R v WSP - [2005] NSWCCA 427

No judgment structure available for this case.

CITATION:
R v WSP [2005] NSWCCA 427

HEARING DATE(S): 31 October 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
Spigelman CJ at 1; Sully J at 71; Hulme J at 94

DECISION:
See paragraph 190

PARTIES:
Regina
WSP

FILE NUMBER(S):
CCA 2005/1096

COUNSEL:
Crown: N Norman
Appellant: P Boulton SC

SOLICITORS:
Crown: K Owens
Appellant: Mark Klees & Associates

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/21/3476 02/21/3466

LOWER COURT JUDICIAL OFFICER:
Latham DCJ

- 54 -

2005/1096

SPIGELMAN CJ
SULLY J
HULME J

REGINA v WSP

Judgment

1 SPIGELMAN CJ: I have read the judgment of Hulme J in draft. I agree with his Honour’s reasons in the first trial, involving the complainant MK and with the order his Honour proposes in that case. With respect to the second trial, involving the complainant CJ, his Honour sets out the facts and the issues and I gratefully adopt his Honour’s reasons in that respect. His Honour would allow the appeal on the basis of the inadequacy of the Longman warning and order a new trial.

2 The stringency of the requirement for a Longman warning has emerged clearly from the majority judgments in Crampton v The Queen (2001) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343, which were analysed in this Court in the judgments of Wood CJ at CL and Sully J in R v BWT (2002) 54 NSWLR 241. Subsequent to that analysis the High Court returned to the issue in Dyers v The Queen (2002) 210 CLR 285 and held, notwithstanding a delay of five years, that no Longman warning was required.

3 The analysis in BWT has not been adopted in other cases. (See e.g. R v DBG (2002) 133 A Crim R 227 at [28]; Christophers v The Queen (2000) 23 WAR 106 at [37]; Chrisafio v The Queen (2003) 27 WAR 169 at [1], [30]-[31]; RBK v The Queen [2004] WASCA 216 at [34], [99]; Ada v Western Australia [2005] WASCA 162 at [15].) However, in view of my conclusions below, it is unnecessary to consider this further.

4 Hulme J has set out the whole of the warning that the trial judge gave on the effect of delay. A number of the features of what her Honour did say are of particular significance.

5 First, her Honour expressed her observations in terms of a “warning”, it was not merely a comment. Nor did her Honour say anything to diminish the force of the warning she gave.

6 Secondly, her Honour clearly added the weight of the authority of the Court on this matter. She made express reference to trial counsel’s address and reinforced it. The summing-up occurred on the day after the addresses. The jury would have in mind the addresses on the issue of delay, particularly that of counsel for the accused. Her Honour said:

“As Mr Buckman has made clear to you, it is obvious that, with the passage of time, the accused is not in a position to cast his mind back or to consult records or to come up with any evidence of where he might have been on any of these occasions or what the routine might have been on any of those occasions, in a way which might have allowed him to call evidence to cast doubt on the Crown case.

7 Thirdly, she identified at the outset the difficulty which High Court authority, from Longman through Crampton and Doggett, identifies to be the occasion upon which warning must be given. She said:

“It is most important that you appreciate fully the effects of the delay – that is the delay between 1989 and 2002 – on the ability of the accused to defend himself by testing prosecution evidence or by adducing evidence in his own case to establish a reasonable doubt about his guilt.” (SU 9.5)

8 It is significant that her Honour directed attention to the delay between the incidents and the laying of charges. There was very little delay in terms of the making of complaint within the family.

9 Her Honour reiterated the importance of the matter when she said:

“It is that particular feature of the delay – between 1989 and 2002 – which you must take into account when you come to consider the evidence of CJ and when you come to determine, whether or not, you can rely upon her evidence as a witness of truth.”

10 Fourthly, her Honour expressly linked the warning she was giving to the task of the jury, by requiring them to take into account the fact of delay when making the critical assessment about the truthfulness and reliability of the complainant, which on several occasions she identified as the critical issue for the jury’s determination. Her Honour said:

“In other words, you could only convict the accused if you were satisfied beyond reasonable doubt about the truth and reliability of the complainant’s evidence, with respect to each of the seven charges in the indictment, and only after taking into account the fact that the passage of time, since these events, has directly affected the ability of some of the Crown witnesses to accurately recall the chronology and surrounding circumstances of these events. …” (SU 10.8-11.1)

11 Although her Honour referred at this point to Crown witnesses, she had already referred to evidence for the defence, both that of the accused himself and of his daughter as being subject to similar difficulties. She had also referred at the outset to the difficulty of “testing prosecution evidence”.

12 The full Longman warning (see Longman v The Queen (1990) 168 CLR 79 at 91) is”

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy.”

13 It is wrong to treat any judicial statement, even in a judgment of the High Court, as the equivalent of a statutory formula. The issue is whether or not the critical features of the Longman warning were, as a matter of substance, transmitted to the jury. In my opinion they were.

14 The Longman warning, after Crampton and Doggett, should be expressed as a warning and not merely a comment. That was done. Her Honour, after referring to the delay of 15 years said:

“In these circumstances it is most important that I give you these warnings.”

15 The Longman warning requires identification of the reason for it being given, i.e. the inability to adequately test the evidence of the complainant. This was done by her Honour at the very outset, with emphasis on its importance. Indeed, it was extended beyond “testing prosecution evidence” to encompass the difficulty occasioned in “adducing evidence in his own case”.

16 The basic structure of the Longman warning is “Dangerous to convict unless … satisfied of [the] truth and accuracy [of the complainant’s] evidence”. Her Honour’s formulation was: “You could only convict the accused if you were satisfied beyond reasonable doubt about the truth and reliability of the complainant’s evidence”. There are two elements. In both respects it appears to me that her Honour’s warning was, if anything, stronger than the Longman warning.

17 To say that the jury can “only convict if” appears to me to be more forceful than to say it would be “dangerous to convict unless”. Similarly, to say that the jury has to be “satisfied beyond reasonable doubt” about the complainant’s evidence, is a higher hurdle than to say that the jury needs to be “satisfied”.

18 The only issue is whether, as a matter of substance, her Honour conveyed to the jury the content of, and the sequential nature of, that part of the Longman warning that refers to “scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning”. In my opinion, her Honour’s direction does do so.

19 The formulation her Honour adopted – “satisfied beyond reasonable doubt about the truth and reliability of the complainant’s evidence” – encompasses all that would be conveyed by the words “scrutinising the evidence with great care” and “considering the circumstances relevant to its evaluation”. This is particularly so as her Honour had emphasised on a number of occasions in her summing-up, that acceptance of the complainant’s evidence was essential to the Crown case.

20 Her Honour had earlier said that CJ was an “essential witness to proof of the Crown charges” (SU 7.5) and that “The Crown relies entirely for proof of those charges on the evidence of CJ” (SU 7.7). Her Honour added:

“Because CJ is an essential witness to proof of the Crown case, you should exercise caution before you convict the accused on the evidence of CJ. You should only find the accused guilty if you are satisfied of the truth of the evidence of the complainant.” [SU 7.8]

21 The jury could have been in no doubt that it was obliged to scrutinise the evidence with great care. Moreover, as I will show when dealing below with the proviso, it is quite clear from the divergent verdicts of the jury, that it did scrutinise the evidence with great care and considered the circumstances relevant to its evaluation.

22 There remains the element in the Longman direction that the jury should pay heed to the warning. Her Honour commenced this passage of her summing-up with a reference to the delay and the ‘importance’ of the “warnings” she was about to give. She reinforced this by stating, at the outset, that it was “important” that the jury “fully appreciate” the effect of delay and referred the jury to the difficulties occasioned to the defence in both testing prosecution evidence and adducing evidence in the defence case.

23 Furthermore, as quoted in [9] above, after referring to the difficulty occasioned to the accused in calling evidence by reason of the delay, her Honour said that the jury “must take into account” the delay “when you come to consider the evidence of CJ and when you come to determine, whether or not you can rely upon her evidence as a witness of truth”.

24 Finally, her Honour said that the jury should satisfy itself about the complainant’s evidence “only after taking into account the fact that the passage of time, since these events, has directly affected the ability of some Crown witnesses to accurately recall the chronology and the surrounding circumstances of these events”.

25 The only blemish I can identify in her Honour’s direction, when compared with the substance of a Longman warning, is her Honour’s failure to refer at this point to difficulties of cross-examination of the complainant by the defence. However, that matter was emphasised at the outset of the warning in the reference to “the ability of the accused to defend himself by testing prosecution evidence”.

26 I am left in no doubt that the jury fully understood that it had to “pay heed to the warning” when assessing the complainant’s evidence.

27 If I had been of a different view as to the adequacy of the warning actually given by Latham DCJ, as her Honour then was, it would have been necessary to consider the application of the proviso. In Doggett the majority, who allowed the appeal on the Longman direction ground, gave consideration to the application of the proviso in the circumstances of that particular case. (See at [55] per Gaudron and Callinan JJ and at [143]-[159] per Kirby J.) Their Honours found that the proviso was not applicable.

28 Plainly, with respect to the application of the proviso, each case must turn on its own facts. There are significant differences between the two cases. Doggett concerned seven counts extending over a period of some seven years beginning when the complainant was eight and concluding when she was about 15 years old.

29 This case gives rise to a number of considerations that also arose in Doggett. There was a complaint made within the family, albeit two years later in Doggett, rather than some months later as in this case. Similarly, there was evidence capable of constituting an admission on the part of the accused with a suggestion that there may have been some forensic advantage in not requiring a full Longman warning that may have led to greater emphasis on the evidence of admission. As in this case, trial counsel did not request a full Longman direction in Doggett. Furthermore, the complainant gave evidence of an early complaint to a school friend. That was denied in Doggett. In this case the school friend could not recall.

