Stalker v The Queen - [2003] WASCA 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STALKER -v- THE QUEEN [2003] WASCA 132

CORAM: SCOTT J
TEMPLEMAN J
HASLUCK J

HEARD: 16 APRIL 2003

DELIVERED : 20 JUNE 2003

FILE NO/S: CCA 224 of 2002
CCA 225 of 2002

BETWEEN: BARRY LESLIE STALKER
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal and new trial - Appeal against conviction and sentence - Whether summing up to jury addressed evidence of particular significance in respect to discrepancies between the Crown and defence - Whether Longman warning sufficient - Retrial ordered

Legislation:

Nil

Result:

Appeal against conviction allowed
Retrial ordered

Category: A

Representation:

Counsel:

Appellant: Mr M J McCusker QC & Mr J A Thomson
Respondent: Mr D Dempster

Solicitors:

Appellant: Mazza & Mazza
Respondent: State Director of Public Prosecutions

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

Alexander v The Queen (1981) 145 CLR 395
Allegretta v The Queen [2003] WASCA 17
Christophers v The Queen (2000) 23 WAR 106
Doggett v The Queen (2001) 208 CLR 343
Dyers v The Queen (2002) 192 ALR 181
Garrett v Nicholson (1999) 21 WAR 226
Hart v The Queen (1932) 23 Cr App R 202
Herbert v The Queen [2002] WASCA 362
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
R v BWT (2002) 54 NSWLR 241
R v Turnbull [1977] QB 224

Case(s) also cited:

Blight v The Queen [2001] WASCA 122
Crampton v The Queen (2000) 206 CLR 161
Dawe v The Queen [2001] WASCA 306
Dinsdale v The Queen [2000] 202 CLR 321
Gutierrez v The Queen [1997] 1 NZLR 192
Jones v The Queen (1997) 191 CLR 439
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 193 ALR 184
R v Birks (1990) 19 NSWLR 677
R v Chilvers [2003] WASCA 87
R v Fenlon (1980) 1 Cr App R 307
Seymour v ABC (1977) 19 NSWLR 219
Stalker v The Queen [2002] WASCA 364

