this ground.

66 I have been referring so far in my reasons on this point to the case of CPS. The same answer is arrived at, for the same reasons, in relation to the case of TEL.

67 Mr. Byrne submitted that at the trial the appellant placed considerable reliance on his position of disadvantage, because of the delay in excess of twenty years before the time of the events the subject of the charges and the time when those charges were first levelled against the appellant. The only directions given by the trial judge in the trial concerning CPS were as follows:

There is also one other matter that I bring to your attention, in which the law requires me to bring to your attention and it is a matter that has been also referred to you by counsel for the accused. And this is: that because of the delay between the time when these events are alleged to have occurred - that is in 1977 in relation to [CPS] and 1978 in relation to [TEL] - and the time of the allegations were brought to police notice, which occurred in 1998, following the police being brought into the matter with the police statement - do you recall the evidence of the police statements being made in January 1997? - following that delay of what is twenty-two or twenty-three years, or thereabouts, the accused has necessarily had difficulties in meeting those allegations.

The examples of the difficulties that were brought to your attention during the course of the trial and the closing addresses are, in a sense, the accused has had to conduct his defence in relation the allegations that he indecently assaulted [CPS] and [TEL] at the army barracks in 1977 and 1978. And now, after a period of years, they have been changes made in some respects to the barracks. An example, of course, is after twenty-two years there is a disputed issue as to what type of floor was on the drill hall; a dispute about what kind of windows were in the drill hall (painted or frosted); what was the situation in relation to an occasion, was it a parade day when the squadron was being presented to 100 to 150 people milling around; or was it an occasion when the squadrons were not there and there was only a skeleton staff, perhaps a dozen, or in some cases perhaps two or three.

I am just drawing your attention to these issues which have arisen in this trial, and the fact that you, the jury, are asked to reflect on and consider findings in relation to disputed issues that deal with matters that are some twenty-two or twenty-three years in the past.

68 The directions given in the trial concerning TEL were to somewhat similar effect, and are set out in the judgment of Greg James J.

69 Mr. Byrne submitted that these directions fell short in a number of respects: firstly, they were put as summarising points made by counsel for the accused, whereas the judge should have invested them with his own authority, and directed the jury firmly that these were matters they were bound to take into account; secondly, in that they failed to do justice to the difficulties facing the appellant, referring only to the relatively minor matter of changes that might have been made to such things as the physical features of the army barracks; and thirdly, in that they made no reference to the need for extreme caution before acting on the recollection of events that occurred in early childhood. Mr. Byrne submitted that the jury should have been warned that experience has shown that human recollection, and particularly recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, and that the likelihood of error increases with delay: cf. Longman v. The Queen (1989) 168 CLR 79 at 108. Mr. Byrne also relied on Crampton v. The Queen (2000) 75 ALJR 133 at par.45 and Doggett v. The Queen (2001) 75 ALJR 1290 at pars.41-55 and 131-142.

70 As mentioned earlier, in the case of CPS leave was sought to add two further grounds of appeal, first that the trial judge erred in permitting the Crown to amend the dates in one count of the indictment, and secondly in permitting further cross-examination of the appellant after a view of the army barracks at Parramatta. Mr. Byrne submitted that amendment of the indictment to alter the dates between which the offence was permitted could in the circumstances result in the alteration of the conduct of the evidence and deprive the appellant of a real chance of acquittal: Westerman v. The Queen (1991) 55 ACrimR 353, Regina v. VHP, NSWCCA, 7/7/97. As regards the other matter, the appellant was cross-examined after the view with a suggestion that a particular room observed in the view had been deliberately omitted from plans drawn by the appellant, and Mr. Byrne submitted that this was unfair.

71 In relation to the Longman ground, Mr. Smith submitted that this was a case where, no further direction having been sought, leave should not be granted to the appellant to rely on this matter. Mr. Smith relied on r.4 of the Criminal Appeal Rules, which is in the following terms:

No direction, omission to direct, or decision as to the omission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

72 In my opinion, this rule is relevant to the appeal on the Longman ground. As noted in Crampton at par.56, that rule was made under the power conferred by s.28 of the Criminal Appeal Act, and there is no suggestion that it is not properly made in exercise of that power. In Crampton itself, a New South Wales case, counsel for the appellant had submitted to the trial judge that her directions fell short of what was required by Longman, so that on this aspect there was no occasion to apply the rule. In Doggett, which was a Queensland case, it was noted by Kirby J at par.147 that this procedural hurdle did not exist.

