RBK v The Queen - [2004] WASCA 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: RBK -v- THE QUEEN [2004] WASCA 216

CORAM: MALCOLM CJ
MURRAY J
WHEELER J

HEARD: 3 MAY 2004

DELIVERED : 29 SEPTEMBER 2004

FILE NO/S: CCA 184 of 2003

BETWEEN: RBK
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :YEATS DCJ
File Number            :  IND 1654 of 2002

Catchwords:

Criminal law and procedure - Sexual offences - Delay in complaining until two years after alleged offences - Complainant aged seven or eight - Whether Longman direction required - Ruling that direction not required - No corroboration - No specificity in respect of dates and times of offences - Whether Judge erred in refusal of leave to crossexamine complainant's mother as to prior offences committed against the complainant - Direction required in case of delay in making complaint - Direction required in respect of allegation that complainant had a motive to falsely accuse appellant - Whether there was a miscarriage of justice

Legislation:

Criminal Code (WA), s 329(4) and s 329(10)(a)

Evidence Act 1906 (WA), s 36BC, s 36BD and s 50

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T N Cullity
Respondent: Mr D Dempster

Solicitors:

Appellant: Jack Flanigan
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Christophers v R [2000] WASCA 308; (2000) 23 WAR 106
Cook v R [2000] WASCA 78; (2000) 22 WAR 67
Crampton v R (2001) 206 CLR 161
Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169
Crofts v R (1996) 186 CLR 427
Doggett v R (2001) 208 CLR 343
Kailis v R [1999] WASCA 29; (1999) 21 WAR 100
Latham v R [2000] WASCA 57
Liberato v R (1985) 159 CLR 507
Longman v R (1989) 168 CLR 79
MWR v R [2003] WASCA 236
Palmer v R (1998) 193 CLR 1
Tanner v R [2001] WASCA 60

Case(s) also cited:

Allegretta v R [2003] WASCA 17
Christophers v R [2003] WASCA 214
James v R [2000] WASCA 100

MALCOLM CJ: This is an appeal against conviction. On 24 October 2003, the appellant was convicted in the District Court at Perth on two counts being counts 1 and 2 on an indictment which charged a total of six counts. The first was one of indecently dealing with B, a de facto child under the age of 16 years by touching her in the genital area. The second was indecently dealing with B in the same manner. Both counts alleged offences against s 329(4) of the Criminal Code.
In the end result, the appellant was found guilty of counts 1 and 2 on the indictment, but the jury were unable to agree on a verdict in respect of counts 3, 4, 5 and 6. The jury were then discharged. The two offences of which the appellant was convicted were alleged to have been committed on the same day, being a date unknown between 1 January and 30 June 1999.
The ground of appeal as originally formulated was that:
"The Honourable Trial Judge erred in refusing to grant leave to defence counsel to cross‑examine the complainant's mother in respect to a previous and unrelated sexual event involving the complainant [p]ursuant to Section 36BC of the Evidence Act.
As a result the convictions are unsafe or unsatisfactory:
PARTICULARS
(a)The questions sought to be adduced [h]ad substantial relevance to the facts in issue as touching upon the credibility of the complainant.
(b)The probative value of the evidence sought outweighed any distress humiliation or embarrassment the complainant might suffer."
By his notice of appeal dated 14 November 2003, the appellant sought an order that the convictions be set aside and that there be a new trial.
By an application dated 27 January 2004, the appellant sought leave to include the following four additional grounds of appeal:
"1.When directing the jury correctly that there was no need for the evidence of the Prosecutrix to be corroborated the learned Trial Judge should have told the jury that because the evidence was uncorroborated they needed to scrutinise it with great care and to exercise particular caution before convicting the Appellant on the basis of it alone. Factors which justified such a warning in the circumstances of the case were the age of the Prosecutrix at the time of the offences; the non‑violent nature of the offences; and the absence of timely complaint either to the Appellant or to some person in authority.
2.When directing the jury about absence of timely complaint as required by s36BD of the Evidence Act the learned Trial Judge should have pointed out specifically to the jury the possible significance of lack of timely complaint on the consistency of the evidence of the Prosecutrix and therefore upon her credit rather than merely referring to her explanations for failure to complain in evidence as a matter to consider when judging her credit.
3.In commenting upon a possible motive to bring false charges against the appellant on the part of the Prosecutrix and her mother raised by the Defence, the learned Trial Judge should have directed the jury that even if the jury positively rejected such a motive that this would not mean that they could more readily accept that the evidence of the Prosecutrix was true. And further, when directly the jury about a possible failure by them to positively believe the Appellant's denial it was suggested by the learned Trial Judge that an issue could not be found against him if his evidence gave rise to a reasonable doubt. The total effect of the direction in these respects was to suggest that the Appellant bore an onus which was likely to have derogated from the earlier correct exposition of the principles of onus and standard of proof contained in the summing up.
4.That the matters of complaint raised in the previous Grounds of Appeal taken individually or in combination suggest that the convictions on the abovementioned counts were unsafe and unsatisfactory and should be set aside."
The appellant was originally charged with a total of six counts of indecent dealing with B contrary to s 329(4) of the Criminal Code when read with s 329(10)(a). Section 329(4) provides that:
"A person who indecently deals with a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime and is liable to the punishment in subsection (10)."
Section 329(10)(a) provides that a person who is guilty of a crime under subsection 329(4) is liable to imprisonment for 10 years where the child is under the age of 16 years.

Original Ground: Refusal of Leave to Cross‑Examine on Previous and Unrelated Sexual Event