SCOTT J: The appellant was convicted after trial of one count of rape. The indictment contained six counts and the appellant was acquitted either by a direction of the trial Judge or by verdict of the jury of five of those six counts. The remaining count, count 6, alleged that on a date unknown between 1 January 1985 and 31 December 1985 at Willetton the appellant committed rape upon one CS. The victim was named in full in the indictment, but for the purposes of these reasons she will hereinafter be referred to as "CS".
So far as the Crown's case on count 6 was concerned, it was adequately summarised by counsel for the prosecution when outlining the case to the jury. In that respect Ms Forrester said:
"In 1985, the year that … [CS] turned 15 years of age but prior to her birthday, so she was 14, … [CS] was asleep in her own bedroom at the … [CS] family home in Willetton. The Stalkers came over to visit one night when the children had school the next day. The accused for some reason stayed the night at the house but his wife and two children left to go home.
He stayed the night. However, early in the morning … [CS] was lying in her bed when she was awoken by a sharp repetitive surging pain. It was the pain of something penetrating her vagina. She realised that someone was lying on top of her. She could smell alcohol on this person's breath and the presence of something uncomfortable very close to her face.
She didn't open her eyes because she wanted it to go away, and she doesn't know how long it went on for but she will tell you that it felt like forever. The whole time this was going on, the person said nothing. Eventually, however, he got off … [CS] and she felt relief as the weight on her chest went away and she could suddenly breathe. The sharp pain in her vagina went away but it was replaced by a dull ache.
… [CS] opened her eyes and she saw the accused man leaving her room. She saw and then heard him going to the bathroom next door to her room and flushing the toilet. He returned to where … [CS] was still sitting up. He asked her, 'Do you know where my keys are?' and she couldn't say anything but, 'No,' and then he left her room and she didn't see him again that day. He said nothing about what had just happened.
A short time later … [CS] got out of bed as it was time to do so, being a school morning, and found spots of blood on her sheets. As was not unusual, … [CS] put her own sheets in the washing machine and went to school. That was the last time that the accused is said to have assaulted … [CS] and indeed the last time, until this matter came to court, that … [CS] saw the accused."
The trial took place in the middle of November 2002, a period of almost 18 years from the starting date of that count on the indictment. There is no dispute that, because of the lapse of time between the event the subject of the charge in the indictment and the trial, this was a case in which a Longman warning was required (Longman v The Queen (1989) 168 CLR 79).
It was also not in issue that CS turned 15 on 22 September 1985 so that at the time of the alleged events she was either aged 14 or 15.
The complainant's evidence was that on the night in question the accused, his wife and their two girls had come over to the CS family house for the afternoon and/or for dinner. They had arrived in two cars. The accused's wife and the girls came in one car and the accused in another.
The complainant's evidence was that after she went to bed the appellant's wife and the girls left the CS family house. The evidence of the complainant was that, so far as she knew, the appellant had left the CS family house as well. The incident giving rise to the allegation on count 6 occurred in the early morning when the complainant said that the appellant came in and had sexual intercourse with her without her consent. It is not necessary to repeat the evidence as to the incident in any greater detail in the course of these reasons.
The complainant's evidence is that after the incident she saw the appellant leaving the room. Her evidence was that she later heard the toilet flush and following that, she says, the appellant returned to her room after a few minutes and said, "Do you know where my keys are?" She understood that to be a reference to the appellant trying to find the keys to his car.
The complainant's mother was also called to give evidence. She testified that the renovations and extensions to the house in which the family lived were carried out in 1983 and could have been completed in 1984. The complainant's mother said that she had checked her records and the renovations occurred in 1983. She also said that in 1984 the family had opened a steakhouse and that Sunday was the only day when they had visitors over. The complainant's mother said that Mrs Stalker and the girls arrived without the appellant and that the appellant arrived later in a ute. She said that it was the ute that he used to drive around in.
The complainant's mother said that both her husband and the appellant had quite a few drinks and that Mrs Stalker and the girls went home but the appellant remained at the house. She said that the appellant went to sleep in the games room in the extension that had been constructed. She said that she did not know what happened to the appellant's car keys.
The complainant's mother, in cross‑examination, said that the appellant had a khaki‑coloured utility which he bought fairly new and that it was either a Holden or a Falcon. She said that on the day in question he arrived at the house in that vehicle. She did not, however, know what vehicle Mrs Stalker had used to come to the house.
The complainant's father testified that the renovations had been completed earlier, probably in 1982, at about the time that the family bought the steakhouse. He also testified that Mrs Stalker and the girls arrived in a different vehicle to the appellant. His evidence was that Mrs Stalker was in a lime green station wagon and the appellant in a white ute. However, the complainant's father said that he did not see the appellant arrive.
The complainant's father also testified that the appellant eventually went to sleep on the lounge room floor. He said that the last time that the complainant's family saw the appellant's family was in 1984 and he thought that it was summer.
So far as the defence case was concerned, the appellant gave evidence and he testified that he had never seen the extensions at the complainant's house and that he had never stayed overnight there. He said that in the 1980's he only had one car and that he obtained a second car (a red Toyota) in 1986. He said that in 1985, the time of this alleged event, he had an ice green Commodore sedan. He testified that he had never been to the complainant's house after 1982.
The appellant's wife testified that they bought the ice green Commodore in 1982 and before that they had a lime green Holden station wagon. Mrs Stalker said that she had never seen the extensions or been to the house after the extensions were completed. She also said that the family had never used a utility from the appellant's business.
Finally, the appellant's daughter testified that the family had a lime green station wagon until 1982 when the ice green or whitish green sedan was acquired. She said that the appellant had work vehicles for the purposes of his job and that he had used a four‑wheel drive landcruiser utility.