73 On this matter also, it is significant that the notes of TEL’s 1979 complaint and CPS’s first statement were not before the jury in either case. Because of r.4, there is an onus on the appellant to satisfy this Court that justice requires leave to rely on matters not raised below; and this in turn generally requires the appellant to satisfy this Court that it was not by reason of tactical decisions reasonably made in the conduct of the trial that the matters were not raised below.

74 However, I accept that, leaving aside the point that no objection was taken and the associated need for leave under rule 4, the directions did not satisfy the requirements of Longman as amplified in Crampton and Doggett. I agree with Greg James J and Kirby J that the decision of the majority in Doggett leaves little room for exercise of discretion as to whether or not to give a Longman direction or as to its content. However, although I too found the analysis of Sully J in R v BWT [2002] NSWCCA 60 extremely helpful, I do not agree that Longman directions must always comply with all six of the requirements that Sully J specified. That will be the case where a jury is being asked to convict on the complainant’s evidence alone, or where there is a reasonable possibility that they might do so. However, where as here there is substantial corroboration, it could be misleading to stress the danger of convicting on the complainant’s evidence alone.

75 This point was made by Gleeson CJ and McHugh J in their dissenting judgments in Doggett. The majority decision means that this consideration does not obviate the requirement of a Longman direction, but in my opinion it does not eliminate all discretion as to the form of the direction, in those cases where there is in fact substantial corroboration. In each of the present cases, for reasons I have given, the independent generation of two such similar stories was very substantial corroboration of each of them; and in my opinion the jury in each case was not being asked to convict on the complainant’s evidence alone, and there was no reasonable likelihood that they would do so.

76 In each of the present cases, in my opinion the Longman direction that was called for was a warning to the effect that the evidence of the complainant and the principal supporting witness had to be considered with great care, and with the appreciation that this evidence may give a misleading appearance of plausibility, because of the lapse of time and because of the consequential disadvantages faced by the appellant in testing it and meeting it. The disadvantages should have been explained as including the difficulty of testing the evidence of the witnesses where the details could not be effectively explored, whether because of understandable lack of detail in the appellant’s instructions, understandable lack of detail in the witnesses’ answers, inability to test those answers against circumstances that could have been the subject of effective independent checking, or all of these matters; and as also including the difficulties of bringing forward independent evidence which could contradict the account given by the Crown witnesses and support the account given by the appellant.

77 Perhaps also there should have been reference to the capacity of human beings to misremember events that occurred long ago, particularly events in childhood, and to be honestly convinced that something had happened when it did not.

78 I do not think there needed to be any reference to the danger of convicting on the complainant’s evidence alone; and in so far as any such reference had been made, it could properly have been combined with a reminder to the jury that they were not being asked to do that, and that they could properly take into account any improbability they saw in two persons independently coming forward with two similar accounts of assault by the appellant. In my opinion, there was no error in not referring to this danger; and even if there had been, leave under rule 4 should not be given, because plainly there were tactical reasons not to request such reference.

79 As regards the other matters the question is more difficult. I am not satisfied that the absence of a warning about the capacity to misremember was unrelated to the absence from evidence of the record of TEL’s 1979 complaint to the school. It is true, as pointed out by Greg James J, that if this direction had been sought, the Crown could not then have re-opened its case to tender this material; and it would seem that, unless the Crown pointed to some agreement based on the withholding of that material, the trial judge would have been obliged to give the direction. But just as this Court does not necessarily disregard material that was not before the jury because of an error by an accused’s counsel, I do not think it should necessarily disregard evidence available to the prosecution and admitted on the voir dire before the judge, which was not before the jury because of a tactical coup by the accused’s counsel or possibly an error by the prosecution. The question is one of substantial justice, in which, at least in cases where rule 4 or the proviso is concerned, this Court is not entirely limited to the application of technical rules. If one can take account of the evidence that was not before the jury, it can be said that such a direction, if unqualified, would have been misleading and unfair to the Crown, and unduly favourable to the appellant. I am not satisfied that the absence of a request for this direction was not a tactical matter associated with the absence of the evidence, and I would not grant rule 4 leave on this matter.