30 The incidents, the subject of the seven charges in this case, occurred during the course of 1999 over a period of about six months. This case differs from other cases in that there was very little delay in the making of the complaint which led to the Appellant being confronted with allegations of this character in a family rather than forensic context. However, there was a delay of some 13 years before these matters were brought to the attention of the police when the Appellant was first required to answer the allegations in a forensic context. Clearly, this delay is within the scope of the circumstances in which a Longman warning has come to be required. It is the forensic disadvantage to which the warning is directed.

31 In Doggett, the complaint within the family was delayed by two years. In this case, on the evidence of CJ, within four to six months of the incidents occurring she had written a letter which she gave to her mother, complaining about sexual impropriety by the Appellant. Obviously the letter was not in the form of a list of the charges ultimately proffered, but on the evidence it raised allegations of the character which were finally formulated as charges.

32 On CJ’s evidence the letter said that the accused was “doing things to her that she didn’t like”, or words to that effect. In this case the accused understood close to the time of the offences that CJ was referring to sexual conduct of a character that she had done nothing to initiate.

33 The Appellant’s evidence (T99 on 12/8/03) was to the effect that he read the first few lines of the letter, which said “Mum I need to tell you some things that have been happening between Bill and I”. He said he proclaimed “That’s bullshit” and stormed out of the house. He said that CJ’s mother “started screaming and carrying on so I just jumped in the van and drove off”.

34 The mother had given evidence, which he denied, that his response to being shown the letter and being asked why did he do it, was:

“I don’t know why I did it, I’m sick, I know I need help, I may as well be dead and put everyone out of their misery – If you had been there it wouldn’t have happened.”

35 The Appellant acknowledged in his evidence that the very fact that her mother KK was swearing and screaming at him and calling him “a bastard” indicated that she expected some sort of explanation. The Appellant never asked for the precise details of the allegations but, unlike many other cases in which issues of this character have arisen, he had an opportunity to do so at a time when the detail was open to be tested, albeit not in a forensic context.

36 The Appellant consulted a psychiatrist in 1995. In his evidence (at 101 line 46 and 102) he said that he had consulted the psychiatrist because “allegations had been made”. The evidence from the psychiatrist, Dr Subhas, based on his contemporaneous notes, was that the Appellant had been in trouble for “molesting CJ”. The Appellant denied that he had used the word “molesting”. Nevertheless, he accepted that the relevant “allegations” were “what has come out in this Court” (T102 line 18).

37 Dr Subhas had also given evidence, from his contemporaneous notes, that the Appellant had told him that he had promised KK six years before that “he wouldn’t do it again”. This takes the relevant conversation back to about the period of the confrontation over the letter. With respect to this matter the Appellant gave the following evidence:

“Q. Sorry do you agree that you may have said that you had promised KK not to do it again?

A. I said I may have said those words but regarding what I don’t know.”

38 It was at this point that he acknowledged that the relevant “allegations” were those that had “come out in this Court”. He was then asked (at T102 lines 20-29):

39 Another relevant piece of evidence is the fact that the Appellant wrote to CJ before her wedding in October 1995 to apologise for the problems in the family. There was no express reference in that letter to sexual matters. The Appellant’s evidence was that it was reference to “all the fights and arguments and all the misery that he had caused over the years”. He admitted that he took responsibility for these matters in order to ensure that everything was at peace at the time of the wedding but did not accept that he took responsibility for any sexual misconduct.

40 The letter said:

“I don’t know where to start but I do know I’m sorry for everything that has happened. Sometimes I wish I was dead because of the trouble I have caused this family. I wish we could turn back the clocks about seven or eight years to when we had some good times.”

“I thought maybe we could forget about everything and live a normal life but it is not to be.”

“Once again I am very sorry and I hope one day you can forgive me. It was all my fault. I am also very sorry to your mother. I have caused her a lot of pain as well.”

41 These various matters of corroboration and admission, insofar as they are such, are similar in their general nature to the evidence in Doggett. As in that case, they are not specific with respect to particular charges. I must accept, on the authority of Doggett, that these matters are not entitled to weight in the application of the proviso.

42 I proceed on the assumption that I am wrong in my above analysis and that it is necessary for a trial judge to use the precise Longman formulation or, even if that is not essential, that some aspect of the Longman warning was not given, as a matter of substance. It remains the case that a warning of strength was given. Even if not fully compliant with Longman, it is relevant to have regard to the strength of the warning actually given.

43 In Doggett the only warning given to the jury was that it should “scrutinise the complainant’s evidence very carefully”. (See supra at 370 [101].) That was found to be inadequate. It is relevant to the application of the proviso that the direction in this case contained reference to virtually all, if not all, the elements of a Longman warning without, at least in express terms, the reference to “dangerous to convict”, “scrutinise with great care” and “after taking into account the warning” and perhaps some aspects of the sequence contained in the Longman direction.

44 However, in Doggett, unlike the present case, the following did not occur:

· There was no express use of the word “warning”.

· There was no emphasis given to the authoritative statement that her Honour gave in this case that “ … is most important that you appreciate fully the effects of the delay”.

· There was no express reference to the legal trigger for the warning, namely the inability of the accused to defence himself by testing prosecution evidence or by adducing evidence, as constituting the element of which the jury may not, uninstructed, be aware.

· There was no express reinforcement of submissions by trial counsel about the difficulties the accused found in giving his evidence.

· There was no use of forceful terminology such as “you could only convict the accused if you were satisfied beyond reasonable doubt of the truth and reliability of the complainant’s evidence”.

· There was no express reference of the character, which I have quoted above, that the process of being satisfied of the complainant’s evidence could occur “only after taking into account” the effect of the delay in certain respects.

45 Even if I am wrong, and the summing-up did not comply fully with the requirements of Longman as subsequently interpreted, it is much closer to a full Longman direction than anything that occurred in Doggett. The strength of the direction is relevant to the determination of whether the proviso is applicable on the facts of this case.

46 Of particular significance in this case is the fact that the jury only convicted on four of the seven counts. In Doggett, the jury convicted on all seven counts. This fact was given emphasis in both judgments that refused to apply the proviso.

47 Gaudron and Callinan JJ said at 357

Longman

48 The first two counts to which their Honours referred in Doggett, were the counts which occurred at the age of eight and involved an allegation that the accused fondled the complainant while she was asleep, which conduct caused her to awake.

49 To similar effect was the emphasis Kirby J gave to the choice between the evidence of a complainant and the denials of an accused, that is the usual structure of sexual assault cases. His Honour said at 383:

Longman

50 His Honour added, in conclusion on the proviso:

Longman

51 In the second trial of the present proceedings, the jury found the Appellant guilty of four of the seven charges that he faced. With respect to the first count in the indictment he was found not guilty. With respect to the counts 2 and 3 on the indictment the jury were unable to agree.

52 The contrast between the jury in Doggett, which convicted on all counts, and the jury in this case, which carefully considered the evidence and acquitted on one count and could not agree on two counts is, in my opinion, significant to the application of the proviso.

53 Her Honour did not use the precise terms of the Longman direction that the jury had to scrutinise the complainant’s evidence with great care. However, the result in the case with respect to three out of the seven charges shows that that is precisely what they did do. This was not a case like Doggett, in which it could be said that the jury merely preferred the evidence of the complainant over that of the accused, without undertaking a careful consideration in the light of an express warning.

54 With respect to the first count, the reason for the jury’s verdict is apparent. The complainant said that the Appellant had felt her breasts whilst teaching her how to drive. The car was of a kind which had the gearstick on the side of the steering wheel. The Appellant gave evidence that he had taught a number of the children to drive on that vehicle and that he had to put his arm around them to change gears. The jury were not satisfied beyond reasonable doubt that what occurred was not an accidental touching, even though it had been regarded by the complainant as deliberate. This was the only charge of which the Appellant was found not guilty.

55 The jury were unable to agree on counts 2 and 3. These were the first two occasions on which, on the complainant’s evidence, the Appellant had taken her hand and placed it on his penis, on the second occasion to the point of ejaculation. The circumstances of count 3 bore some resemblance to the circumstances of counts 4 and 6. They were distinct from counts 5 and 7, where an act of sexual intercourse by means of digital penetration occurred.

56 However, counts 4 and 5, and 6 and 7, each refer to the same occasion. There was a single course of conduct in which the Appellant forced the complainant to masturbate him and, while that was occurring, he inserted his finger into her vagina. On neither of the occasions involved in counts 2 and 3 was there any suggestion of digital penetration.

57 There has been no suggestion in this appeal that the verdicts were in any way inconsistent. Nor, in my opinion, could there be.

58 It is pertinent to note that the complainant’s evidence with respect to counts 2 and 3 does not appear to have differed in any way with respect to the assuredness with which she recollected detail with respect to other counts. Nevertheless, the jury did not unanimously accept her evidence to the criminal standard on these counts.

59 The Appellant gave evidence to the effect that there were two occasions on which the complainant had approached him, touched his penis and requested certain favours, particularly sums of money. To some degree his evidence was corroborated by his natural daughter, who gave evidence that he had told her about these approaches by the complainant, and had done so at a time well before any possibility of prosecution had arisen.

60 It is of significance that the trial was conducted on the basis that the incidents where, according to the Appellant, the complainant allegedly initiated a sexual approach to him, were linked to counts 2 and 3.

61 In the course of the evidence in chief of the Appellant he first addressed count 1. He was then taken to the complainant’s evidence about counts 2 and 3 and denied each of them. He then gave the following evidence:

“Q. Did anything like that happen at all?

A. Something similar yes but not like that.

Q. What do you say similar happened? (T96)

62 The Appellant then gave evidence about the two occasions on which he alleged the complainant had approached him.

63 This interconnection was repeated in the trial judge’s summing-up. Her Honour outlined the evidence on both sides with respect to counts 2 and 3 (at pp14-15), then, at this point, her Honour referred to the evidence both in cross-examination of the complainant and in the Appellant’s own evidence, about the two occasions when he alleged CJ came into his room uninvited and touched his penis (summing-up pp15-16). It is quite clear that the evidence with respect to counts 2 and 3 was linked in the course of the trial to the allegation that CJ had initiated the relevant sexual conduct.