It has been necessary to traverse the evidence because the grounds of appeal challenge the summing up of the learned trial Judge, inter alia, on the basis that his Honour did not point out to the jury in his address the fundamental conflict in the evidence between the Crown case and the defence case. Importantly, it was contended that the learned trial Judge did not outline to the jury the conflicting evidence in relation to the vehicles that were used by the appellant and his family at the time of the alleged incidents and the conflict between that evidence and the evidence from the complainant's family.
In addition, it is said that the learned trial Judge did not refer to the conflict in the evidence between the prosecution and the defence concerning the extensions to the complainant's house and whether the appellant and his family had been to the house after the extensions were completed, as the prosecution case contended.
It is important to note that the matters giving rise to the grounds of appeal do not only go to credibility. For example, the complainant's evidence was that after the incident the subject of count 6 the appellant had returned to the complainant's bedroom for the purpose of locating his car keys. If the appellant and his family had arrived in the one car (and their evidence was that they only had one car at the time), then either the family would have returned home in that car or somebody else must have driven the appellant home the following day. In either event, the appellant would not have been returning to the complainant's room for the purpose of trying to find his car keys.
The complainant's evidence as to the event the subject of count 6 was that it occurred in the early part of the morning and that she was woken up with an excruciating sharp pain. She said that she was only semi‑awake and thought that maybe she was dreaming and just tried to make it go, but she said, "It didn't and it got worse." She said that the excruciating pain was in her vagina and that there was a weight on top of her and she smelt alcohol. The complainant said that when the pain stopped, she sat up and it was "Uncle Barry" leaving the room. Uncle Barry was the name by which the appellant was known to the complainant.
The complainant also said that she was "absolutely 100 per cent certain" that it was the appellant.
In addition, the complainant said that after the appellant went to the toilet, he came back into her room and said, "Do you know where my keys are?" The complainant replied, "No, I didn't," but said that she said nothing to him about the incident that had occurred.
This was a case in which the appellant was well known to the complainant and was not the kind of case where an identification warning was required, Alexander v The Queen (1981) 145 CLR 395 and R v Turnbull [1977] QB 224.
The defence case was that there was no sexual impropriety or sexual contact of any sort between the appellant and the complainant. In addition, as I have already indicated, the defence case was that the prosecution's evidence in the particular respects to which I have referred was factually incorrect.
The grounds of appeal against conviction are:
"1.The learned trial Judge erred in law in that he failed adequately to warn the jury of the danger of convicting the appellant because of the long delay between the date of the alleged offence and the complaint, and because of the failure of the complainant to state, with any degree of particularity, the date of the alleged offence.
Particulars
(i)The learned trial Judge should have warned the jury that such delay, coupled with the lack of any specific date of the alleged offence (said by the complainant to have occurred in 1985, although the evidence of her father was that the appellant and his wife were last at their home in 1984 - transcript, p 444) made it impossible for the appellant to refute the allegation by alibi evidence or otherwise, and for that reason, there being no independent corroboration of the offence, it would be very dangerous to convict;
(ii)The learned trial Judge should also have specifically warned the jury that it must take serious account of the danger of convicting the appellant when considering the complainant's evidence (transcript, pp 369 ‑ 370) that:
(a)during the commission of the alleged offence she woke up but kept her eyes closed;
(b)she did not see the appellant during the commission of the alleged offence;
(b)the only evidence to identify the appellant as the alleged offender was her evidence that she saw the appellant's profile for a brief period in the dawn light after the offence was allegedly committed and as the appellant was leaving her room and for a further brief period when the appellant allegedly returned to her bedroom and asked 'Do you know where my keys are?'
(iii)The learned trial Judge should also have warned the jury that, in considering whether the appellant had penetrated the complainant with his penis, it must take serious account of the danger of convicting the appellant on the uncorroborated evidence of the complainant who did not state that she was penetrated by a penis;
(iv)The learned trial Judge failed to specifically warn the jury that, at every stage of carrying out its scrutiny of the complainant's evidence, it must take serious account of the danger of convicting the appellant;
(v)The learned trial Judge erred in law by telling the jury that the warning which he gave them was 'both commonsense, but also a legal direction' (transcript, p 613). The learned trial Judge should have given a warning with the unmistakable imprint of the Court's own authority, and should have directed the jury that the foundation of the warning was the accumulated experience of the courts in dealing with cases where there has been substantial delay in the making of complaint about alleged sexual offences. The reference to 'both commonsense, but also a legal direction' detracted from the strength of the required warning.
2.The learned trial Judge erred in law in failing to warn the jury that it should exercise great caution before accepting the evidence that the appellant had arrived at and left the complainant's house in a ute, separately from the other members of his family. The learned trial Judge ought to have warned the jury that:
(a)it was integral to the Crown case that the appellant had arrived at and left the complainant's house separately from the other members of his family, and that he had allegedly asked the complainant about the location of his car keys before leaving the complainant's house;
(b)the uncontradicted and unchallenged evidence of the appellant and his wife was that their family did not have two cars until 1986 (transcript, pp 554 ‑ 555, 581 ‑ 582);
(c)the defence case had distinctly raised the issue that the appellant had never arrived at the complainant's home separately from his family in a ute (transcript, pp 423, 449); and
(d)the prosecutor failed to cross‑examine the appellant as to whether he had access to a ute which he allegedly drove to and from the complainant's house.
3.The learned trial Judge erred in law in failing to instruct the jury that alternative verdicts were open to them on the evidence.