Section 36BC of the Evidence Act1906 (WA) provides that:
"36BC. Sexual experience of complainant, evidence of
(1)In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of a defendant unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2)The court shall not grant leave under subsection (1) unless satisfied that -
(a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission."
It was contended on behalf of the appellant that the learned trial Judge should have granted counsel for the appellant at the trial leave to cross‑examine the complainant's mother pursuant to s 36BC in respect of a previous and unrelated sexual act involving the complainant. Consequently, so it was contended, the convictions were unsatisfactory because those questions had substantial relevance to the facts in issue as touching on the credibility of the complainant and the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer.
On 26 February 2003, the complainant's evidence was taken by way of a video link from a remote room. The trial itself commenced on 23 October 2003 before Yeats DCJ and a jury. After the jury had been empanelled, counsel for the appellant sought a direction from the trial Judge regarding questions he wished to put to the complainant's mother regarding the fact that the complainant had been the victim of indecent dealing by one Cook and had given evidence against him.
Yeats DCJ queried the relevance of such evidence. Counsel for the appellant submitted that the fact that the complainant had previously been a victim and had received counselling for the trauma she had suffered would have made it more likely that she would know that a complaint should be made.
Counsel for the prosecution opposed the application in the context of s 36BC(1) of the Evidence Act which prohibits a defendant from eliciting evidence "relating to the sexual experience of the complainant, being sexual experiences of any kind", without the leave of the Court. Section 36BC(2) provides that leave shall not be granted unless the evidence has substantial relevance to the facts in issue, and the probative value of the evidence outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its commission.
Counsel for the prosecution also submitted that defence counsel should not be permitted to obtain the evidence from the complainant's mother, having failed to raise the matter with the complainant. The circumstances in the earlier case (namely, Cook v R [2000] WASCA 78; (2000) 22 WAR 67) were said to have been very different, involving offences committed by a 58‑year‑old man who was acting as the complainant's babysitter at the time and who had no father figure relationship with the complainant.
In Cook v R (supra) Cook had been tried and found guilty in the District Court on seven counts of sexual offences involving B and another complainant S. Four of the counts on the indictment in that case involved S and three involved B. The offences against S were alleged to have been committed on four separate occasions between 1 September 1992 and 3 January 1998. The offences against B were alleged to have been committed on three separate occasions between 1 January 1994 and 31 December 1995. Evidence was led from both S and B of incidents of sexual misconduct in addition to that which was the subject of the counts on the indictment. Both complainants were born in 1989.
The context in which the offences had been alleged to have been committed was that S and B were being cared for by Cook's wife at her home. Mrs Cook was a paid child carer, who looked after several children at any one time while their parents were working. While Cook was employed, he was often at home when the children were there. Five of the offences charged fell into this category. The opportunity to commit two of the other offences, involving S, arose out of the friendship between Cook and the natural father of S. Cook was convicted of six of the seven counts on the indictment in that case. The charges of which he was convicted included acts of penetration of the vagina of each of the girls with his finger and his penis.
It was not clear with what forensic purpose counsel for the appellant in the present case wished to cross‑examine the complainant or her mother, regarding the sexual assaults committed on her by Cook. In Cook v R (supra) complaints were first made by both complainants to the mother of S and to the appellant's son D on 3 January 1998. The complaints were not made until two years after the last date on which it was an alleged that an offence had been committed on B. In the case of S, the offences were allegedly committed as late as 3 January 1998, but the course of conduct was alleged to have commenced as early as September 1992. It was not suggested at the trial that the last offence charged was a recent offence.
Counsel for the appellant frankly conceded that there were problems with the original ground of appeal. In my opinion, there was no substance in the contention that because the complainant was undergoing counselling in respect of the earlier offences at the time the current offences were alleged to have been committed would support the view that "perhaps it [sic she] would be more likely to complain". Not surprisingly, leave to cross‑examine B to elicit that evidence was refused.
Secondly, it was suggested that the counselling would have made the complainant realise that what was happening to her was wrong so that she would have at least said to the appellant, "This is wrong. Stop it" or, "Don't do that", but no evidence of that kind was given by the complainant.
Thirdly, it was submitted that given the marriage between the complainant's mother and the appellant in 1997 and that the first allegations of sexual offending by Cook were made known in 1998, the appellant would have known that at the very time in early 1999 he was alleged to have committed the offences, the subject of the present appeal, the complainant was undergoing counselling for the earlier sexual offences.
In the circumstances, it would have been open to trial counsel to apply to have the complainant recalled to deal with the additional evidence, but no such application was made. Ground 1 was not pressed by counsel for the appellant, but he indicated that he did not wish to formally abandon it. Counsel pointed out that an application was made by counsel for the defence at the trial for leave to cross‑examine the complainant's mother about the fact that the complainant was allegedly under counselling for the offences committed on her by Cook at the time that the present offences were alleged to have been committed in 1999.
For these reasons, I am of the opinion that there is no substance in the original ground of appeal.

Ground 1: Whether "Longman" direction required

Following the conclusion of the evidence on 24 October 2003, there was a discussion between both counsel and the trial Judge on the question whether, in the circumstances of the case, a "Longman direction" should be given to the jury, namely, a warning required by the circumstances of the particular case by way of a comment on the issue of credibility required by s 50 of the Evidence Act 1906 (WA), which was originally s 36BE of the Act, but subsequently replaced by s 50. Section 50, which is applicable to all indictable offences, provides that:
"50. Corroboration warnings not generally required
(1)In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2)On the trial of a person on indictment for an offence -
(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."
The issue raised by ground 1 is whether a corroboration warning was required and, if so, in what terms.
In Longman v R (1989) 168 CLR 79 at 86 – 87, it was made clear by Brennan, Dawson and Toohey JJ that the warning to which s 50 is directed is that it is generally unsafe to convict an accused of any sexual offence on the uncorroborated evidence of the alleged victim, or on the uncorroborated evidence of the victim of the particular offence charged, because evidence of that kind has been shown by experience to be especially liable to fabrication. The section does not affect the requirement to warn about other perceptible risks of miscarriage of justice. It was also made clear that a warning may be required because of the circumstances of the case, other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence was intended to prove. On this basis, s 50(2)(a) left that situation unaffected. Their Honours went on to say at pp 87 – 88:
"Furthermore, what par.(a) abolishes is the requirement to give a warning, not a judge's discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par.(a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par.(a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only. Perhaps it should be added that the judge's discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which par.(a) eliminates.
Paragraph (b) is a unique provision. Its first limb is clearly intended to supplement par.(a) by prohibiting the giving of a warning which, the legislature obviously feared, judges might have continued to give despite the abolition of the requirement to give it. Its second limb seems to reflect a misconception of the effect of par.(a). Once par.(a) abolishes the requirement that jurors be warned that the evidence of alleged victims of sexual offences is generally to be treated with suspicion, no particular set of circumstances could justify the judge's directing jurors that all such evidence is treated with suspicion. If par.(a) abrogates the rule which reflects curial experience of the need for caution in evaluating the evidence of alleged victims of sexual offences because of the risk of fabrication, then there is no particular set of circumstances which can justify the trial judge in giving the jury a warning based upon general experience. It would make no sense to treat the warning which par.(b) permits - a warning based upon particular circumstances - as being restricted to the same kind of warning as that to which par.(a) refers - a warning based upon general experience."
In the present case there was a delay of about two to three years between the incidents giving rise to the charges on the indictment and any complaint being made. The learned trial Judge noted that in Longman, there was no corroboration and no specificity regarding the dates or times of the alleged offences. The appellant had been able to recall the events relevant to the charges, which charges he denied. There was, therefore, no issue whether there was any lack of specificity in the charges or delay in bringing them which compromised or caused difficulty for the appellant in his defence to the charges, so that he had suffered prejudice in his defence. The learned Judge took the view that there was no suggestion of prejudice to the defence because witnesses had died, could not be located, or witnesses were unable to recall the relevant events.
In the context of the tailoring of a Longman direction, reference was made by counsel for the appellant to the decision of the Court of Criminal Appeal in MWR v R [2003] WASCA 236, in which it was contended that the trial Judge in that case had failed to discharge the obligation of law to give a warning of the kind envisaged by the decision Longman (supra). In this context, it has been recognised that, just as the making of a complaint of a sexual offence soon after its commission may show the consistency of conduct of the complainant, so as to bolster his or her credibility, depending on the circumstances, the failure to complain or delay in complaining may reflect adversely upon the credibility of the complainant.