64 There are a significant range of permissible options with respect to this body of evidence. This Court is not in a position to know what it was that led at least some members of the jury to distinguish the evidence on these counts from the counts upon which the jury unanimously returned a verdict of guilty. There was a distinction in the evidence in two respects. On the occasions of counts 4 and 6 digital penetration had also occurred, reflected in counts 5 and 7. Furthermore, the evidence to the effect that the complainant had made a sexual approach on two occasions, was clearly referrable to the allegations involved in counts 2 and 3. There was scope for disagreement within the jury with respect to counts 2 and 3.

65 The acquittal on count 1, together with the failure to agree on counts 2 and 3, indicates that the jury had attended carefully to the directions they were given and had carefully weighed the evidence with respect to each count.

66 This is not a case in which the acquittal or inability to agree with respect to some counts is such as to suggest that the jury must have had some doubts about the complainant’s credit. This is a case in which the jury carefully attended to the evidence and took into account the whole of the evidence with respect to each count separately.

67 As is usually the case, the jury was expressly directed that they were not obliged to accept the whole of the evidence of any witness and that they could accept part and reject part. This, of course, applied to the evidence of the complainant. The jury was also given the usual direction that each count had to be treated separately. It was also directed, in terms, that it had to accept the evidence of the complainant in order to convict. As noted above, she was described as an essential witness and the jury was told that all of the charges depended on their acceptance of her evidence. The jury were also warned, in terms, that if they were not satisfied beyond reasonable doubt about CJ’s truthfulness or reliability in relation to one count, then that had to be taken into account in assessing her truthfulness or reliability on her evidence generally.

68 In the light of these directions, the jury was entitled to reach the verdicts that they did with respect to the counts on which they did not convict. More significantly, however, for present purposes is the care in approaching their task which is manifest in the fact that the jury did not simply accept the complainant’s evidence in all respects, and the differentiation between the acquittal on count 1 and the inability to agree on counts 2 and 3.

69 The two matters to which I have referred above lead me to conclude that the Appellant has not lost a real chance of acquittal. The strength of the direction actually given and the careful attention which the jury gave to the case, particularly the evidence of the complainant, is such as to justify the application of the proviso in this case.

70 In my opinion, the appeal should be dismissed.

71 SULLY J: I have had the privilege of reading in draft the judgments of both the Chief Justice and Hulme J.

72 As to the first trial, I agree with the orders proposed by Hulme J and with his Honour’s reasons for those orders.

73 As to the second trial, too, I agree with the orders proposed by Hulme J. I agree in general with his Honour’s reasons for those orders.

74 The Chief Justice comes to a different conclusion in connection with the second trial, and does so in substantial part upon the basis of his Honour’s views concerning what is required in connection with the so-called Longman direction. In deference to the Chief Justice I wish to say for myself something about that aspect of the current law.

75 The judgment which I wrote in BWT (2002) 54 NSWLR 241 was intended to achieve two broad objectives. One was to synthesise, as best that could be done, the opinions variously expressed in the judgments of the many Justices of the High Court who had decided the then leading High Court cases of Longman (1989) 168 CLR 79; Crampton (2001) 206 CLR 161 and Doggett (2001) 208 CLR 343. The other was to make a restrained but frank protest against the very burdensome task, as I then saw it and as I continue to see it, of any trial Judge called upon to direct a jury faithfully in accordance with the law as established by those three High Court decisions, and at the same time faithfully in accordance with copious exhortations by variously constituted Benches of this Court as to the need for clarity, simplicity and brevity in the framing of a jury charge in any criminal case.

76 In paragraph 95 of my judgment in BWT I set out as best and as clearly as I could what seemed to me to be the propositions of law that were derivable from the three High Court decisions. The propositions thus stated at [3](a), (b) and (c), in particular, were not intended to be an exercise in abstract jurisprudence. They were intended to give a practical answer to any trial Judge who asked the practical question: “What must I say to this jury if I am to have a proper professional confidence that whatever it is that I do say will withstand revision by those who will come later to it with the benefit of hindsight?”.

77 The Chief Justice draws attention to subsequent decisions of which his Honour remarks that the BWT analysis “has not been adopted in other cases”. Five decisions are thus cited: one, a decision of this Court constituted by Meagher JA, Simpson and Howie JJ; a further two, decisions of the Western Australian Court of Criminal Appeal; and the remaining two, unreported decisions of what I take from the citations to have been the Western Australian Court of Appeal.

78 The one decision of this Court is DBG (2002) 133 A Crim R 227. The principal judgment is that of Howie J. I have read, in particular, the paragraph, paragraph 28, of that judgment to which the Chief Justice particularly refers. Paragraph 28 reads:

“The second ground of appeal asserts that his Honour erred in law in failing to warn the jury that it was “dangerous to convict” on the evidence of the complainant. Support for this ground of appeal is said to be found in the decision of the High Court in Longman (1989) 168 CLR 79; 43 A Crim R 463, and a long line of decisions both of the High Court and this court dealing with the proper warnings, comments and directions to be given in cases where there has been a lengthy delay between the date of the alleged offence and the trial of the accused for that offence. It is unnecessary in the present case to do more than acknowledge their existence. But I do not believe that they reveal that a rule of practice or of law existed at the time of this trial requiring that the jury be directed that it would be dangerous to convict on the evidence of the complainant whenever such delay had occurred.”

79 Insofar as it might be correct to say of that passage that it does not adopt the BWT analysis, then it seems to me to be equally correct to say that neither does the passage seriously question, let alone express reasoned disagreement with, the BWT analysis. Other aspects of that analysis are, indeed, adopted in paragraph 33 of his Honour’s judgment: at least as I read that paragraph.

80 Of the two reported Western Australian decisions, one: Crisfio (2003) 27 WAR 169 expands a little upon the earlier decision, which it otherwise adopts and applies, of Christophers (2000) 23 WAR 106.

81 In Christophers, Owen J, Pidgeon and IPP JJ concurring, lists in paragraph 37 of his Honour’s judgment eight particular propositions. The only ones of them to have particular present relevance are those numbered 6 and 8. They read:

“6. There is no prescribed or ritualistic formulation in which the warning is to be delivered: see James v The Queen [2000] WASCA 100 at [23]. It must be tailored to the features of the case that have dictated that it be given. This is not surprising given that it arises from the circumstances of the particular case.

…………………………………………………………………….

8. Although the word “dangerous” is used from time to time in the judgments in Longman , the adequacy of the warning in any particular case is not necessarily sensitive to whether that phrase was uttered: Gaulard v The Queen [2000] WASCA 218 at [14]. What must be brought home to the jury is that they need to be “persuaded of the truth and accuracy of the evidence before they may place reliance on it”: see James at [22]. In this context, “truth and accuracy” equates to reliability.”

82 In Crisfio, Murray J, delivering the principal judgment of the Court, and having referred to the propositions stated by Owen J in Christophers, said:

“28. In the later case of Allegretta v The Queen [2003] WASCA 17, the judgment of this court was given by Roberts-Smith J, with whom Malcolm CJ and McKechnie J agreed. The trial of sexual offences was held in 2002. It appears that the offence principally charged was that of having a sexual relationship with a child under the age of 16. It seems that the relationship was said to have commenced in 1995 and continued from 1996 until the end of 1999, a period during which the complainant alleged that she resided with the applicant in his home. The applicant gave evidence and called witnesses, including his wife. His case was that he did not sexually interfere with the complainant in any way at any time. He said he first met her in 1996 and she only came to live in his house in about July 1998. The first complaint of the matter occurred in March 2000, about five years after the complainant alleged that the sexual activity commenced.

29. The trial judge did no more than urge the jury “to be very careful in your analysis of the evidence” because of the delay, the lack of direct corroborative evidence and because the complainant was, at the beginning, a relatively young child of perhaps 12 or 13 years of age.

30. Roberts-Smith J referred particularly to the fact that the applicant relied on R v BWT (2002) 54 NSWLR 241, a decision of the Court of Criminal Appeal of New South Wales. His Honour recounted at some length passages from the various judgments in that case, including some bearing on the content of the warning. His Honour noted the decision of Sully J who analysed the relevant High Court authorities and set out in a number of propositions what, in short form, his Honour thought the law to be. As to those propositions and particularly in respect of their reference to the content of the warning, Roberts-Smith J (at [105] ) said that whether or not those propositions were all “necessarily strictly applicable in the way presented by his Honour” did not fall to be decided in Allegretta . The ratio of that decision, so far as it concerns what may be described as the Longman direction, is that such a direction was required in the instant case and what had been said by the trial judge in that case “fell significantly short of such a warning”.

31. The case of Christophers was not referred to by Roberts-Smith J in Allegretta and it does not appear to have been cited to the court. The summary of the law by Owen J in that case is not on all fours with the summary adopted by Sully J in BWT .”

83 Malcolm CJ, in a brief concurring judgment, said:

“In my opinion, the summary of the relevant law by Owen J in Christophers (at [37] ) set out in eight propositions is an accurate statement of the law. In particular, I agree with Owen J that, although the word “dangerous” is used from time to time in the judgments in Longman v The Queen (1989) 168 CLR 79, the adequacy of the warning is not necessarily dependent on the use of that particular expression or any similar expression.” (27 WAR, 170)

84 Parker J, also in a brief concurring judgment, added:

“While the purpose of the direction required is to warn the jury of the dangers of conviction which may not otherwise be apparent to them, it is not the effect of the decision in Longman , or the other relevant authorities, that the words “danger of conviction” or “warning” must be used. What is critical is that the necessary effect be achieved by the directions given, it being desirable that the direction is adapted to the particular circumstances of the case.”