80 This leaves the deficiency in explaining the care with which the evidence needed to be considered, and the reasons for this. Had further directions to this effect been sought at the trial and not given, I think the appeal should have been allowed. However, further directions were not sought. Even in relation to this aspect, tactical considerations might have been involved. Additional directions on this matter could have produced further directions on the way in which the two main witnesses supported each other, which may in turn have detracted from the directions favourable to the appellant already given on this matter. I accept that Longman directions are extremely important, and that, as pointed out by Heydon JA in GPP at [60], leave under rule 4 is customarily given in such cases. But in my opinion this must be because in each case where leave is given the court is satisfied there has been a miscarriage of justice, at least in the sense that the appellant has been deprived of a reasonable chance of acquittal. And in my opinion, the reasonable chance that has been lost must be one which the appellant would have had in an acceptably fair trial. Perfection in directions is unattainable, and perfect fairness of trials is unattainable, by our system or any other system. What can be attained and what is required is a process and a result that is acceptably fair. On that standard, I am not satisfied that the appellant lost a reasonable chance of acquittal, and I would not give leave under rule 4.

81 In the case of CPS, in my opinion the decisions of the trial judge to permit the amendment of dates, and to allow further cross-examination after the view, were well within the discretion of the judge; and no appealable error is shown.

CONCLUSION

82 For those reasons, in my opinion both appeals should be dismissed.

83 GREG JAMES J: I regret that I am unable to agree with Hodgson, JA. that the appeals should be dismissed. Generally, I agree with his Honour's views except in respect of the complaint concerning the effect of the delay (the "Longman direction"). In my view the directions were critically inadequate and, having regard to the present state of the law, the appeals should be allowed, the sentences quashed and a new trial ordered.

84 I also wish to add some observations of my own concerning the admission of the relationship evidence.

85 Hodgson JA. has set out in his judgment the background to the matters raised on appeal. There had been provided to the trial judge during the voir dire at the commencement of the trials, an extensive table referring, in the case of both boys, to many incidents sought to be admitted in evidence as tendency, coincidence or relationship evidence. The relationship evidence sought to be admitted was described by the trial judge as:-

… conduct by the accused not charged in the indictment but similar in relation to an indecent assault charged in order to rebut any suggestion of the offences being committed in isolation and to give the true and proper context to the allegations made by a particular complainant.

86 His Honour said:-

I am satisfied if the mandatory directions to the jury are given in relation to the use of this evidence the probative value of the relationship evidence would not be outweighed by the danger of unfair prejudice under s.137 or that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused or be misleading or confusing (to the jury) under s.135.

(b) so far as it involves a finding of fact then it intrudes into the proper role of the jury.

118 Although these passages cited from both cases are extensive, their importance is such as to warrant reiteration. With the observations of all of their Honours I have cited, I agree. I further observe that where the warning, as here, neglects to draw to the jury's attention that the delay has or may have prevented the testing of the Crown case, there is another side to the commonsense observation of Sully, J. which also involves a judicial intrusion into the jury's function, where such direction as has been given focuses upon the effect of delay on the accused's case rather than the Crown case. In such a case the Crown case may be too readily accepted by the jury, and because the accused is or may be unable to meet it (as the jury have been judicially informed is the case) the conclusion of guilt might be more easily drawn. The absence of an appropriate warning may cause a jury to apply a lesser standard of satisfaction. In my view, an appropriate warning will refer to the possible effects on both the Crown and defence cases and will refer to the difficulty of testing the Crown case and the assessment of the weight to be given to it.

119 The warning is intended to ensure trials are fair which might otherwise have been stayed as abuses for delay. Analysed in this way, an appropriate warning is a legal necessity for a fair trial. The absence of an adequate direction will result in the trial not being a fair trial according to law (see Mraz v. Regina (1955) 93 CLR 493). In such circumstances, it is hard to see room for the application of Rule 4 or the proviso.

120 Heydon, JA. in GPP (supra) regarded the absence of an appropriate direction as not "fundamental" in the sense referred to in Regina v. Wilde (1988) 164 CLR 365 and Regina v. Glennon (1994) 179 CLR 1 but as reflecting on whether a conviction might be regarded as inevitable that is, whether the direction would found a basis for the possible experiencing of a reasonable doubt. Such a view relates the necessity for a Longman direction to the onus and standard of proof. Whether its absence would cause such a fundamental defect in the trial as is referred to in those cases need not be resolved since nonetheless its absence would result in a trial which was not a fair trial according to law. Thus unless, postulating a proper direction, the appellate court would have no reasonable doubt of guilt on the evidence at trial, the appeal should be upheld (see Festa v. The Queen (2001) 76 ALJR 291).