In MWR v R (supra) it was noted at par [16] that it was contended that the directions given to the jury by the trial Judge about the absence of corroboration of the complainant's evidence were inadequate. The trial Judge had indicated that he would give "a modified warning to suit the exigencies of the case", but it was contended that his Honour had failed to discharge the obligation to give a warning of the kind envisaged by the decision of the High Court in Longman (supra). As their Honours said in MWR v R (supra) in pars [27] – [29]:
"27.As to the other matter raised by the application, the question of the danger of conviction upon the uncorroborated testimony of the complainant, there was apparently no question at the trial that a warning of the kind required by Longman should be given, suitably adapted to the requirements of the particular case. As to the content of the warning the law is, we think, clear. The principles derived from Longman have been amplified and refined in later decisions of the High Court and in decisions of this court, culminating perhaps in the recent unreported decision, Crisafio v The Queen [2003] WASCA 104; 20 May 2003, in which the relevant authorities were discussed. In addition, reference may be made to the even more recent case of Christophers v The Queen [2003] WASCA 214; 12 September 2003, where the judgment of the Court was that of Hasluck J, with whom Murray and Roberts-Smith JJ agreed.
28.The occasion to give the warning is where, if they are to convict, the jury must rely entirely upon the substantially uncorroborated testimony of the complainant when the passage of time or other circumstances establish the need to inform the jury of the special care needed in evaluating the reliability of the complainant's testimony having regard to the forensic disadvantage in which the accused is placed when, although the evidence of the complainant is potentially unreliable, the capacity to establish its unreliability by cross-examination or calling witnesses has long since been lost. It is because the dangers inherent in the circumstances of the case may not be appreciated by the jury that the direction is required.
29.The terms in which the direction is to be given are to be tailored to the circumstances of the case. The essential point is that a warning is to be given, highlighting the dangers inherent in the circumstances of the particular case so that a fair trial may be secured by having the jury approach their decision about the credibility of the complainant with a proper understanding of the difficulties involved in the case. The absence of the capacity to appropriately test the veracity and accuracy of the complainant's evidence requires, among other things, not only reference to the circumstances which make that so, but also the direction that the jury should not rely upon the evidence of the complainant without subjecting that evidence to careful analysis and scrutiny so as to ensure that they are entirely satisfied about its reliability."
After hearing the submissions of counsel, the learned Judge in the present case adjourned to enable counsel for the accused to formulate the direction which was sought because the case was one in which the evidence comprised only the evidence of the complainant and the evidence of the accused.
Upon resumption, counsel for the accused submitted to the trial Judge that:
"Upon more considered reflection as to the Longman warning, I would have to defer to your Honour's view that it isn't an appropriate direction in this particular case because of the evidence itself that has come out during the course of this case, but I would, in general terms, endorse my learned friend's view about some tailored direction. Now, that's a bit of a long piece of string and I think it could be cut any way, but specifically I cannot think of an appropriate direction in this ‑ ‑ ‑ [case]"
The learned Judge took the view that the law did not require a Longman direction in the event of there being any delay at all in the making of a complaint. The question was whether the accused had been disadvantaged by the delay in complaining and concluded that the delay of two years in the present case was not such that a Longman direction was required. Her Honour said that the warning was required if the accused had been disadvantaged in his defence, so that the trial could be unfair if the jury were not warned about matters in respect of which he was unable to test the evidence. Her Honour concluded that, in the present case, although there was a two‑year delay in complaining, that alone did not justify a Longman direction being given.
In this Court, it was submitted on behalf of the appellant that a Longman direction was required because:
(1)The complaint was made up to three years after the alleged commission of the offence;
(2)The evidence of the complainant was entirely uncorroborated;
(3)The appellant denied committing the offences and had made no admissions;
(4)The complainant was aged between 9 and 11 at the time of the commission of the alleged offences;
(5)The alleged offences were non‑violent "touching offences", which were unlikely to leave any medical evidence especially after a period of years;
(6)Despite being able to remember some of the occasions when the offences were alleged to have occurred, the appellant "would have inevitably suffered some forensic disadvantage" because of the delay;
(7)The appellant gave evidence which suggested that animosity between the appellant and the complainant's mother may have been behind the complainant's allegations.
The relevant directions given by the trial Judge were as follows:
"Some of the amendments to our law in Western Australia that I mentioned before relate to the need for corroboration, as it's called. It's important you appreciate that there's no requirement in law that the evidence of a child complainant be corroborated or supported by any other evidence. Depending on your view of [B's] evidence, if you accept her evidence as truthful and reliable you are entitled to convict the accused on that evidence and on that evidence alone if you're satisfied beyond reasonable doubt.
You can see, ladies and gentlemen, that if that were not the case sexual offending would invariably go unpunished because people don't usually commit offence[s] against children in the presence of adults. They usually do it when they're alone with the child. Ladies and gentlemen, just be assured there's no need for corroboration, but at the same time you could not convict the accused unless the child's evidence satisfied you beyond reasonable doubt of the accused's guilt.
You know there has been some delay in [B] going to the police and complaining. I think the evidence showed that her statement was made in January of 2002 and you have had evidence that by then she was living in Queensland with her mother and her family. You know that 2002 in January was 2 or 3 years after these alleged offence because these are, as you know, 1999 for counts 1 to 5 and then 2000 for count 6, so they're 2 to 3 years later before she complained.
It's my duty to direct you that there are many reasons why victims delay in complaining of what has happened to them. Sometimes we hear of the silence of children who keep sexual matters bottled up inside themselves sometimes for years. There can be many reasons for this related to the age and the family circumstances of the victim. For that reason delay in making a complaint does not necessarily indicate that the complaint is false.
People in the complainant's circumstances, including her age, might have many reasons for not complaining about these indecent dealings and in this case, ladies and gentlemen, the complainant told you that she was frightened when these things happened and she did not want to do anything, she didn't want to report it, if that ended her mother's relationship with the accused.
It's a matter for you to look at all the evidence to consider her explanation and this is a matter for you to consider when you're judging whether you should believe her or not when you're assessing her credit."
In Christophers v R [2000] WASCA 308; (2000) 23 WAR 106, Owen J, with whom Pidgeon and Ipp JJ agreed, said at [37]:
"In my view a number of propositions can be extracted from the judgments in Longman and the discussion about Longman in other cases:
1.The 'Longman direction' is a rule of practice that applies notwithstanding the enactment of s 36BE (now s 50) of the Evidence Act 1906.
2.It is not a conventional corroboration warning.
3.It is borne out of the circumstances of the particular case and not from some general appreciation of the position of particular classes of witnesses or classes of offences.
4.It arises because of the overriding obligation of a trial judge to ensure that there is a fair trial and avoid a perceptible risk of miscarriage of justice occurring, again because of the circumstances of the particular case.
5.The warning is concerned both with the reliability and the veracity of the testimony given by the witness.
6.There is no prescribed or ritualistic formulation in which the warning is to be delivered: 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.
7.It is important that the trial judge point out to the jury the particular features of the evidence that might have an impact on the reliability of the impugned testimony and the difficulties that this has, or may have, caused for the presentation of the defence.
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': James at [22]. In this context, 'truth and accuracy' equates to reliability."
In Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169, I said at [1] – [2]:
"In my opinion, this application for leave to appeal against conviction should be refused. I have reached that conclusion for the reasons to be published by Murray J. In my opinion, it was unfortunate that the decision of this Court in Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 was not referred to in the recent decision of this Court in Allegretta v The Queen [2003] WASCA 17. 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. What must be made clear is that in such a case, the jury should not rely on the evidence of the complainant alone to convict unless they are persuaded beyond reasonable doubt of its truth and accuracy. In this context, 'truth and accuracy' is equated with reliability."

Ground 1

As to ground 1, the issue was whether the learned trial Judge was in error in considering that there was no perceptible risk of a miscarriage of justice by reason of delay in the particular circumstances of this case. Counsel for the appellant was unable to point to any forensic disadvantage. Counsel in fact conceded that a Longman warning was inappropriate, but suggested that some "tailored direction" could be given. The appellant specifically recalled the relevant occasions when the offences were said to have been committed. He was cross‑examined in relation to counts 1 and 2 on the basis that something indecent had occurred. He particularly asserted that he remembered specific details of the clothing that B was wearing and another occasion on which he had made lunch afterwards. He claimed to remember other specific details of the occasions described, but maintained that no sexual misconduct took place.
In relation to counts 1 and 2, the delay between the incidents described and the making of the complaint was approximately two and a half years. There was no suggestion that any relevant evidence had been lost or forgotten due to the lapse of time. Nor was it suggested that B, who was then 9 or 10 years old, was asleep or half asleep at the relevant times. There was no inherent improbability in B's account or any obvious or inherent weakness in her evidence. The only difficulty appears to have been about particular dates which seems to have been brought about by nervousness. In my opinion, ground 1 was not made out.