85 Owen J’s stated principles having been thus endorsed, I return to the two particular principles extracted above and make the following observations about them:

[1] There is, I at once agree, no dearth of case law, including High Court case law, for the proposition that trial Judges, when giving directions mandated by appellate authority, should not adopt a mere “prescribed or ritualistic formulation” , and should not merely parrot the words actually used by that appellate authority.

[2] There are, however, areas of the criminal law in connection with which a trial Judge who departs too readily, not to say too idiosyncratically, from what the relevant appellate authority has actually said, risks the giving of what will be subsequently branded as a misdirection. Examples of such areas of law and practice are the giving of a direction based upon Black (1993) 179 CLR 44; and the giving of directions based upon Azzopardi (2001) 205 CLR 50

[3] The directions which are suggested in BWT at paragraph 95 [3](a), (b), (c), (d) and (e) were not intended to be mere “ritualistic formulations” . They were intended to give practical guidelines as to substance and not merely as to form.

“dangerous to convict”

86 The judgment of the Chief Justice in the present matter considers the effect upon the antecedent law about Longman directions of the decision of the High Court in Dyers v The Queen (2002) 210 CLR 285.

87 In that appeal three questions were raised by the appellant: first, the propriety of a direction that had been given by the trial Judge and modelled upon things said in Jones v Dunkel (1959) 101 CLR 298; secondly, whether a Longman direction ought to have been given; and thirdly, whether the jury’s verdict of guilty could be supported reasonably by the evidence at trial.

88 The appeal was decided by a Bench of 5 Justices. Gaudron and Hayne JJ did not find it necessary to consider the Longman point; their Honours being satisfied that the appellant had made good the Jones v Dunkel point. McHugh J devoted almost the entirety of his Honour’s judgment to the Jones v Dunkel point, as to which his Honour was not persuaded that the appellant’s point had been made good. His Honour agreed with Kirby J’s reasons for rejecting the other grounds of appeal. Callinan J did take up the Longman point, as to which his Honour expressed as follows his conclusions:

“But I am unable to say that in this case the trial judge’s directions with respect to the delay were insufficient or erroneous. His Honour referred to the considerable time that had elapsed, and that had the events occurred as the complainant alleged, the jury might reasonably have expected that she would have spoken quickly to somebody. His Honour then referred to her explanation, and said that there might be good reason why a victim of a sexual assault might refrain from making a complaint. His Honour again mentioned her age and drew attention to her inferior position in the sect, as opposed to the position of the appellant. The trial judge pointed out that the Crown case relied solely upon the evidence of the complainant, and said that if her evidence were not accepted, that would be the end of the matter. And, quite properly, his Honour emphasised that the delay in making the complaint and the bringing of the charge might well have placed the appellant “in a very difficult and disadvantageous position ………… without an inkling that such an allegation would be made”. In the same context his Honour referred to difficulties of recall that witnesses generally might have because of the time that had passed. It was not erroneous for his Honour to say, as he also did, that some gaps in the complainant’s memory might similarly be explained.” [paragraph 130]

89 His Honour did not refer to BWT or to the Western Australian decisions earlier herein mentioned.

90 The judgment of Kirby J contains, at paragraphs 55 – 58 inclusive, these passages:

“55…………… I sympathise with the difficulty that trial judges and courts of criminal appeal face in conforming to the various opinions stated in this court in relation to the Longman requirement. Differing emphasis has been placed at different times by different members of this court upon different parts of the reasoning in Longman and in particular the considerations mentioned by Deane J and McHugh J in their separate concurring reasons in that case. However, I believe that it is fair to say that several appeals (and many more applications for special leave) in which the point has been re-agitated have only come before this court because of what seems, with respect, to be a reluctance on the part of some judges to conform to the law established in Longman . Some judges have even confessed that they find obedience to the Longman direction to be “unpalatable”. In my opinion, a correct statement of the present law is set out in the analysis of Sully J, in the New South Wales Court of Criminal Appeal in R v BWT . It is, and it is expressed to be, stringent.

56. In Jones v The Queen the majority, either expressly or, as I read it, implicitly, concluded that a delay of four years before complaint after the first alleged act required a Longman warning. I dissented on that point, calling attention to the fact that the relevant delays in Longman had been much longer – twenty-one and twenty-five years. The trial judge in Jones had referred to the delay in terms that seemed to me to be adequate. But I was in dissent. Jones is an indication of the rigour of the requirement adopted by this court. It supports the analysis of Sully J concerning the more recent decisions and the state of binding authority.

57. There is no mathematical formula applicable to a case of delay so that it can be said with certainty that, for a specified delay, a Longman warning must, or need not, be given to a jury. As in all such matters, it is necessary to consider the trial judge’s instructions in the context of the contested issues in the trial and all of the evidence.

58. In the present matter there were particular features that made the delay less significant than it might have been in another common, more typical, case. The occasion of the alleged assault was, in the end, precisely nominated by the complainant. The appellant had access to detailed written records concerning his whereabouts at that time. The day was a significant one for the appellant and for the complainant and her mother. It would certainly have been open to the trial judge to give a Longman warning. Indeed, it would have been prudent for him to have done so. However, in the particular circumstances I, like Callinan J, would not have disturbed the jury’s verdict on this complaint of misdirection, had it stood alone.”

91 His Honour’s footnote (84) specifically picks up my paragraph [95].

92 All of the foregoing considerations have brought me to this position:

[1] Two Justices of the High Court have approved what I said in my paragraph [95] in BWT : Kirby J expressly and McHugh J. as I read his Honour’s judgment, impliedly.

[2] No Justice of the High Court has yet said that the paragraph [95] analysis or any part of it is wrong.

[3] No other appellate authority by which I am bound has said that the analysis or any part of it is wrong.

[4] It is said in the Book of Proverbs that one’s man meat is another man’s poison. It is, I apprehend, not an impermissible or an illogical analogy that one man’s ritualism is another man’s consistency; and if ever there was a current need for consistency in criminal law and procedure, it is to be found, I would respectfully suggest,- in the need to give some consistent shape and direction to the necessity in a particular case for a Longman direction, and to the requirements of the direction should one be needed.

93 It is for the whole of the foregoing reasons that I have concluded that the Longman direction as given was insufficient. I agree with Hulme J that the statutory proviso should not be applied. If, as I believe, the appellant was entitled to a “dangerous to convict” direction, but did not get one, then in my opinion he lost an entitlement of real value and there was in consequence a substantial miscarriage.

94 HULME J: On 8 August 2003 the abovenamed Appellant was convicted by a jury of two offences:-

(i) For that between 20 September 1995 and 10 October 1995 at Lurnea in the State of New South Wales he did assault [MK] and at the time of the assault did commit an act of indecency upon her in circumstances of aggravation, namely at the time [MK] was under the age of 16 years, namely 14 years.

(ii) For that between 20 September 1995 and 10 October 1995 at Lurnea in the Sate of New South Wales did have sexual intercourse with [MK] without her consent and knowing she was not consenting in circumstances of aggravation, namely at the time [MK] was under the age of 16 years, namely 14 years.

95 On 6 August 2003, while that jury was considering its verdict, the Appellant was arraigned on other charges:-

(i) The he between 1 January 1989 and 31 December 1899 at Lurnea in the State of New South Wales did assault [CJ], a person then under the age of 16 years, namely 12 or 13 years, and at the time of the assault did commit an act of indecency upon her, at a time when she was under his authority.

(ii) That he between 1 January 1989 and 31 December 1989 at Lurnea in the State of New South Wales did assault [CJ], a person then under the age of 16 years, namely 12 or 13 years, and at the time of the assault did commit an act of indecency upon her, at a time when she was under his authority.

(iii) That he between 1 January 1989 and 31 December 1989 at Lurnea in the State of New South Wales did assault [CJ], a person then under the age of 16 years, namely 12 or 13 years, and at the time of the assault did commit an act of indecency upon her, at a time when she was under his authority.

(iv) That he between 1 January 1989 and 31 December 1989 at Lurnea in the State of New South Wales did assault [CJ], a person then under the age of 16 years, namely 12 or 13 years, and at the time of the assault did commit an act of indecency upon her, at a time when she was under his authority.

(v) That he between 1 January 1989 and 31 December 1989 and Lurnea in the State of New South Wales did have sexual intercourse with [CJ], a child then over the age of 10 years and under the age of 16 years, namely 12 or 13 years, at a time when she was under his authority.

(vi) That he between 1 January 1989 and 31 December 1989 at Lurnea in the State of New South Wales did assault [CJ], a person then under the age of 16 years, namely 12 or 13 years, and at the time of the assault did commit an act of indecency upon her, at a time when she was under his authority.

(vii) That he between 1 January 1989 and 31 December 1989 at Lurnea in the State of New South Wales did have sexual intercourse with [CJ], a child then over the age of 10 years and under the age of 16 years, namely 12 or 13 years, at a time when she was under his authority.

96 On 13 August 2003 a second jury found him guilty in relation to counts 4-7, not guilty of count 1, and were unable to agree in respect of counts 2 and 3.

97 On 24 October 2003 the Appellant was sentenced by Judge Latham (as her Honour then was) as follows:-

Counts 5 & 7: On each count, imprisonment for 3 years to commence on 12.8.2003 and expire on 11.8.2006 with a non-parole period of 1 year and 6 months to expire on 11.2.2005.

Count 2: Imprisonment for a period of 6 years to commence on 12.8.2005 and expire on 11.8.2011 with a non-parole period of 3 years to expire on 11.8.2008.

98 The effective sentence thus imposed on the Appellant was imprisonment for 8 years including non-parole periods totalling 5 years both periods commencing on 12 August 2003.

99 On 4 November 2003, the Appellant lodged a Notice of Intention to Appeal and Notice of Intention to Apply for Leave to Appeal.