121 In my view, even though no application for a proper direction is made (unless perhaps, the lack of application was established as proceeding from a tactical consideration), even where, as here, conviction on all or most of the counts in both trials would be inevitable or nearly inevitable, the present state of the law requires that unless there is a direction which approaches nearly enough to the Longman requirements so that the jury could be seen to have the requisite understanding the appeal should be allowed.

122 It is for these reasons I have concluded the appeals should succeed. The evidence is, however, such that there should be new trials. I therefore agree with the orders proposed by Kirby, J.

123 KIRBY J: I have had the advantage of reading the judgment of Hodgson JA in draft. There were two broad areas of complaint in respect of each trial. They were:

· First, the admission of evidence, either upon the basis of relationship or coincidence, and the directions given in respect of such evidence.

· Secondly, the directions given in respect of delay; the so-called Longman Direction.

124 I agree with Hodgson JA, and for the reasons he states, that there was no error in respect of the first issue in either trial. I do not, however, share his Honour's view on the second issue. I shall, therefore, deal with that issue.

Longman

125 Both trials involved significant delay. It is necessary to look at what was said on the question of delay in each trial.

126 The first trial concerned the allegations of CPS. The appellant (WRC) was indicted on 28 August 2000 upon four counts. The offences were alleged to have been committed at various times between 1 October 1976 and 30 June 1977. CPS was born on 27 August 1968. The appellant was his teacher in Year 3. The proceedings, therefore, were based upon the recollection of CPS, now an adult, of incidents which occurred when he was a child aged approximately eight years. The complaint was first made to the police in 1997, more than 20 years after the events described. The trial, in August 2000, was more than 23 years after the alleged offences.

127 His Honour's directions on this issue, in the first trial, were brief. He said this:

There is also one other matter that I bring to your attention, in which the law requires me to bring to your attention and it is a matter that has been also referred to you by counsel for the accused. And this is: that because of the delay between the time when these events are alleged to have occurred - that is in 1977 in relation to [CPS] and 1978 in relation to [TEL] - and the time of the allegations were brought to police notice, which occurred in 1998, following the police being brought into the matter with the police statement - do you recall the evidence of the police statements being made in January 1997? - following that delay of which is twenty-two or twenty-three years, or thereabouts, the accused has necessarily had difficulties in meeting those allegations.

The examples of the difficulties that were brought to your attention during the course of the trial and the closing addresses are, in a sense, the accused has had to conduct his defence in relation to the allegations that he indecently assaulted [CPS] and [TEL] at the army barracks in 1977 and 1978. And now, after a period of years, [there] have been changes made in some respects to the barracks. An example, of course, is after twenty-two years there is a disputed issue as to what type of floor was on the drill hall; a dispute about what kind of windows were in the drill hall (painted or frosted); what was the situation in relation to an occasion, was it a parade day when the squadron was being presented to 100 to 150 people milling around; or was it an occasion when the squadrons were not there and there was only a skeleton staff, perhaps a dozen, or in some cases perhaps two or three.

128 The second trial was the consequence of allegations by TEL. The appellant was indicted on 30 October 2000 upon seven counts. The offences were said to have taken place at various times between 18 February 1978 and 28 January 1979. The complainant was born on 10 March 1969. He went to the same school as CPS. The appellant was his teacher. The complainant first made a complaint in 1979 to the school authorities. He made a statement to the police in 1997. TEL was, at the time of the alleged offences, about nine years old. The trial took place more than 21 years after the events described.

129 In the second trial, his Honour summed up on this issue in these terms:

There is one further direction that I give you in relation to this matter and that is this, that because of the delay between the time when these events are alleged to have occurred, that is in 1978, and the time when these allegations were brought to ... notice, it (sic) necessarily had difficulty in meeting these allegations.

That is a matter, members of the jury, that I am bound under the law to bring to your attention and to remind you of those difficulties.

It is a matter that you should take into consideration, that is the prejudice that has been suffered by the accused in meeting these claims, meeting these allegations, that his ability to recall and gather evidence pointing to his innocence has been adversely affected.

That is a matter for you to consider. It is a matter for you to take into account, as I say, that he has been placed in a difficult situation, now having to answer allegations relating to 1978.

Now ... the accused has been placed in a situation of hardship in adequately and properly preparing his defence by reason of that delay by reason of the fact that the matters that might have been fresh in the memory in 1978 might well have faded from memory. And there may be other matters that could have been attended to but were not.