Ground 2

Ground 2 contended that the learned Judge should have directed the jury about the absence of timely complaint by pointing out specifically the possible significance of lack of timely complaint on the consistency of the evidence of the complainant and, therefore, on her credit, rather than merely referring to her explanations for her failure to complain as a matter to consider when judging her credit.
In Cook v R (supra) at [104] Anderson J, with whom Pidgeon and Wallwork JJ agreed, commented that:
"The basis upon which the evidence of the girls' complaints was admitted is not clear. There seems to have been no debate as to whether the evidence qualified as evidence of prompt complaint on the principles discussed in Kilby v The Queen (1973) 129 CLR 460 and Suresh v R (1998) 153 ALR 145. Mr Holdenson told us that that was not the basis upon which the evidence was admitted. He told us that the evidence was not objected to because the defence wished to rely on the absence of prior complaint and in particular the circumstances of the making of the complaints as tending to show that the complaints were the product of a preconcert. As has been observed, that, indeed, was the main thrust of the cross-examination of the complainants with respect to their complaint evidence."
Section 36BD of the Evidence Act1906 (WA) then provided that:
"Where on the trial of a person for a sexual offence or an offence under Chapter XXII of The Criminal Code (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -
(a)give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b)inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence."
In Cook v R (supra) it was submitted that a Judge having given a direction in terms of that required by s 36BD was required to "balance" that direction by instructing the jury that they might use the delay in complaining in assessing the credibility of each of the complainants. In this respect, Anderson J said in Cook v R (supra) at [107] – [111] that the relevant law was as follows:
"107Mr Holdenson referred us to R v Omarjee (1995) 79 A Crim R 355, R v Miletic [1997] 1 VR 593 and R v Davies (1985) 3 NSWLR 276, in which it was said that such a direction - that delay was a fact which the jury could take into account in evaluating the complainant's testimony - is a direction that should be given as a general rule. See also R v K (supra) at 409. It is usual in Western Australia to give the direction and it need hardly be said that it must be given whenever necessary in order to ensure fairness (or, as Dawson J put it in Crofts v The Queen (1996) 186 CLR 427 at 435 "when fairness demanded it"). However, failure to give the direction does not necessarily mean that the trial has miscarried and the verdict must be set aside: Kailis v The Queen (supra) at 131, 135.
108Mere delay in making disclosure of sexual assault is not, of itself, regarded as a factor which has a special forensic significance which the jury may not appreciate. The problem is not that they will fail to pay regard to it on the question of whether the complainants' story is false or not, but that they may make too much of it on that question. The tendency to be suspicious of the truth of an allegation of sexual misconduct, about which nothing was said at the time, and the tendency to make an assumption against the complainant as to the truth of the allegation in those circumstances, would appear to be the very reason why s 36BD was enacted. One might say it is the s 36BD direction which, in truth, provides the balance, in the general run of such cases.
109Furthermore, as Lee J pointed out in R v Murray (1987) 11 NSWLR 12 at 16, (a case which was decided after R v Davies (supra)) the words of the direction which the statute requires to be given, of themselves as a matter of ordinary English, raise for the jury's consideration the weight to be given to a delayed complaint. As Yeldham J said in the same case at 20:
'His Honour … in obeying the provisions of [s 36BD] did make it apparent to the jury that absence of complaint might be, but is not necessarily, a ground for rejecting the evidence of the complainant.'
110In my opinion, the law is as it was stated by Gaudron J in M v The Queen (1994) 181 CLR 487 at 514, where her Honour said:
'The presumption discussed in Hawkins' Pleas of the Crown [the presumption against a woman arising from failure to make prompt complaint] is not a presumption of law but an assumption of fact. And it is an assumption which has embedded in it a questionable suggestion, namely, that people are more likely to lie about sexual offences than about other matters. And of course - though this need hardly be said - there is no basis for thinking that females are less reliable in these matters than males. As well, the presumption is no longer generally seen as conclusive … Even so, the assumption is still accorded considerable respect and it was held by the Court of Criminal Appeal of the Supreme Court of New South Wales in Reg v Davies that, notwithstanding s 405B(2) [of the Crimes Act] a trial judge should, at least as a general rule, direct the jury that absence of complaint or delay in complaining may be taken into account in evaluating the evidence of the complainant. However, that is not a hard and fast rule and a conviction will not be set aside simply because there has not been a direction of that kind. Reg v Preval [1984] 3 NSWLR 647; Reg v Murray (1987) 11 NSWLR 12.'
111In the cross-examination of the complainants in this case, nothing really was made or sought to be made of their failure to make timely complaint. B's evidence-in-chief that she did not tell anyone because she was 'scared' and 'scared of getting in trouble' was not the subject of cross‑examination. S was asked no questions at all on the subject, either in examination-in-chief or cross‑examination."
Counsel for the defence in Cook invited the jury to use the evidence of absence of complaint as reflecting on the complainant's credibility, notwithstanding that he failed to cross‑examine either of them on that basis. The jury were also invited to disbelieve the evidence and to conclude that it was a fabrication. As Anderson J commented in Cook v R (supra) at [113]:
"It was in this way made very clear to the jury how the defence wanted them to use the evidence that it was not until 3 January 1998 that either girl had made any disclosure of the alleged offending. In that context, a charge to the jury in terms of s 36BD that absence of complaint, or delay in complaining, does not "necessarily" indicate that the allegation that the offence was committed was false is all that fairness demanded. In the context of the trial as a whole, it must have been crystal clear to the jury that they were permitted to use the evidence of delay in complaining as relevant to the complainants' credibility. I am not persuaded that there was any perceptible risk of miscarriage of justice."