100 On 19 April and 28 May 2004, applications were made for extensions of time during which these notices were effective. Extensions, the last of which expired on 15 June 2004, were granted. The requests for these extensions provide reasonable bases for them but the last request, made on 28 May 2004 and which sought only until 15 June, indicates that no, or no significant, further extensions should have been necessary. At that stage Legal Aid had been provided for some work.

101 On 8 June 2005 the Appellant lodged a Notice of Appeal, a Notice of Application for Leave to Appeal against Sentence and a Notice of Application for Extension of Time for the two Notices just mentioned.

102 The only explanation given for the delay since June 2004 in the filing of the Notice of Appeal is as follows. In August 2004 the Appellant withdrew instructions from the firm of solicitors previously acting and instructed his present solicitors to obtain an advice as to the merits of an appeal. A brief to advise was forwarded to Senior Counsel on 10 August although from August to October 2004, counsel was instructed not to commence work as funds on account of his fees had not been received.

103 It was not until April 2005 that Counsel’s advice was provided, he having worked on the brief in the interim “when opportunity arose” but this was limited by other professional demands and, one may infer, because counsel also had some “personal tragedies” in January 2005 to deal with. The Court accepted, without any requirement for detail, the fact of those tragedies and that they would have caused a degree of delay.

104 The grounds of appeal urged on behalf of the Appellant are as follows:-

First Trial
1. There was a miscarriage of justice as a result of the learned trial Judge’s failure to give a Longman warning.

2. The learned trial judge erred by failing to direct the jury about the limited use they could make of evidence of prior sexual misconduct not the subject of the charges.

3. The learned trial judge erred by failing to caution the jury about the dangers of acting upon the admissions that the Appellant made to KK and JK.

Second Trial
4. The Longman warning given by the learned trial judge was inadequate and resulted in a miscarriage of justice.

Application for leave to appeal against Sentence

105 Not one of the matters raised as a ground of appeal against conviction was the subject of complaint at trial.

106 The principal evidence relied on by the Crown came from MK. She said that she was born in June 1981. She is the niece of KK who was the Appellant’s defacto wife at the time. The Appellant was her godfather. On a number of days during the September/October school holidays in 1995, MK was at the house in which KK and the Appellant resided. There would seem to have been no-one else at the house. (How MK came to be there was the subject of some conflict between MK and KK but there was nothing to suggest MK’s presence was due to any ulterior motives of the Appellant.) MK gave evidence that at a time when she was lying on the floor watching television the Appellant “laid down behind me and I could feel his stomach against my back and I could feel his penis between my bottom and he put his arm over me and was rubbing my stomach… under my clothing”. MK believed the Appellant’s penis was still in his pants. This conduct was the subject of the first count.

107 MK gave evidence that the Appellant then “lowered his hand and began fingering me… moving his fingers in and out of my vagina… pretty much the whole fingers, like it was going in deep (sic)”. This continued for a few minutes. MK felt frozen and stayed there silent until it sunk in and she told him that she felt sick, wanted to lie down and go to sleep, stood up, walked over to a lounge and lay down on it. This conduct was the subject of the second count. MK also said that the Appellant followed, lay on top of her and tried to molest her again but that she asked to be left alone and after a little time the Appellant desisted.

108 MK gave evidence that she was unable to remember what occurred after this apart from that she watched some television but eventually she returned to her grandparents’ house. She did not tell KK about what had occurred because she was scared the latter would not believe her. From her grandparents’ house MK called her mother JK and asked if she could return home. That occurred.

109 MK also gave evidence of incidents on 2 days shortly prior to that on which the offences were said to have occurred. She said that while she was with the Appellant, he had been overly affectionate, giving the complainant a lot of kisses on the lips and cheeks, patting her backside, lifting her shirt up and rubbing her stomach. This made her feel uncomfortable and she asked him to stop. On the following day he was again overly affectionate and when she went to get a drink, grabbed her arm, pulled her down onto his lap, wouldn’t let her up and was rubbing the top of her groin area. Again she asked him to stop.

110 On Tuesday or Wednesday before Saturday 14 October 1995, a date on which CJ, a daughter of KK was married, MK and JK had an argument because MK did not wish to go to school. In the course of the argument JK said to MK that there must be something more because MK enjoyed school and then MK told JK that the Appellant had touched her on the occasion to which I have referred. Shortly afterwards JK asked MK what she meant by “touch” and according to MK she told her mother everything in detail.

111 A couple of weeks later, MK received a $50 money order from the Appellant. She was not expecting it but had previously told the Appellant that she was saving for a $50.00 “wonder-pass”. MK gave the money order to her mother because she did not want it.

112 On 25 October 1995, officers of the Department of Family and Community Services interviewed the complainant. One of these, a Mr Sheehy, gave evidence that while he had little or no independent recollection of the conversation he had with her but notes had been taken at the time. Based on those notes Mr Sheehy said that MK had told him that the Appellant had promised that he would give her money if she allowed him to touch her, she objected but still he touched her, inside her clothing, on the breast, vagina and bottom. The witness could not recall any circumstances leading up to the touching. Asked whether MK had said the incident happened on one occasion or over a period, he said that he had the impression that it was a singular incident she was talking about.

113 JK’s recollection of hearing of her daughter’s complaint varied somewhat from that of MK. JK said that she had not been told the details of what had occurred. JK’s recollection was also that in the relevant period her daughter had visited the Appellant’s house only once. JK informed her parents of the complaint but it appears that a decision was made not to inform KK until after the wedding.

114 After the wedding her parents spoke to KK and her brother JPK. KK and JPK in turn confronted the Appellant. According to KK, there was conversation to the effect:-

I said: “I had a phone call from Mum and Dad. They wanted to tell me what you’ve done to (MK). You did it, didn’t you?

He said: “I don’t know why I did it. I’m sick. I may as well put myself, kill myself and put everyone out of their misery.”

I said: “I want you to ring up work and I want you to quit. I don’t want you near children again.”

He said “Okay.”

115 According to KK, the Appellant’s occupation at the time involved driving disabled children to school under some arrangement with the Education Department and the Appellant did in fact ring up and resign.

116 There was no challenge to the evidence just quoted although it was put to KK and JPK that the Appellant had said that he had touched MK on the breast. KK said she could not remember and JPK that he could not recall any such statement. KK acknowledged that there had been no discussion between her and the Appellant as to what “it”, in the conversation quoted, was.

117 The Crown also tendered, without objection, a transcript of evidence that a Dr Subhas, a consultant psychiatrist, had given in an earlier trial. In this transcript Dr Subhas is recorded as saying that the Appellant was referred to him by a general practitioner, Dr Galea on 17 October 1995 and that he first saw the Appellant on 25 October 1995. According to the doctor’s notes, the Appellant had told him that he was in trouble for molesting MK on one occasion 2 weeks earlier, that what had occurred was that they were mucking around while KK was at work and he went too far and touched her boobs, that she had stayed for a further 2 hours during which time they watched television, had tea and KK took her home. The Appellant also said that Family and Community Services were investigating, that he felt devastated by the event, was ashamed, disgusted and angry with himself and felt suicidal about it. The doctor said that he did not elicit details about the incident but that he saw the Appellant on 4 further occasions for the purposes of treating depression.

118 MK first told the police about the incident in November 2001. Apart from taking a statement from her at that time, nothing of consequence seems to have been done by the police until after the matter was transferred to another police station in March 2002. Statements of other persons to whom I have referred were obtained over ensuing months.

119 The Appellant did not give evidence in his first trial. His “defence” as apparent from cross-examination and his counsel’s closing address was that all that happened was as disclosed by him to Dr Subhas and, particularly in light of the inconsistencies apparent in the above, the complainant’s evidence should not be accepted.

120 In closing submissions, counsel for the Appellant acknowledged that, based on the Appellant’s admissions, at least to Dr Subhas, at the time, the Appellant did something but the Crown had to prove beyond reasonable doubt that he had committed the particular offences charged. He submitted that the complainant’s contemporaneous account to Mr Sheehy, an account which did not allege penetration, was more likely to be accurate than that given later, that the passage of time may well have affected the complainant’s memory, a fact evidenced by the difference between her mother’s evidence of not being told any detail and the complainant’s evidence that she had informed her mother of this.

121 It should also be noted that at the commencement of the trial, Judge Latham asked counsel whether there was an explanation for the delay between complaint and the commencement of proceedings. Counsel for the Applicant informed her Honour that in a previous trial (in which the jury seem to have disagreed), when the complainant was asked “Why has it taken you all these years before you went to the police?” she had said that it had been eating away for (sic) her for a number of years and she couldn’t get it off her mind. Counsel also informed her Honour that the first time the Appellant was confronted with the allegations by police was on 10 July 2002. A little later, in response to a question by her Honour whether he was going to “seek to rely on any delay between the events giving rise of the allegations and the matter coming to the attention of the police”, counsel replied:-

“I’m not going to be making any – try and make any headway of the fact that the matter wasn’t brought to the attention of the police until 2001/2002.”

122 Her Honour then adverted to “whether or not there would be a need for any direction in relation to any forensic disadvantage (to the Appellant) because sometimes if there is some significant delay between the events and the matter first coming to his attention, it may be a legitimate matter for the jury to be informed of the fact that the passage of time has prevented him from meeting the allegations” adding, “but this doesn’t seem to me to be one of those circumstances.” Counsel replied:-

“No, there wasn’t – it was brought to his attention… early on.”

Second Trial

123 The evidence in this trial was to the following effect. CJ, who had been born in June 1976 was the complainant. She said that soon after her mother and father separated, her mother commenced a de-facto relationship with the Appellant whom she regarded as a father. She said that when she was 12 or 13 years old in 1989 the Appellant invited her to help steer a vehicle he was then driving. She accepted, moved close to him, he put his arm around her back onto her left breast, holding and rubbing it for about 30 seconds. She did not tell anyone of the incident because she was scared of “breaking up the family, not being believed”. The incident so described was the subject of the first count.