And in this case, you heard from Mr Webb, counsel for the accused, refer to the difficulties in relation to a number of disputed issues such as was there a stencilling room in the ... Prep School in 1978 on the first floor.

And the difficulty in the year 2000 of ascertaining what the position was. Did he have a mustardy coloured four door sedan in 1978, or did he not. Was the school playing cricket on Saturday at Primrose Park or not. And there are other matters that you have been told about, and they are matters, members of the jury, that you should reflect on and consider in relation to the fact that there has been an absence of complaints.

130 Each case, therefore, concerned allegations of sexual molestation of a young child. One, at least, involved delay in making any complaint. Both cases involved significant delay in prosecution. A Longman warning was called for in each case. The Crown did not suggest otherwise.

131 The appellant complains that, in neither trial, did the directions conform with the requirements of Longman v The Queen (1989) 168 CLR 79. The deficiencies asserted by the appellant, common to both trials, were as follows:

· First, the direction was not given with the firm voice and authority of the Judge administering a warning, identifying matters which the jury was bound to take into account. Rather, the issues were put in a way which suggested they were a summary of points made by counsel.

· Secondly, the appellant's difficulties, caused by delay, were not adequately identified. The only matter identified, namely, the physical changes to the army barracks, was an aspect which was relatively minor.

· Thirdly, no reference was made to the need for extreme caution before acting upon the recollection of events that occurred in early childhood.

132 A number of issues arise:

· First, what is required by a Longman warning?

· Secondly, were those requirements met, or substantially met, in the directions given in each trial?

· Thirdly, if they were not, is there any room for the application of Rule 4, or the proviso?

Longman

133 The statement of principle in respect of the obligation to warn juries comes, of course, from the joint judgment of Brennan, Dawson and Toohey JJ in Longman v The Queen (supra), where their Honours said this: (at 91)

But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see

[1987] AC 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see

(1989) 168 CLR 23) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."

134 The need for such a warning can be traced to two matters (cf Kirby J, Doggett v The Queen (2001) 182 ALR 1 at 26). They are matters known to the Courts through experience, but unlikely to be known to juries, unless the subject of a warning. The first matter was described by Gaudron, Gummow and Callinan JJ in Crampton v The Queen (2000) 176 ALR 369, in these words: (at 379)

... 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.

135 Their Honours said:

The trial judge should have instructed the jury that the appellant was, by reason of the very delay, unable adequately to test and meet the evidence of the complainant.

136 In Doggett v The Queen (2001) 182 ALR 1, Gaudron and Callinan JJ elaborated in these words: (at 11)

... the problems with which

is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, of more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred."

137 The second matter emerges from the judgments of Deane and McHugh JJ in Longman. McHugh J said this: (at 107)

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented.

138 His Honour added: (at 107/108)

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.

139 The first of these matters has been questioned by this Court in R v BWT [2002] NSWCCA 60 (Wood CJ at CL, Sully and Dowd JJ). In that case the trial Judge gave a warning which was framed in terms of the accused possibly having difficulties occasioned by delay ("it may have resulted in some difficulties for the accused in defending himself"), rather than the accused in fact having such difficulties. Applying Longman, the Court of Criminal Appeal felt obliged to uphold the appeal. Had Longman (and the cases after it), been expressed less emphatically, as their Honours clearly believed appropriate, then the appeal would have been dismissed. Wood CJ at CL said this: (para 13/15)

13. These passages have been taken up, so it seems to me, as requiring that an instruction in equally positive terms, be given in every case involving a substantial delay, irrespective of whether or not there is any evidence, or basis beyond suspicion, that the absence of contemporaneity between the alleged offence and the complaint, or trial has in fact (not 'might have') denied to the accused a proper opportunity to meet the charge or charges brought: see for example R v Roddom [2001] NSWCCA 168, R v GJH [2001]NSWCCA 128 and R v Roberts [2001] NSWCCA 163.

14. Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant's evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way.