Anderson J pointed out at [119] that there was a very obvious factual distinction between Longman and Cook. The complaints in Cook were made in January 1998 and, for the most part, concerned conduct in the preceding four years "at the most". There was nothing unusual or suspicious about the circumstances under which the complaints were made. There was evidence from which the jury were entitled to conclude that the disclosures were spontaneous. The trial Judge gave the jury the following direction:
"Counts 1 to 5 of the indictment are said to have occurred between 1994 and 1995 and the accused wasn't told of them or tackled with them until January 1998. That is somewhere between 2 and 4 years after the events are alleged to have occurred. With respect to counts 6 and 7, the time delay is up to 5 years and covering of course a wide time period.
Now, it's obviously not possible for an accused person to say what he was doing at every moment and the evidence does not indeed disclose a particular time or day when each of these offences are alleged to have occurred. The accused was therefore deprived of any possible alibi; for example, that he was out in the bush when something was said to have occurred.
He wasn't able to say any of that because of the delay, because you couldn't possibly know what you might have been doing at any given time.
Of course it is impossible, for example, to have the children medically examined when there is a significant delay to show any signs of recent trauma … It does not mean that the accused man cannot be convicted because of the delay but you should not convict him unless after careful scrutiny of the complainants' evidence, bearing in mind what I have said, you are satisfied both as to its truth and as to its accuracy."
The trial Judge also reminded the jury that whereas S was the alleged victim in counts 3 and 5, the prosecution case in respect of those counts depended solely on the evidence of B. The Judge also pointed out that while S was alleged by B to have been present when the offences against B charged in counts 2 and 4 were committed, S had given no evidence about them. His Honour warned the jury that S's failure to give evidence about those matters "was a matter for you to consider" and posed the question for the jury:
"Does it create a reasonable doubt that all of any of them occurred or can be explained by her youth?"
The trial Judge also made it clear to the jury that whereas the natural father of S was alleged to have been present when the offences charged took place, he was not called to give evidence for the prosecution. The trial Judge told the jury:
"You know he was in court because he was identified by one of the witnesses. You can infer from the fact that he was not called that his evidence would not be of assistance to the Crown case".
His Honour reminded the jury that the complainants were friends and warned them that they had the opportunity "to get their heads together and make up the complaints – that is, to concoct them …". The jury were warned to bear that possibility in mind when considering their evidence. The jury's attention was drawn to the fact that the evidence of B and S "was not the same" and that, in particular, S "did not give evidence of the events involving her as related by [B]". His Honour told them, in effect, that if they considered that a disparity in the evidence given by the complainants was about "something important, then it might impact on credibility". The jury were told that these were matters very much for them to weigh up and decide. His Honour drew their attention to the medical evidence which was to the effect that there was physical damage to B consistent with sexual penetration, but warned them that this did not itself constitute evidence that Cook had committed any offence. His Honour also reminded them that the medical evidence with respect to S was inconclusive. His Honour also later repeated that the only evidence against the appellant with respect to the first group of counts was that of B and the only evidence against him with respect to the second group of counts was that of S.
In Cook v R (supra), the Court was not persuaded that the nature and scope of the warnings given to the jury were insufficient. The submissions on behalf of counsel for the Crown in this respect were accepted, namely, that the directions to the jury:
"… adequately drew attention to the fact that both complainants were children who were friends and who may have concocted their stories, to the fact that their complaints were delayed and to the difficulties which this imposed upon the applicant in the preparation and conduct of his defence and to the need to subject the evidence of the complainants to careful scrutiny before being satisfied as to its truth and to its accuracy."
It is against this background that grounds 1 to 4 of the grounds of appeal in the present case fall to be considered.
In my view, the learned Judge made it clear by her direction to which I have referred that there was no requirement in law that the evidence of a child complainant be corroborated or supported by other evidence. They were told that if they accepted her evidence as truthful and reliable, they were entitled to convict the appellant on that evidence alone if they were satisfied beyond reasonable doubt. The issue raised related to the absence of a direction on the significance of the absence of timely complaint on the consistency of the complainant's evidence and, in consequence, on her credit as a witness.
As has been seen, the learned trial Judge specifically detailed the delay when summing up to the jury, referring to the fact that it was two to three years before any complaint was made about them. In my opinion, the directions then given were entirely appropriate.
In addition, her Honour made it clear that:
"Turning to the offences themselves, ladies and gentlemen, there are three elements or parts of which you must be satisfied beyond reasonable doubt before you could convict the accused. First in each case you would have to be satisfied that he dealt with the girl. Those are the words used in the indictment, 'dealt with'. Secondly, you would have to be satisfied that what he did was indecent, and thirdly you would have to be satisfied that he knew the child to be his de facto child."
In my opinion, when directing the jury in accordance with s 36BD, her Honour told the jury that they should assess the question of delay in complaining as a matter of credit generally. Such a direction was sufficient: Tanner v R [2001] WASCA 60 at paras [31] – [38] per Malcolm CJ, Anderson J and Stein AJ. As has been seen already, it was made very clear to the jury that they could not convict "unless the child's evidence satisfied you beyond reasonable doubt of the accused's guilt". This immediately preceded the direction regarding the explanation given by the complainant why she did not complain, because she did not want to report the incidents "if that ended her mother's relationship with the accused". Finally, in that context, the jury were told that it was a matter for them to consider the complainant's explanation when judging whether they should believe her or not when assessing her credit.
Given that the delay of two to three years was not lengthy and the absence of any significant evidence of loss of forensic advantage, I consider that the directions given were sufficient.
It was also contended, however, that the trial Judge did not make it clear to the jury in the final paragraph of the relevant direction the use that they could make of the failure to make a timely complaint, if they rejected B's explanation. It was submitted that the jury should have been told what use they could make of the lack of timely complaint if they rejected B's explanation for the delay in complaining. Provisions such as s 36BC reflect the position that delay in complaining does not necessarily mean that an allegation is false and that there may be a good reason for hesitation or delay in complaining. The trial Judge is entitled to comment on this aspect of the case in the performance of the duty of a trial Judge "to assist the jury in the weighing of the potential significance of delay in complaining in the particular circumstances of the case": Crofts v R (1996) 186 CLR 427 at 448 – 449 per Toohey, Gaudron, Gummow and Kirby JJ. In the present case there was no assertion on the part of the defence that the appellant had suffered any forensic disadvantage as a result of the delay which had accrued: cfKailis v R [1999] WASCA 29; (1999) 21 WAR 100 at 136 – 140 per Malcolm CJ with whom Anderson J agreed at 157.
In Tanner v R (supra), the offences were alleged to have been committed on two children, K and T, on numerous occasions between 1 January 1994 and 28 February 1999 when K was between 9 and 14 years of age and T was aged between 8 and 13. The first complaint was made by J in early 1999 to her boyfriend. She was then 14. Later she told one of her girlfriends and shortly after that she told her girlfriend's mother, who was writing a book about victims. She then told her own mother, who took her to the police in March 1999. An investigation was then commenced. T made no disclosure until she was questioned after K had made her statement to the police.
A direction regarding delay was given by the trial Judge in that case in similar terms to the directions in the present case. It was contended that the direction did not sufficiently balance the s 36BD direction by saying that evidence of delay was relevant to credibility, and could also be used by the jury in considering whether the allegations themselves were false.
This contention was rejected by the joint judgment in pars [36] ‑ [37] as follows:
"In our opinion, in the circumstances of this case, and reading the charge as a whole, the criticism made by Mr Percy is based on an analysis of the summing up which is too severe. We will accept, without here deciding, that it is necessary to ensure a fair trial in which a s 36BD direction is given that the jury should be given a balancing direction; and that the balancing direction should inform the jury to the effect that, notwithstanding the matters referred to in the s 36BD direction, the jury may use the delay in complaining as going both to credibility and to the issue whether the allegations made in the complaint are false. Accepting this to be so, we are of the opinion that the direction which was given by her Honour satisfied those requirements. The direction was not confined to credibility as such. The jury were told that they could use evidence of delay in complaining "in considering the credibility of the witnesses in relation to those events [emphasis added]".
That means, and would have been understood by the jury to mean, that they could use evidence of delay in complaining in considering whether the complainants were telling the truth about the offences."
In my opinion, in this case it was made clear to the jury that they could only convict if they accepted the relevant evidence of the complainant as truthful and reliable and were satisfied beyond reasonable doubt of the guilt of the appellant. Her Honour went on to say that they could not convict the appellant unless B's evidence satisfied them beyond reasonable doubt of his guilt. At the same time they were clearly directed that it was a matter for them to look at all the evidence when "judging whether you should believe her or not".
As has been seen, the jury were reminded about the delay in complaining and the fact that such delay does not necessarily mean that a delayed complaint is false. In this case B said that she did not complain earlier because she was both frightened when the relevant incidents happened and she did not want to report the incidents if that would end her mother's relationship with the appellant.
In my opinion, there was no substance in ground 2.