124 The complainant’s evidence which was the subject of the second count was that on one night a couple of weeks to a month later the family, her mother and brothers were in their respective beds, the Appellant came into her bedroom, stood beside her bed, picked up her hand and placed it on his exposed penis. Her hand remained there for a couple of seconds, she rolled over and pulled her hand away. She did not tell KK of this incident because she was scared KK would not believe her.

125 The complainant’s evidence the subject of the third count was that some weeks later again after KK had left for work, and the complainant was getting ready for school, the Appellant who was still lying in bed asked her to give him a cuddle. She lay down beside him, he placed her hand on his penis and had her masturbate him till ejaculation. The complainant said that after this she unlocked the door – who had locked it was not disclosed. After washing her hands she continued to get ready for school and the Appellant left for work. She did not tell KK because she was scared of the consequences – of breaking up the family - and because she was embarrassed and did not want anyone to know. She was also too embarrassed to tell anyone at school.

126 A couple of weeks later, when again her mother had left for work, the Appellant forcibly took the complainant into his room and had her masturbate him again. While this was occurring he placed his finger in her vagina. Again the complainant went to school that day. She did not tell KK because she was too scared and embarrassed. This incident was the subject of the fourth and fifth counts.

127 According to the complainant, a similar incident occurred some time to a month thereafter, although she could not recall how she came to be in the Appellant’s bedroom. Again, and for similar reasons she did not tell KK. This incident was the subject of the sixth and seventh counts.

128 CJ’s evidence was that all of these incidents occurred over a 6 months period towards the end of year 7. She said that at the time of the second and third incidents a brother Darren and a cousin Shane were in the house, and that Darren was also there on the occasion of the last 2 incidents. Darren and Shane were 2 years older than the complainant.

129 Some time after these incidents – CJ said within 4 to 6 months, perhaps earlier – she, Darren and Shane, after some discussion at school, met their mother outside the house when the latter returned from work and gave her mother a letter she had written in which she had referred to the Appellant’s actions of going into her room, making her touch him, and of masturbating her and making her masturbate him. According to the complainant KK then stormed into the house where the Appellant was. It was common ground that within a couple of days the Appellant then left the house and lived away for 6 to 12 months, returning for some years until he left finally in 1995.

130 CJ also gave evidence that on or soon before the day she gave the letter to her mother she also told a girlfriend of the allegations. CJ gave evidence of having ceased contact with that girlfriend in 1994 or 1995 although in an earlier trial CJ had indicated this occurred in about 2000 or 2001. A police officer gave evidence of having been told by the girlfriend recently that she could not remember being told by CJ about the allegations.

131 CJ also gave evidence of receiving, via her mother, a letter from the Appellant which became an exhibit. In the letter the Appellant said, inter alia:-

“Dear [CJ],

I don’t know where to start but I do know I am sorry for every thing that has happened. Sometimes I wish I was dead because of the trouble I have caused this family… I thought maybe we could forget about everything and live a normal life but it is not to be… once again I am very sorry and I hope one day you can forgive me. It was all my fault. I am also very sorry to your mother I have caused her a lot of pain as well. “

132 In her statement to police the complainant had said that she had received the letter soon after the one she had given to her mother but, having re-read the letter and a reference in it to the person who became her husband, she said that she must have received it some time after June 1992.

133 CJ first drew the matter to the attention of the police in August 2002. Asked why she delayed, she said:-

“I never discussed the matter with anybody except my husband once. I always believed it was my fault, I was embarrassed about it, it was causing problems at home… I’ve got two young boys and our family life was suffering, my health was suffering and I just felt like I needed some closure… I needed to talk about it more, I needed to get some counselling for myself… I just stopped feeling like it was my fault, that I’d done something wrong.”

134 Darren gave evidence corroborating the giving of the letter to KK and of her storming into the house. He looked at the letter but the only part of it he could remember was it saying, “(WSP)’s been coming into my room”. He also spoke of the complainant, at the time of the events, being troubled and more aggressive in horseplay in which they used to participate.

135 Shane did not give evidence.

136 KK gave evidence of being met by the 3 children when she arrived home one day and of being given a letter. Her recollection of it was that it said things like, “WSP has been coming in my room making me do things that I don’t want to do. I don’t know how to make it stop.” KK said that that was the most vivid thing that is embedded in her memory.

137 She said that she stormed into the house and said to the Appellant, “[CJ]’s just given me this letter telling me things that you have been doing. What do you have to say? Why did you do it?” and that he replied, “I don’t know why I did it. I’m sick. I need help. I may as well be dead, put everyone out of their misery.” She said that to the best of her recollection she gave the Appellant the letter but cannot remember what happened to it thereafter. She denied that the Appellant’s response was to the effect “That’s bullshit”.

138 KK also gave evidence of CJ’s behaviour changing dramatically, that she was truanting, smoking and her grades were down. In evidence in chief, KK said that this commenced in late 1989, although in cross-examination KK gave or agreed that she had given, a variety of other times for this. Those times included just after 10 January 1989, after KK had an accident on 14 March 1989, and after June 1989. She said that before the trial she had gone back to look at school records and these indicated that it was in late 1989 that CJ’s behaviour had become erratic.

139 In cross-examination she also gave evidence that prior to 1989 there had been arguments between her and the Appellant after which they would break up for a time and then get back together. She agreed that there were letters written by the Appellant after these break-ups, apologising for what he had done.

140 The Crown also tendered a second transcript of evidence Dr Subhas had given in an earlier trial. In this transcript Dr Subhas was recorded as saying that the Appellant had told him in 1995 that he was in trouble for molesting CK and that 6 years earlier he had promised KK that he wouldn’t do it again and had been depressed for 6 years. There was no suggestion in this transcript that the Appellant had done it again. Dr Subhas saw the Appellant on 5 occasions in all, treating him for depression.

141 On behalf of the Appellant the complainant was cross-examined to suggest that the offences had not occurred and that she had made up her allegations to deflect attention from poor performance at school. She denied this but acknowledged that towards the end of the year 7 she had been disruptive at school, truanting and smoking. She attributed this conduct to the Appellant’s assaults.

142 In this trial the Appellant gave evidence denying the offences and saying that there had been two occasions when CJ had initiated inappropriate touching of him. He agreed that KK had shown him a letter. She was screaming at the time and virtually all he read of it was a statement along the lines, “Mum I need to tell you some things that have been happening between (WSP) and I that I haven’t liked.” He responded, “That’s bullshit”, threw the letter down and stormed out of the house as was his custom when arguments occurred. He said that later, after he returned, he looked for the letter but could not find it. He acknowledged that within days he moved out of the house for some months

143 The Appellant said that the letter to CJ, part of which I have quoted above, was inspired by “all the fights and arguments and all the misery that I’d caused and KK had caused to the children over the years”.

144 The Appellant also maintained that on 2 occasions CJ had made inappropriate contact with his penis, asking on one occasion for alcohol and cigarettes for her party and on the second occasion for boots. He told her to go away. He said that he had told his daughter, some 6 years older than CJ, of these incidents soon after the second one occurred but, not wanting to cause problems, had not told KK until a long time afterwards. The Appellant’s daughter gave evidence of having been so told.

145 The Appellant agreed that he had been to see Dr Subhas. The Appellant denied using the word “molesting” and maintained that he said there’d been allegations and trouble and arguments. He agreed that he might have said that he had promised KK he would not do it again but this statement concerned something else.

146 Unsurprisingly, the Appellant was cross-examined at some length. It is not necessary that I detail any of that cross-examination but, at least so far as the printed page reveals, the Appellant’s evidence was not impressive.

Extension of Time and Rule 4 – First Trial

147 In my view the Court should not grant an extension of time for the lodging of the Notices of Appeal and Application for Leave to Appeal in the case of this trial and the Court should also not grant leave under Rule 4 to rely on the Grounds advanced. A number of factors lead me to these conclusions. Some I deal with when considering the grounds themselves but others include the following.

148 Firstly, while all of the reasons advanced for the delay inspire some latitude on the part of the Court, neither singly nor in totality do they justify the extent of the delay which has occurred. In that regard, I draw attention particularly to the absence of any explanation for the delay from June to August 2004 and, having regard to the delay which had occurred between October 2003 and October 2004, I do not regard it as a legitimate reason for a further delay of months that counsel only worked on the brief “when opportunity arose”. Of course, I do not suggest that this delay, unaccompanied by any disadvantages or prejudice flowing from it, would of itself justify a refusal of an extension of time.

149 Secondly, the nature of the orders which would flow from allowing the appeal, argues against exercise of the Court’s indulgence. Those orders would in the ordinary course result in a retrial, now over 10 years after the events the subject of the charges and while the weight of this is somewhat attenuated by the fact that the first trial the subject of appeal occurred 8 years after those events, the additional delay does tend to exacerbate the problems delay causes.

150 A third factor is the nature of the charges involving MK. There can be no doubt that sexual offences and memory of them impose substantial emotional pressures on victims - pressures which trials are likely to exacerbate - and while I do not make the assumptions that MK is a victim and the Appellant is guilty, the jury’s verdict makes it clear that there is a reasonable possibility that he is. Furthermore, MK’s explanation given in an earlier trial for why she complained when she did – evidence which the Appellant’s counsel preferred the jury in the trial under appeal not hear – provides ground for thinking that she has experienced such pressures. While I have no difficulty in accepting that such pressures, exacerbated by the trial process, are necessary if trials of sexual offences are to occur, any unnecessary continuation of such pressures argues against those who cause such continuation.

There was a miscarriage of justice as a result of the learned trial Judge’s failure to give a Longman warning.