15. The difficulty which I have with this proposition is that it elevates the presumption of innocence, which must be preserved at all costs, to an assumption that the accused was

innocent, and that he or she might have called relevant evidence, or cross examined the complainant in a way that would have rebutted the prosecution case, had there been a contemporaneity between the alleged offence and the complaint or charge. That consideration loses all of its force if, in fact, the accused

did commit

the offence. In that event there would have been no evidence available of a positive kind, relating for example to the existence or ownership of the premises, or of a motor vehicle or other item, associated with the offence charged, or going to establish an alibi for the relevant occasion, no matter how contemporaneous the complaint or charge was with the offence. (emphasis in original)

140 His Honour recognised that, as a matter of common sense, delay can, and in many cases will, occasion difficulties to an accused. However, Wood CJ at CL identified his difficulty with Longman, as it has been interpreted, in these words: (para 18)

These are matters which can and should properly be placed before a jury, as relevant to its assessment of the prosecution case. My concern lies more with the unequivocal nature of a

warning

, which must be given by a trial judge who does not himself or herself know where the truth lies, that the accused

unable

to adequately test and meet the prosecution case" (emphasis in original)

141 However, with respect, I disagree. Significant delay does create disadvantage, guilty or innocent. Our system of criminal justice seeks to fireproof each conviction against error. It does so through the combined operation of the fundamental principles of criminal justice (the presumption of innocence and the requirement of proof beyond reasonable doubt) and the adversarial system. The accused may cross examine and call evidence. The proof offered by the Crown must be sufficiently robust to withstand the assault upon it even of the guilty.

142 The potency of cross examination as a means of exposing unreliable evidence diminishes significantly with time. In State v Saporen (1939) 205 Minn 358 (quoted in McCormick on Evidence, 2nd Ed (1972), page 602), the following was said:

The chief merit of cross-examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is the immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others. ...

143 The method of cross examination is an attack upon detail, exposing contradictions and unreliability. If the trial is undertaken within a reasonable time, the excuse for unreliability of fading memory is unlikely to be persuasive. However, where the trial is delayed, the accused is disadvantaged in two ways. First, the testimony is likely to be more vague, bereft of the detail which may be used to expose unreliability. Secondly, that absence of detail, and any contradiction that may happen to emerge, can the more easily be explained by reference to the passage of time. The jury therefore is more likely to be forgiving of shortcomings in the complainant's evidence, especially in the context of charges which arouse strong feelings of prejudice or revulsion (cf Kirby J Doggett (supra) at 25, para 118).

144 Returning to the requirements of Longman, Sully J in R v BWT (supra) provided a helpful analysis of matters which must be included to conform with the authorities. His Honour said this: (para 95)

95[3] ... Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Doggett :
(a) The direction must be cast in the form of a warning . Any form of expression which is thought to have the character of a comment , or even of a caution will not sufficiently comply with what is required by law.

It seems to me to follow that any trial Judge who is framing a Longman direction ought to ensure that the direction is framed, in terms, as a warning .

(b) That which is to be warned against is, to return to the majority judgment in

Longman

itself:

'that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], 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, was satisfied of its truth and accuracy’

(emphasis in original)

145 His Honour then distilled six matters which a Longman direction should include. He said this: (para 95)

95[3] ... a trial Judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: first, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly, that it would be, therefore, dangerous to convict on that evidence alone; thirdly, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing

upon the truth and accuracy of the complainant's evidence; and sixthly, that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction

146 The directions given in the first trial, in my view, plainly did not conform, or substantially conform, to these requirements. The direction was not framed as a warning. Arguably, the direction adequately dealt with the difficulties which the accused experienced in presenting his own case. The jury was told that the accused necessarily had difficulties in meeting the allegations by reason of the delay. An illustration was provided concerning the appearance of the army barracks, which had changed. However, the jury was not told that the complainant could not be adequately tested by reason of the delay. Nor was reference made to many of the other issues identified by Sully J.

147 The direction given by the learned trial Judge in the first trial, it will be noticed, was significantly less detailed, and covered fewer of the issues catalogued by Sully J, than the Longman direction in R v BWT (supra), which was found by the Court of Criminal Appeal not to be adequate.

148 Further, having regard to the age of the complainant, when the events which he was describing occurred, it was important that his Honour warn the jury of the fragility of recollection in one so young.

149 The directions in the second trial were more detailed. However, I believe that they also plainly failed to conform to the requirements of Longman, for many of the same reasons.

150 Although, in the context of the warning, it would have been appropriate to refer to matters which may be regarded as confirmation of the complainant's account (including the striking similarity of the evidence given by the other boy), that did not, in my view, remove the need for such warning. The disadvantage to the appellant arising from delay remained, whether there was corroboration or not. The jury needed to be told about it, so that its assessment of the complainant's evidence (and that of the other boy) could be made with an appreciation of the appellant's position.