Ground 3

It was contended by ground 3 that the trial Judge should have directed the jury that, in relation to the possible motive raised by counsel for the defence for B and her mother to bring false charges against the appellant, even if they positively rejected such a motive, this would not mean that they could more readily accept that the evidence of B was true. Ground 3 also contended that, when directing the jury about a possible failure by the jury to positively believe the appellant's denial, no issue could be found against him if his evidence gave rise to a reasonable doubt. Finally, ground 3 contended that the total effect of these directions was to suggest that the appellant bore an onus of proof which was likely to have derogated from the earlier correct direction of the onus and standard of proof in the summing up.
The appellant gave evidence at the trial of his deteriorating relationship with his wife in the middle of 2001 and was cross‑examined on this aspect of the case. The appellant and B's mother together with B moved down to a house they had bought at Mandurah about 1 February 2001. The appellant was living in Wickham until the end of June. In the meantime, they had terminated their relationship in April or May, but were still on speaking terms.
In directing the jury regarding the contentions on behalf of the defence, the trial Judge directed the jury as follows:
"Now, you know that the defence alleges – and they don't have direct evidence of this, but they have what we call circumstantial evidence. They say that these charges have arisen because the complainant's mother is vindictive and she has put the girl up to it. The mother denied that, [B] denied it and you're going to have to assess that, but the other part of the accused's defence is that not only does he deny doing it, but he says the charges are false charges in the sense that Mr Flanigan [counsel for the appellant at the trial] put it that his former wife and her daughter have got their heads together on this."
It was contended that the direction should have been followed by a direction which dealt with the rejection by the jury of a positive assertion of a motive to lie put forward by the defence would have on the onus of proof, including a direction that a failure to positively accept the evidence or the affirmative rejection of such evidence would not necessarily strengthen the prosecution case: cf Crisafio v R (supra); and see Latham v R [2000] WASCA 57; Liberato v R (1985) 159 CLR 507; and Palmer v R (1998) 193 CLR 1. In Liberato (supra) at 520 Deane J said:
"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is 'a gross simplification'."
The relevant propositions, as stated by Murray J in Crisafio (supra) at [59], were:
"I am led by my consideration of the authorities to accept the following propositions, particularly in respect of a case of this kind where the evidence is entirely or substantially oath against oath, on the one hand the evidence of the complainant and, on the other hand, that of the applicant –
1.It is imperative that the jury not be given any impression that in such a case the guilt of the accused will be established by the jury's preference for the evidence of the complainant. The matters discussed in Liberato [Liberato v The Queen (1985) 159 CLR 507] are of critical importance and the jury must be properly instructed that if they are left unable to reject the evidence of the accused, although they do not positively accept it, they could not find guilt established beyond reasonable doubt, and even if the evidence of the accused is rejected attention must still be given to the important question whether the evidence of the complainant, or so much of it as the jury do accept, establishes the commission of the offence beyond reasonable doubt.
2.In testing the evidence in such a case it is permissible to put to the complainant questions concerned to establish whether or not he or she has or may have a motive to lie, to falsely implicate the accused, but Palmer establishes that it will never be admissible for the Crown to cross-examine an accused person about whether or not he or she can suggest any motive for the complainant to lie. However, that case does not establish that the accused may not give admissible evidence upon that issue and if that is done it would be open to the prosecution to test that evidence by cross-examination in the ordinary way.
3.Where the issue is raised it is open to the trial judge to comment on the evidence in the ordinary way. Indeed, the obligation to ensure that the trial is fair will often require comment. The trial judge will retain his or her freedom to make comments which are appropriate to the circumstances of the particular case, for such assistance as they may provide to the jury in the fact finding process.
4.On the other hand, the circumstances of the case may suggest that it is preferable for the trial judge to make no comment upon this factual issue: RPS v The Queen (2000) 199 CLR 620 at 637 [41] – [42].
5. Whether or not any comment is made, the trial judge must take care to ensure that the jury is not left with any impression that the accused bears any onus to establish that the complainant has a motive to lie or that the lack of any perceived motive to lie of itself justifies the acceptance of the evidence of the complainant and the rejection of the evidence of the accused."
The direction given by the learned Judge on the burden of proof was as follows:
"Even if you prefer the evidence of [B], you should not convict the accused unless you are satisfied beyond reasonable doubt of the truth of her evidence. Even if you don't positively believe the accused's denials, you could not find an issue against him – even if you don't positively believe his evidence you could not find an issue against the accused contrary to the evidence if his evidence gives rise to a reasonable doubt."
Counsel for the appellant contended that, although this was a correct direction in accordance with the judgment of Deane J in Liberato, it was not specifically related to the defence contention that the complainant had a motive to lie. It was argued that the inclusion of the words "contrary to the evidence" in the second‑last line made it confusing and unhelpful as a direction and may have invited the jury into the supposition that the appellant had some onus of proof in this context.
Counsel for the respondent submitted in relation to ground 3 that, other than asserting that the complainant's mother was vindictive towards the appellant and suggesting to the complainant B in cross‑examination that she was making up her evidence as she went along or that her mother had got her to make it up, no motive to lie was put to B by counsel for the defence at the trial.
As to count 1, the complainant was cross‑examined as follows:
"Can you actually recall this event taking place?‑‑‑Yes.
Beg your pardon?‑‑‑Yes.
Are you sure somebody never told you to say this?‑‑‑Yes, I'm sure.
Did your mother tell you to make this up?‑‑‑No."

The complainant maintained that the evidence regarding count 1 was true and that it was not made up by her or her mother and her mother did not tell her what to say. There was similar cross‑examination in respect of a number of other counts, in respect of which the answers were to the same effect.
While it was asserted that B's mother was vindictive towards the appellant and it was suggested to B in relation to a number of the alleged offences that she was making it up as she went along, or that her mother had got her to make it up, no motive to lie was directly put to B. It follows, in my opinion, that it was unnecessary to give any direction in relation to lies alleged to have been told by the complainant.
I have already referred to the direction given on the issue whether the complainant's mother was vindictive and put the complainant up to making the relevant complaints so that they were false.
The jury convicted the appellant on counts (1) and (2). In respect of these counts, the directions given to the jury were as follows:
"You cannot convict the accused of count 1 unless you're satisfied that he did put his hand down inside her shorts, over her underwear, and touched her crotch or vagina area. If you're left in any reasonable doubt about that you would have to acquit him on count 1.
Count 2 is alleged to have happened on the same day, later in the day, after lunch, in the kitchen when [B] said that the accused came from behind her, put his arms around her and put his hands down, inside this time, her underpants and put his thumbs on her vagina, inside her underpants; his hands on her vagina.
Now, the accused has admitted that he did hug the girl that day, but he has again denied that he ever touched her vagina or touched or sexually or put this thumbs, or any part of his hands, in that area of her body. So again, ladies and gentlemen, you cannot convict the accused of count 2 unless you are satisfied beyond reasonable doubt that the accused did, on that occasion, touch her vagina. If you're left in any reasonable doubt about that, you would have to acquit him of that charge."
There was also a direction on the issue of indecency which was common to each of counts (1) and (2) about which no complaint is made.
The learned Judge went on to direct the jury about the subject of indecency. It was not suggested on behalf of the appellant at the trial that the touching of the vagina, if proved beyond reasonable doubt, was other than indecent.
In my opinion, these various directions were necessary and appropriate in the context of this case. Her Honour identified the issue in relation to each of the counts on whether the appellant did touch B or do the act alleged. It was against that background that the Liberato direction was given.