151 The rationale advanced by the majority of the Court in Longman v R (1989) 168 CLR 79 at 91 for the warning which bears the name of that case was the loss of the means of testing the complainant’s allegations flowing from the delay which had occurred. Although, of course, his or her view will not be conclusive, not uncommonly an accused’s counsel will be in the best situation to decide whether in the particular case there has been any or any significant loss of that nature. Here, when the trial judge raised the possibility the experienced counsel who appeared for the Appellant said there wasn’t.

152 It was common ground that not long after the events the subject of the charges involving MK were said to have occurred, she made some complaint and the fact of some complaint from her was brought to the Appellant’s attention. In this situation it does not seem to me that the Court should presume, contrary to the view of the Appellant’s trial counsel, that prejudice had occurred in consequence of the delay. In this connection it was common ground also that the Appellant had been to see Dr Subhas very shortly thereafter and undisputed that he had followed KK’s demand that he quit working with children. The Appellant’s situation was thus far distant from those where persons have been first accused years after a suggested offence and may have had no occasion to reflect on events close to the time or meanwhile.

153 In this Court it was suggested that the delay meant the loss of the opportunity of cross-examining KK and JPK on the precise terms of the conversations in which the Appellant was alleged to have admitted misconduct with MK and from adequately testing inconsistencies between the complainant’s evidence in the trial and evidence of complaint.

154 So far as the first of these is concerned, for all the Court knows trial counsel may have had instructions more damaging than the evidence of KK and JPK and which would have led him not to wish to cross-examine KK and JPK as suggested. As I have pointed out above, there was no challenge to the evidence I have quoted. And in light of the evidence which was given, I am not persuaded, contrary to trial counsel’s view, that there was any prejudice so far as the topic of testing the complainant’s evidence is concerned.

155 In concluding as I have, I do not ignore the fact that the Appellant’s case did not involve any concession that the matters brought to his attention at the time were identical or substantially the same as those the subject of the charges. This may go to the weight to be attributed to counsel’s concession but in the circumstances of the case it provides no ground for the trial judge or this Court to conclude that counsel was wrong.

156 Whether there has been prejudice is a question of fact. No doubt forensic and judicial experience shows that delay will commonly create such prejudice and is at least calculated to do so. However legal fictions are no longer fashionable and it does not seem to me that in all cases of delay which does, or may be thought to, come within the imprecise expression “substantial”, there is an irrebuttable presumption of fact that prejudice has occurred. Remarks made, generally in the context of different factual situations, do not persuade me that the law has reverted to that state.

157 Undoubtedly there are statements, to a number of which counsel for the Appellant referred, e.g. Sully J in R v BWT (2002) 54 NSWLR 241 at 272-3 and Howie J in DBG (2002) 133 A Crim R 235 at [33] (but c.f. [32]) to the effect that wherever there is significant or substantial delay, a Longman direction is required. However those statements must be seen in context and in light of the rationale in Longman v R. That is that delay in that case caused prejudice and because of the prejudice a warning was required. Because prejudice to an accused is commonly to be inferred from such delay, and has been in many cases, often in remarks of the topic the intermediate step has been assumed rather than stated and the law expressed in terms that a Longman warning must be given whenever there is delay.

158 In circumstances where no Longman warning was sought and I am not persuaded that prejudice, i.e. the rationale for the warning existed, I see no error in the absence of a Longman warning in the first trial.

The learned trial judge erred by failing to direct the jury about the limited use they could make of evidence of prior sexual misconduct not the subject of the charges.

159 What her Honour said in the course of her summing-up concerning this evidence was as follows:-

“The second element is that the sexual intercourse must have occurred without the consent of the complainant. That is, it must have occurred without (MK)’s consent. The Crown says you would accept (MK)’s evidence that she did not consent to any inappropriate touching by the accused and indeed she had told him so on the previous two occasions when he had lifted her shirt and rubbed her lower stomach. The Crown says that it is clear from the circumstances of the relationship between (MK) and the accused that she was not consenting to any such activity. She was a fourteen year old girl who regarded the accused as the closest thing she had to a father. In any event, if you were to accept (MK)’s evidence it is clear that she was not informed that the accused was about to insert his finger into her vagina, so in those circumstances it could hardly be said that she was able to give voluntary and full consent.

Now let me just come to the third element. The sexual intercourse must be only without the consent of the complainant, but the accused must know that the complainant was not consenting. Again the Crown relies upon the fact that the accused was told on a previous occasion that (MK) did not want him to touch her in the lower abdomen area. She had indicated to him she found that uncomfortable. The Crown case is that the accused must have known in those circumstances that she was not consenting.”

160 Her Honour said nothing else on the topic of the use to which the jury could put the evidence of events on the few days prior to that, the subject of the charge.

161 Later in the course of responding to a question from the jury, “We would like clarification of the legal issues of consent for charge 2”, her Honour again referred to this evidence in the following terms:-

“… What is being said by the Crown and indeed I understood her to refer to this in the course of her address, he knew she was not consenting because according to the Crown case she had indicated to him on earlier occasions that she did not like inappropriate touching on the stomach – on the lower stomach…”

162 Counsel’s complaint in this Court is that her Honour did not tell the jury that they were not to use it as tendency or propensity evidence and not to substitute it for evidence of the events the subject of the charges. He submitted that, without such directions, the jury might have used the evidence for these inappropriate purposes.

163 It may be accepted that the complainant’s evidence as to the Appellant having acted indecently towards her on two occasions prior to the conduct the subject of the first count was, in its nature, prejudicial to the Appellant. However, it was quite brief and the conduct referred to much less serious than that the subject of the charges – conduct which her Honour identified clearly for the jury. In these circumstances it strikes me as fanciful to suggest that the jury might have substituted the earlier conduct for that charged. Furthermore, the brevity of the evidence, together with its lack of seriousness relative to the conduct charged, also persuades me that there was no realistic possibility that it would have been used for tendency purposes.

164 It is a legitimate inference from trial counsel’s omission to ask for any redirection or further direction on the topic that the approach I have taken was how the matter appeared in the course of the trial. I see no substance in this ground.

The learned trial judge erred by failing to caution the jury about the dangers of acting upon the admissions that the Appellant made to KK and JK.

165 What her Honour said relative to this ground was:-

“And the Crown points to the evidence given by the complainant’s aunt and the complainant’s aunt’s brother. You will recall that they both gave evidence of having confronted the accused with allegations of sexual impropriety by the accused towards MK and on the evidence of both of those witnesses the accused responded with words to their effect, “I’m sick. I can’t help myself. I need help” and I think there was also some reference to “I should kill myself and put everyone out of their misery” or words to that effect…

Now the Crown’s argument is, in relation to those statements made by the accused, that that response is not the response of a person who has done no more than accidentally touch MK’s breasts in the course of innocent horse play. That is the response of someone who knows that he has sexually assaulted MK in a quite serious way and the Crown says that you would therefore use that evidence in order to comfortably reach the conclusion that MK was telling the truth then, and she is telling the truth now.”

166 The complaint is that, the terms of the admissions said to have been made to KK and JK being vague, her Honour should have pointed out to the jury the dangers of acting upon it and told the jury that it would be dangerous to convict upon it.

167 What the submission ignores is that earlier Her Honour had said to the jury:-

“Now let me just return to the subject of the complainant’s evidence, MK. Again it will not surprise you to hear that MK is a witness who is essential to proof of the Crown case. She is essential to proof of both of the charges in this trial… So at the end of the day… MK’s evidence, particularly her acceptance by you as a witness of truth and a reliable witness, is essential to proof of the charges against the accused.”

168 In the circumstances I see no reasonable possibility that the jury would have convicted upon the basis of the evidence the subject of this ground or used it except in accordance with the directions her Honour gave.

169 Many of the factors which argued against the Appellant being given an extension of time and leave under Rule 4 in respect of what I have referred to as the first trial apply with equal force to the second. There is also particular evidence from the complainant who, asked why she had waited until August 2002 to report the matter to the police, said that she wanted closure of the matter because it had been affecting her health and the life of her own family and children. Again, if the appeal is upheld upon the basis of the grounds advanced, the normal order would be for a re-trial, postponing the closure the complainant desires.

170 On the other hand, as is evidenced by the fact that in this trial her Honour did give a warning along a number of the lines required by Longman v R, delay in this case was longer and far more significant than it was in the case of the first trial and the unjustified delay which has occurred since trial is a much smaller proportion of the delay since 1989 when the offences were said to have occurred.

171 Furthermore, the trial clearly raised a number of matters which were likely to have been far more readily the subject of checking had complaint been made at, or not long after, the time of the alleged offending. One of these is the time at which the complainant’s problems at school commenced. There was a live issue as to whether these problems were later and, by inference, a consequence of the conduct alleged, or earlier, and the allegations advanced by the complainant as an excuse for her conduct. Another matter not unlikely to have been the subject of exploration had the trial occurred within a reasonable time of the suggested offending was Darren and Shane’s knowledge of any locking or absence of locking of the Appellant’s door, with the Appellant and complainant behind it, in the mornings. According to the complainant they were home at the time.

172 On the other hand defence counsel at the trial was invited by her Honour to identify any specific forensic problems occasioned by delay that he wanted to rely on. Counsel first said that he could not think of any. On the following day, just before she summed up, her Honour directed attention to the Appellant’s inability, due to delay, to cast his mind back and determine where he was and then counsel indicated that he could think of nothing beyond that.

173 There is also the fact that the jury were not prepared to accept CJ to the requisite standard in respect of counts 1, 2 and 3. That is possibly explicable in the case of count 1 upon the basis that the jury might have not been persuaded that the touching the subject of the charge was intentional or motivated by indecency but their failure to accept the complainant on counts 2 and 3 cannot be explained that way. Count 2, it also must be remembered, was the closest in type to that KK and the complainant’s brother remembered as having been the subject of remark in CJ’s letter of complaint. Count 3 raised virtually identical considerations as did counts 4 and 6 (albeit unaccompanied by the vaginal penetration which was the subject of counts 5 and 7 and which was said to have occurred at the same time).