Particulars
(i)The defence case was that, if the appellant was present on the date of the alleged offence, (which was denied) there was no evidence that the appellant had penetrated the complainant with his penis, as opposed to penetrating her by some other means such as with his finger (transcript, pp 615 ‑ 616, see also at p 526);
(ii)If the jury was satisfied that the appellant was present on the date of the alleged offence, it was open on the evidence for the jury to conclude that the appellant had not penetrated the complainant with his penis, but had penetrated the complainant by some other means such as with his finger;
(iii)In the circumstances in particulars (i) and (ii) hereof the learned trial Judge ought to have instructed the jury in accordance with section 596(c) of the Criminal Code that there was an alternative verdict open to them which they should consider, namely that the appellant was guilty of unlawfully and indecently dealing with the complainant, who was a girl under the age of sixteen years.

4.The appellant's conviction was unsafe and unsatisfactory.
Particulars
(i)The lengthy delay between the time of the alleged offence and the complaint, coupled with the lack of any specific date of the alleged offence (said by the complainant to have occurred in 1985, although the evidence of her father was that the appellant and his wife were last at their home in 1984) made it impossible for the appellant to refute the allegation by alibi evidence or otherwise.
(ii)There was no independent corroboration of the alleged offence.
(iii)The complainant's evidence (and the only evidence) allegedly identifying the appellant was that during the commission of the alleged offence she woke up but kept her eyes closed, and that she only saw the appellant's profile for a brief period in the dawn light after the offence was allegedly committed and as the appellant was leaving her room, and for a further brief period when the appellant allegedly returned to her bedroom and asked 'Do you know where my keys are?'
(iv)The complainant did not testify that she had been penetrated with a penis.
(v)There was no explanation given for the lengthy delay between the time of the alleged offence and the complaint, save the appellant's statement that she was disgusted and repulsed, and did not have the language to talk about the incident with her family (transcript, pp 371 ‑ 372, 391), albeit she had a good relationship with her family.
(iv)The evidence of the complainant's father was that on the occasion when the offence allegedly occurred (which the complainant said was in 1985), the appellant's wife had arrived at the complainant's house in a 'limey‑green' station wagon (transcript, pp 433, 448), but the uncontradicted and verified evidence of the appellant, his wife and his daughter was that this car had been sold by them in 1982 (transcript, pp 552 ‑ 553, 572, 587 ‑ 588, exhibit 12).
(vii)The prosecution case was that the appellant had arrived at and departed from the complainant's home in a ute, separately from his family (transcript, pp 423, 432 ‑ 433, 448 ‑ 449), but the unchallenged evidence of the appellant and his wife was that his family only owned one car (and no ute) until 1986 (transcript, pp 554 ‑ 555, 581 ‑ 582) and the appellant was not cross‑examined as to whether he had access to a ute.