Ground 4

The contention in support of ground 4 was that the matters raised in the previous grounds, taken individually or collectively, suggested that each of the verdicts of conviction was unsafe and unsatisfactory. In my opinion, for the reasons which I have expressed with respect to each of the original ground and grounds 1, 2 and 3, there is no substance in ground 4. In this particular context, in Crampton v R (2001) 206 CLR 161 at par [45] Gaudron, Gummow and Callinan JJ (with whom Gleeson CJ agreed) said that:
"The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury."
In my opinion, it has not been demonstrated in this case that the appellant suffered from any particular forensic disadvantage by reason of the delay in making the relevant complaint. For that reason it is distinguishable from Crampton in which, as Gaudron, Gummow and Callinan JJ said at [45], was one in which their Honours also said:
"Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co‑complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion."
In my opinion, the directions given in the present case were adequate so that ground 4 has not been made out.

Conclusion

For these reasons I would dismiss the appeal against conviction.

MURRAY J: The appellant was convicted by a jury of two offences of indecently dealing with a child who was, to the appellant's knowledge, his de facto child within the meaning of the Criminal Code (WA). She was his stepdaughter. The trial was in the District Court on 23 and 24 October 2003.
A short chronology of significant events is as follows. The child was born on 21 August 1989. In 1994 and 1995 she was sexually interfered with by a man named Cook. She would then have been aged between 4 and 6 years. The offences committed were acts of digital penetration of her vagina. Cook was the husband of a woman who was a paid care‑giver, in whose care the complainant and other children were placed while their parents were at work. A complaint of these offences was not made until January 1998, some 3 years after the last of the offences was committed. The child then commenced to receive counselling while the offences were investigated and while, ultimately, criminal proceedings were taken against Cook. This case generated issues in respect of which there is a decision of this Court which is reported: Cook v R [2000] WASCA 78; (2000) 22 WAR 67.
Meanwhile, in April 1997, the complainant's mother and the appellant were married. The family moved to Wickham where they lived until the mother returned to Perth in 2001. That move appears to have signalled the beginning of the end of the relationship, which, according to her evidence, effectively ended 8 months later. At the beginning of 2002, she and the complainant moved to Queensland where she formed another relationship.
The two offences of indecent dealing of which the appellant was convicted occurred on the same date in Wickham some time in the first half of 1999 and so more than a year after the complaints of the offences committed by Cook were made. By then the child was aged 9 years.
Again there was a delay in making any complaint. The child's mother, who gave evidence at the trial in October 2003, gave no evidence of any complaint made to her. The child's evidence was that she made her complaint to police officers in Queensland. She was taken to the police station by her mother and her mother's fiancé. Over a period of 4 hours she made a statement. It appears, on the evidence, that this occurred in January 2002, some 2 ½ to 3 years after the offences were allegedly committed.
The complainant did not, of course, give her evidence before the jury. In accordance with the protective provisions of the Evidence Act 1906 (WA) her evidence, including cross‑examination, was taken by video link. That occurred in February 2003, 8 months before the trial by jury at which the video recording was played.
During the course of cross‑examination it was put to the complainant that her evidence of the offences of which the appellant was convicted was a fabrication, a story "made up" by the complainant's mother. It was put to the child that her mother had instructed her what to say to the police and in evidence. The complainant denied this. Finally, it was put to her that her mother had said that she was going to ruin the lives of the appellant and his new partner, but again the child denied that this had been said. Nothing was put or sought to be put to the child concerning what Cook had done to her.

Evidence of sexual experience of the complainant

At the commencement of the trial in October 2003, defence counsel who represented the appellant at the trial and in the proceedings in February 2003, during which the complainant's evidence was taken (but who was not counsel who appeared for the appellant before us), applied for leave to cross‑examine the complainant's mother about the events following the offences committed by Cook. Counsel said that he had chosen not to make such an application to cross‑examine the complainant, but he sought to put to her mother that she was receiving counselling during the time when it was alleged that the offences were committed by the appellant and so she might have been expected to complain if any such offences were attempted by the appellant, bearing in mind that it had been put to the complainant that nothing of the kind alleged by her in fact occurred.
The application was required by, and fell to be dealt with under, s 36BC of the Evidence Act, which is in the following terms:
"(1)In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of a defendant unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2)The court shall not grant leave under subsection (1) unless satisfied that —
(a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission."
Her Honour the trial Judge refused to grant leave, observing simply that she could not see that what was sought to be adduced or elicited had substantial relevance to the facts in issue. A ground of appeal, but faintly argued before us, asserts that her Honour was in error in that regard. It was put to us that the evidence would certainly have made it more likely that the child would know from experience and having the benefit of the counselling that what was occurring was wrong and there ought to be evidence that she objected to what was done to her. Further, it was suggested that she would have been likely to make a timely complaint in view of the counselling she was receiving and, again, that the evidence would suggest that her allegations were unlikely to be true because, knowing that she was receiving counselling, the appellant would be unlikely to offend in that way.
For present purposes it may be accepted that the evidence was asserted to have substantial relevance to the facts in issue because the defence was that the allegations were concocted and were untrue and, for present purposes, it may be accepted that the application to adduce the evidence would not turn on s 36BC(2)(b) in that there was no evidence to suggest that if the evidence had substantial probative value and relevance to the facts in issue, it would not outweigh any distress, humiliation or embarrassment (of which there was no evidence) which the complainant might suffer as a result of its admission. The fate of the application turned upon the question of substantial relevance and the probative value of the evidence, as her Honour the trial Judge appreciated.
In that regard it is noteworthy that the evidence was sought to be adduced from the complainant's mother. Therefore the evidence could not be directly about the offences committed by Cook but could only relate to that sexual experience by being concerned with the counselling being received, the content of that counselling, and the advice that might have been received and the reaction which might have been anticipated by the complainant to offending of the kind alleged against the appellant.
In my opinion, if it is to be established that her Honour the trial Judge erred in her decision on this application it can not be upon the basis that her Honour misunderstood the nature of the question before her. It would have to be upon the basis that her Honour's decision was not open to her, that the circumstances in fact dictated that the proper decision was to admit the evidence which it was anticipated the complainant's mother might give.
In my opinion, that cannot be established. It depends upon the proposition, firstly, that in the light of her experience, if the complainant was indeed the subject of the offences alleged against the appellant she would have objected to this conduct and would have complained promptly of it, but this appellant was, at the relevant time, her stepfather, unlike the situation with Cook, and the complainant in fact gave evidence that although she was frightened by the appellant's conduct and she knew it was wrong and that she could report it, she did not do so because she did not wish to jeopardise her mother's relationship with the appellant. In those circumstances, the probative value of the evidence as a challenge to the likelihood that the matters alleged occurred is, in my opinion, reduced to insignificance.
Further, if it is considered that the appellant was unlikely to commit the offences knowing of the counselling and of the history, again, it seems to me that the probative value is slight. The appellant would know that there had been delay in making the original complaint and for myself I can see no reason to suppose that in the light of the history, the appellant would be deterred from such offending by the prospect of discovery. Indeed, on the contrary, he might be emboldened to take advantage of the relationship with the complainant's mother and the different family situation to seek the child's silence. In short, it seems to me that it cannot be asserted that, not only was her Honour the trial Judge wrong in the decision to which she came, but that the circumstances compelled the contrary decision in favour of the grant of leave.