151 In both trials, therefore, I believe that error has been established.

152 No objection was taken at either trial to the directions which are now impugned. Rule 4 therefore applies.

153 In R v GPP [2001] NSWCCA 493, Heydon JA (with whom Wood CJ at CL and Carruthers AJ agreed) made the following remarks on the availability of Rule 4, in the context of a failure to conform with Longman: (para 60)

60. The Crown's first point in answer was that counsel for the appellant did not seek at the trial the direction which it is now said should have been given, and that leave is required under r4 of the Criminal Appeal Rules to advance these grounds. Counsel's failure is regrettable, but if the appellant's criticisms are sound, they are, in the light of the High Court authorities, sufficiently important for leave to be given, as it customarily is by this Court in cases concerning

directions.

154 In the same case, Heydon JA made the following comment upon the proviso: (para 111)

111. The application of the proviso depends on the error not being one which is so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and on the conviction being 'inevitable', so that the appellant can be said not to have lost a chance which was fairly open to him to have been acquitted. See

(1994) 119 ALR 706 at 710-712. This error is not fundamental in the sense just described. Attention must therefore be directed to the strength of the Crown case.

155 Here, unquestionably, the Crown case against the appellant in both trials was strong. However, I do not believe in either case it can be said that conviction was inevitable (Doggett v The Queen (supra) Gaudron and Callinan (para 55) (182 ALR 1 at 12); Kirby J (para 151) (182 ALR 1 at 33)). Again, the comment of Heydon JA in R v GPP (supra) is apposite: (para 112)

112. The appellant's submission that the Crown case was weak is baseless. But once it is assumed, as it must be, that the prejudicial effect of delay on the forensic position of the appellant was not obvious to the jury, unless it had been explained to them, the warning which was not given could have caused them to experience a reasonable doubt.

156 Therefore, I believe the appropriate order is as follows:

**********

CITATION:	Regina v. WRC [2002] NSWCCA 210 revised - 11/06/2002
FILE NUMBER(S):	CCA 60224/01
HEARING DATE(S):	3 April 2002
JUDGMENT DATE:	7 June 2002
PARTIES :	Regina - respodnent WRC - appellant
JUDGMENT OF:	Hodgson JA at 1; Greg James J at 83; Kirby J at 123

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0850
LOWER COURT JUDICIAL OFFICER :	Wall DCJ

COUNSEL :	Mr. Byrne SC for appellant Mr. G.E. Smith for the Crown
SOLICITORS:	Baker Deane & Nutt for appellant S.E. O'Connor for Crown
CATCHWORDS:	CRIMINAL LAW - EVIDENCE - Circumstantial evidence - Coincidence evidence - Tendency evidence - Relationship evidence - Probative value and prejudicial effect - Contamination - CRIMINAL LAW - Appeal against conviction - Longman direction - Whether necessary - Whether adequate - Whether rule 4 leave should be granted.
LEGISLATION CITED:	Evidence Act 1995 ss.95, 97-101, 135, 137, 192.
CASES CITED:	Ananthanarayanan (1994) 98 Cr.App.R 1 BRS v. The Queen (1997) 191 CLR 275 Crampton v. The Queen (2000) 75 ALJR 133 Doggett v. The Queen (2001) 75 ALJR 1290 Festa v The Queen (2001) 76 ALJR 291 HG v The Queen (1999) 160 ALR 554 Hoch v The Queen (1998) 165 CLR 292 Longman v. The Queen (1989) 168 CLR 79 Mraz v. Regina (1955) 93 CLR 493 Pfennig v. The Queen (1995) 182 CLR 461 R v. AH (1997) 42 NSWLR 702 R v. BWT [2002] NSWCCA 60 R v. Colby [1999] NSWCCA 261 R v. OGD (No.2) (2000) 50 NSWLR 433 Regina v GPP [2001] NSWCCA 493 Regina v. Glennon (1994) 179 CLR 1 Regina v. VHP NSWCCA 7/7/97 Regina v. Wilde (1988) 164 CLR 365 Shepherd v. The Queen (1990) 170 CLR 573 State v Saporen (1939) 205 Minn 358 Westerman v. The Queen (1991) 55 ACrimR 353
DECISION:	1. The appeal in respect of each trial is upheld. 2. The conviction recorded as a result of each trial is quashed and the sentences set aside. 3. There should in each case be a new trial.