174 Not all of these factors operate in the same direction but when regard is had to the relevant factors, it seems to me that in the case of this trial the necessary extension of time, and leave, should be granted and the appeal against the verdict in the second trial decided on its merits.

The Longman warning given by the learned trial judge was inadequate and resulted in a miscarriage of justice.

175 What her Honour said relevant to this ground of appeal was:-

“Let me just say something about the proof of the charges in this trial, depending, as they do, for proof upon the evidence of the complainant, CJ.

In those circumstances it is most important that I give you these warnings.

It is most important that you appreciate fully the effects of the delay – that is that delay between 1989 and 2002 – on the ability of the accused to defend himself by testing prosecution evidence or by adducing evidence in his own case to establish a reasonable doubt about his guilt.

In that regard, let me just remind you that the evidence from the accused’s daughter was that, to her recollection, she had a conversation with the accused, she thought, in 1989, although it could have been in 1990, wherein the accused said something to the effect of “CJ’s been doing things that she oughtn’t to have been doing” in the context of some query about whether or not CJ’s behaviour at school had been noted by his daughter.

Much was made of the fact that that evidence did not come forward in the previous trial, and you have heard the Crown submissions in relation to that and I am not going to repeat them, but clearly, the accused’s daughter’s capacity to accurately recollect the terms of that conversation has been affected by the passage of time.

Also it would strike you, as a matter of common sense, that these events were alleged to have taken place in the early morning in the course of 1989 after KK had gone to work but before the accused had gone to work and before CJ had gone to school, and in that sense, they were part of the family’s daily routine.

As Mr Buckman has made clear to you, it is obvious that, with the passage of time, the accused is not in a position to cast his mind back or to consult records or to come up with any evidence of where he might have been on any of those occasions, in a way which might have allowed him to call evidence to cast doubt on the Crown case. It is that particular feature of the delay – between 1989 and 2002 – which you must take into account when you come to consider the evidence of CJ, and when you come to determine, whether or not, you can rely upon her evidence as a witness of truth.

In other words, you could only convict the accused if you were satisfied beyond reasonable doubt of the truth and reliability of the complainant’s evidence, with respect to each of the seven charges in the indictment, and only after taking into account the fact that the passage of time, since these events, has directed affected the ability of some of the Crown witnesses to accurately recall the chronology and the surrounding circumstances of these events, and you will recall, of course, KK – her memory is equally affected by the passage of time – as was, I would have thought, the complainant’s brother who came to give evidence as well.”

176 The decision of the High Court in Longman v R (1989) 168 CLR 79 has been the subject of much explanation, interpretation and other discussion, not all of it consistent, since. As the evidence in this case does not require me to add to that discussion more than I have done when considering the first trial, I shall not. The Appellant sought to rely on remarks of Sully J setting out his understanding of what Longman v R and High Court cases following it require. In R v BWT (2002) 54 NSWLR 241 at 272 - 3 his Honour’s remarks include:-

.

(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 …

(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.”

first

secondly

thirdly

fourthly

fifthly

sixthly

… The form of the warning must be such as bears unmistakably the imprint of the court’s own authority. It must be made clear that the foundation of that authoritative warning of the court itself is the accumulated experience of the courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences.”

177 On behalf of the Appellant it was submitted that although her Honour used the word “warnings” the words that followed possessed more the characteristics of a “comment” or “caution”; that her Honour’s remarks did not comply with the propositions Sully J had introduced by the terms “first”, “fourthly” and “sixthly”; and such warning as was given was not so framed as to bear the imprint of the courts’ authority and collective wisdom in adjudicating sexual cased involving great delay.

178 Counsel appearing for the Crown, while not disputing that the terms of the summing–up did not reflect the precise words of Sully J drew attention to passages which at least raise many of the considerations to which Sully J adverted and also placed reliance on remarks of Howie J in DRG (2002) 133 A Crim R 227 at [28] et seq. At [28] after referring to a number of authorities, his Honour remarked:-

“…I do not believe that they reveal that a rule of practice or of law existed at the time of this trial requiring that the jury be directed that it would be dangerous to convict on the evidence of the complainant whenever such delay had occurred.”

179 It is unnecessary for the purposes of this appeal to attempt to reconcile any inconsistency between the remarks of Sully and Howie JJ, although it might be noted that Howie J’s words, “whenever such delay occurred” may well be thought to account for any difference. Whereas the delay in Longman and some of the other cases to which Sully J referred was of the order of 20 years, the delay in DRG was only a little over 4 years, and Howie’s J’s remarks have to be seen in that context.

180 As is apparent from what I have said, in this case the delay between the suggested offending and the first raising of the topic of misconduct with the Appellant was of the order of 6 months and the delay almost 13 years before complaint was raised with him by the police. Furthermore, the direct evidence other than from the complainant of what was contained in her letter and what was raised with the Appellant at the time he was shown that letter was vague and, by comparison with the charges, very limited.

181 That fact, the extent of the delay until the police raised the matter with the Appellant, and the absence of any significant corroboration which the jury must have accepted, leads me to the view that in the circumstances of this case the jury should have been instructed in the form of words used by the High Court in Longman, viz. “that it would be dangerous to convict … “.

182 I also find it unnecessary for the purposes of this appeal to consider whether the remarks of Sully J that I have quoted go further, at least in emphasis, than the remarks of the majority of the High Court which appear in the above quotation from his Honour’s judgment. For I am satisfied that the summing-up does not reflect the strength of the warning which the majority of the High Court said should be given. Thus I do not see reflected in the summing up the strength inherent in the combination of the words, “scrutinising”, “with great care”, “considering the circumstances relevant to its evaluation and paying heed to the warning”.

183 Furthermore, the use by the majority of the term “warning” and a reference earlier in their reasons to a decision of R v Spencer (1987) 1 AC 128 at 141 does suggest that Sully J was correct in the last paragraph I have quoted from his Honour’s reasons. In this respect also, and despite her Honour having used the term “warnings” once, the summing-up lacks the strength of the warning required. This ground is made out.

184 Since writing the above, I have had the opportunity of reading the reasons for judgment of the Chief Justice who has formed a different view and concluded that the summing up was sufficient to comply with the requirements of Longman. His Honour’s remarks have compelled me to re-examine what I have written but have not led me to change my view. Nothing is to be gained by my further examining, phrase by phrase, the words her Honour used.

185 I venture to suggest that the difference between the Chief Justice and myself lies in impression, firstly of the strength of the warning that Longman requires and, secondly, of the strength of what the trial judge in this case actually said. Such a situation can hardly be regarded as satisfactory but it is liable to arise whenever, in those cases where a Longman warning is required, trial judges choose to depart from the words used in Longman itself. There clearly are persuasive reasons for following the words used in that case, at least in the absence of factors that make that wording inappropriate.

186 Relying on s6(1) of the Criminal Appeal Act, the Crown submitted that, even if the Appellant’s ground of appeal was upheld, the Court should find that there was no substantial miscarriage of justice and the appeal should be dismissed.

187 I do not agree. While there was a deal of evidence independent of the complainant which tended to confirm that he had molested her or that there had been some misconduct on the part of the Appellant towards her, that evidence said virtually nothing whether that misconduct was of the nature charged in the counts of which he was convicted. Thus if the letter the complainant wrote made the allegations the subject of counts 3 to 7, as the complainant said it did, it is at least surprising that her mother did not remember the fact. After all, they were significantly more serious that the touching which was the subject of count 2.

188 Furthermore, the jury’s failure or inability to convict that Appellant on counts 1 to 3 suggests that they must have had reservations concerning the complainant’s reliability or credibility. In that situation, it cannot be said that the absence of the warning was of little or no consequence.

189 Accordingly I am of the opinion that the appeal against the convictions in the second trial should succeed. In that situation it is unnecessary to consider the fifth ground of appeal, viz. that her Honour misapplied the principle of totality.

190 The orders I propose are:-

(i) that the Application for an extension of time to appeal against the Appellant’s convictions on 13 August 2003 be granted.

(ii) that the Appellant have leave under Rule 4 of the Criminal Appeal Rules to argue the Fourth Ground of Appeal;

(iii) that the appeal against the Appellant’s convictions on 13 August 2003 be granted.

(iv) that a new trial of the charges the subject of those convictions be had.

(v) that the Court refuse the Application for an extension of time to appeal against his convictions on 8 August 2003 and for leave to appeal and to appeal against the sentence(s) imposed on him in respect of those convictions

(vi) that the Court refuse leave under Rule 4 of the Criminal Appeal Rules to argue the First to Third Grounds of Appeal.

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Citations

R v WSP [2005] NSWCCA 427

Most Recent Citation

R v MBX [2013] QCA 214

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15

Groundstroem v R [2013] NSWCCA 237

TJ v The Queen [2009] NSWCCA 257

Perez v Regina [2008] NSWCCA 46

Cases Cited

16

Statutory Material Cited

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Ryan v The Queen [2000] HCA 60

Doggett v the Queen [2001] HCA 46

R v BWT [2002] NSWCCA 60

CITATION:	R v WSP [2005] NSWCCA 427
HEARING DATE(S):	31 October 2005
JUDGMENT DATE:	14 December 2005
JUDGMENT OF:	Spigelman CJ at 1; Sully J at 71; Hulme J at 94
DECISION:	See paragraph 190

PARTIES:	Regina WSP
FILE NUMBER(S):	CCA 2005/1096
COUNSEL:	Crown: N Norman Appellant: P Boulton SC
SOLICITORS:	Crown: K Owens Appellant: Mark Klees & Associates

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/3476 02/21/3466
LOWER COURT JUDICIAL OFFICER:	Latham DCJ