The need for a Longman direction

As I have mentioned, this was a case of oath against oath. It could not have escaped the jury's notice that the appellant denied the commission of all the offences alleged in the indictment. Her Honour the trial Judge made it abundantly clear to the jury that they could not convict of any of the offences charged (and, as has been seen, the jury did convict of two), unless they accepted the evidence of the complainant as being truthful and reliable and the jury were satisfied by that evidence of guilt beyond reasonable doubt.
By s 50 of the Evidence Act, not only is the trial Judge not required to warn the jury that it is unsafe to convict upon the uncorroborated evidence of one witness, but the Judge is precluded from giving any such warning "unless the judge is satisfied that such a warning is justified in the circumstances". The circumstances which may justify such a warning and the terms in which it should be given have been discussed in a series of cases in the High Court from the case of Longman v R (1989) 168 CLR 79, and in decisions in the various Australian jurisdictions; in this State in a number of decisions culminating, perhaps most recently, in the case of Crisafio v R (2003) 27 WAR 169.
For present purposes I think it is useful to refer to one such decision only, the decision of the High Court in Doggett v R (2001) 208 CLR 343. In that case, a majority of the Court held that a warning of the danger of conviction was required. It was a sexual assault case involving a delay in complaint which was first made in 1998 in respect of offences allegedly committed between 1979 and 1986. Unsurprisingly after that time, the only direct evidence against the accused of the commission of the offences was that of the complainant, but there was corroborative evidence, particularly in the form of a taped telephone conversation between the accused and the complainant.
As to whether a warning in conventional Longman terms was or was not required, all members of the Court, including Gleeson CJ and McHugh J dissenting, made it clear that it was not the mere fact of delay which would justify or require a warning of the kind under discussion, but the fact that the circumstances of the case, whatever they might be, had left the accused at a significant disadvantage in the capacity to test adequately the veracity and reliability of the evidence of the complainant: see per Gleeson CJ at 348 [10] ‑ [12], Gaudron and Callinan JJ at 356 [51] ‑ [52], McHugh J at 364 [80] and Kirby J at 369 ‑ 70 [99] ‑ [100].
The crucial point is that, not only may the accused be at a forensic disadvantage in testing the prosecution case in the form of the complainant's evidence, but that the circumstances may not reveal to the jury that that is the case. Although, as in this case, the jury may be directed that they would need to be satisfied of guilt beyond reasonable doubt by the evidence of the complainant, they may not, unguided by a warning from the trial Judge which will refer to the specific forensic disadvantages confronting the accused in the circumstances of the case, give to the complainant's evidence that special degree of careful scrutiny warranted before its reliability is accepted.
In this case, as has been seen, it would appear that although the offences were allegedly committed in the first half of 1999, there was no complaint and no investigation involving the appellant before the beginning of 2002. A Longman type warning was sought by the defence at trial. In the course of debate, her Honour made it perfectly clear that her focus was on whether any forensic disadvantage was presented to the appellant. Defence counsel was unable to raise any such matter. Indeed, cross‑examination of the complainant, later confirmed in the appellant's evidence at trial, revealed that he purported to remember the occasion when the offences of which he was ultimately convicted were allegedly committed. On his behalf it was put to the complainant, and he gave evidence, that on the occasion in question there was an innocent explanation for conduct which might have been misinterpreted as constituting acts of indecent dealing with the child.
Confronted with that problem, counsel at trial, having been invited to give the matter some thought during a short mid‑morning break, when the court resumed conceded that a Longman direction was not required but sought "some tailored direction", a view apparently expressed also by prosecuting counsel. However, counsel said he could not think of the appropriate terms in which such a direction should be formulated and that was really the end of the matter. Nothing further was put to us on appeal and, in my opinion, the incapacity of the circumstances to demonstrate any forensic disadvantage about which the jury would require instruction is fatal to the success of this ground of appeal.

The delay in complaint

The trial Judge gave the conventional direction in terms of s 36BD of the Evidence Act. The complaint on appeal is not of error in that regard, but it is said that her Honour "should have pointed out specifically to the jury the possible significance of lack of timely complaint on the consistency of the evidence of the prosecutrix and therefore upon her credit rather than merely referring to her explanations for failure to complain in evidence as a matter to consider when judging her credit."

The jury were told that delay in complaint was a matter to which they might have regard when assessing the credit of the complainant. In that context they were reminded that the explanation of the complainant was that she was frightened when the offences were committed but she did not wish to report it because she thought that to do so might end her mother's relationship with the appellant, which it will be recalled, from the chronology I gave earlier in this judgment, was then very firmly in place. It was not until it ended and the child and her mother moved to Queensland that the complaint was made.
In the unreported case of Tanner v R [2001] WASCA 60, this Court upheld as sufficient a direction given in much the same terms as were used by her Honour in this case and for myself I can see no need to do more. I would accept that the direction required by s 36BD of the Evidence Act requires some additional observation by the trial Judge to ensure that the direction is kept in proper balance. But all that is required, in my opinion, is that when the jury are given the warning that a delay in complaint does not necessarily indicate that the complainant's allegation that the offence was committed is false and when the jury are informed that there may be good reasons why a truthful victim of an offence may delay in making a complaint or refrain from doing so, referring to any such explanation given by the complainant in evidence, the judge should go on to say that it is, however, the case that a delay in complaint or refraining from making a complaint is something to which the jury may have regard in considering the credibility of the complainant; whether they accept her as a truthful and reliable witness in her testimony that the offence was committed.

The suggestion that the complainant had a motive to lie

I have mentioned that it was put to the complainant in cross‑examination that her evidence was a fabrication, deliberately false evidence given upon the instruction of the complainant's mother. It was put to the child that when her mother's marriage to the appellant failed, her mother was very angry about it and told the complainant that she was going to ruin the life of the appellant and his new partner. As I have mentioned, all of that was denied by the complainant. She said that her mother simply told her to tell the police the truth.
The topic was raised again when the child's mother was cross‑examined. In effect, she admitted animosity towards her husband's girlfriend, but she said that that animosity did not extend to the appellant, who was indeed proposing to return to her when she announced her engagement to her present husband. She said the appellant was devastated by her decision to bring their marriage to an end.

The appellant gave evidence of the deterioration in his relationship with the complainant's mother, its termination, his acquisition of a new girlfriend, and his wife's anger at that relationship. He said nothing further and so at the end of the day there was, in truth, no evidence to support the suggestion that the child's evidence was knowingly false, a fabrication at the instance of her mother for the purpose of ruining the appellant's life. In my view, the jury should have been told that there was no such evidence and to ignore any such suggestion. Her Honour the trial Judge gave no such direction. She merely referred to the suggestions made by defence counsel. In my opinion, that was a favourable comment from the point of view of the appellant.
But the appellant adds the complaint in this context, that the directions of the trial Judge gave rise to a danger of a reversal of the onus of proof when her Honour reminded the jury at the conclusion of her charge that, even if they preferred the evidence of the complainant, they could not convict the appellant unless satisfied of guilt by the child's evidence, beyond reasonable doubt. Her Honour added that even if the jury did not positively believe the appellant's denials, "you could not find an issue against the accused contrary to the evidence if his evidence gives rise to a reasonable doubt".
The statement is a little confused, with respect, but I think it is clear that what her Honour was telling the jury was that if they did not accept as true the evidence of the accused, but if they were left uncertain whether to accept it or not, then they could not find the contrary evidence given by the complainant sufficient to prove guilt beyond reasonable doubt. Unless the jury positively rejected the evidence of the appellant and positively accepted the evidence of the complainant as a truthful and accurate account, they must be left with a reasonable doubt: cfLiberato v R (1985) 159 CLR 507 and Crisafio at 183, the first proposition referred to in [59].
In this case, her Honour gave clear directions generally in charging the jury in relation to onus and standard of proof and the fact that it was only the complainant's evidence which, if it was accepted as truthful and accurate, was capable of establishing guilt beyond reasonable doubt. The language used in the passage referred to above would not, in my opinion, have confused the jury and did not derogate from the clarity of the directions otherwise given. I would dismiss the appeal.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Murray J. I agree with those reasons and have nothing to add.