(viii)The Crown prosecutor cross‑examined the appellant's wife as to whether the appellant had access to a ute (transcript, pp 581 ‑ 582), without putting these material allegations to the appellant.
(ix)The evidence of the complainant's father as to what occurred on the night before the alleged offence was evidence as to events which occurred some 17 years previously on an occasion when he had a significant amount of alcohol to drink (transcript, pp 418, 433).
(x)The jury's verdict was, in the circumstances, inconsistent with its verdict of not guilty of the other charges the subject of the allegations by the complainant.
(xi)The learned trial Judge should have upheld the submission of no case to answer made by the defence at the conclusion of the Crown case, as the prosecution evidence taken at its highest was not capable of excluding beyond a reasonable doubt the inference that the complainant had not been penetrated by a penis and it was unfair and an abuse of process for the trial to be allowed to continue."

Ground 3 of the grounds of appeal was not pursued and particular (ii) of ground 4 was also not relied upon.
As can be seen from the grounds of appeal, they do not challenge the general warnings given by the learned trial Judge in accordance with Longman, but more specifically challenge what is said to be the Judge's failure to bring to the jury's attention particular aspects of the evidence central to the issues between the Crown and the accused.
It is then necessary to turn to the legal principles which now deal with the obligations on a trial Judge following Longman and the way in which those principles have developed since that decision.
The first of the cases dealing with the appropriate warning to be given in circumstances such as these is Longman v The Queen, above. It is not necessary to examine that case in detail because the principles there established have been developed and commented on in subsequent judgments.
More recently in R v BWT (2002) 54 NSWLR 241 Sully J said at 263:
"The judgment of the Chief Justice contains an extensive discussion of various post‑Longman decisions. That discussion by the Chief Justice is crystallised by his Honour into a series of propositions expressed as follows (at 375):
'(i)Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair.
(ii)A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt.
(iii)The need for, and content of, any comment will depend on the circumstances of the case.
(iv)Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case.
(v)Where it appears from the course of evidence, including cross‑examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing‑up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties.
(vi)Where the summing‑up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate.
(vii)In some cases a warning which uses terminology such as 'dangerous' or 'unsafe' to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v).'"
Those principles were referred to with approval by Kirby J in Dyers v The Queen (2002) 192 ALR 181 at 196 in the following passage:
"I hesitate to embark once again on this territory. 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 the 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."
Similarly, in Doggett v The Queen (2001) 208 CLR 343 Kirby J said at [120] to [122]:
"There were certain differences in the reasoning in Longman as to precisely why a warning was necessary, notwithstanding the statutory relief from the obligation to give the warning formerly required by the common law and judicial practice. Yet one common element informed both the joint reasons of Brennan, Dawson and Toohey JJ and the separate reasons of Deane J and McHugh J. This was a recognition of the serious forensic disadvantages suffered by an accused person in a criminal trial in meeting, for the first time, accusations made long after the subject offences were alleged to have occurred. In their separate reasons, Deane J and McHugh J added a reference to a second and related danger, namely the risk that, after such an interval of time, the memory even of an honest witness might become contaminated. A lengthy lapse of time could therefore make acceptance of a witness's testimony dangerous. It was such as to require particular scrutiny and the need for external confirmation of what the witness said.
Loss of forensic advantage: So far as this first element is concerned, upon which this Court was unanimous, the joint reasons state:
'[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.'
In his reasons, McHugh J made a similar point:
'[There] must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.'"
In the Supreme Court of Western Australia in Christophers v The Queen (2000) 23 WAR 106 Owen J said at 117:
"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."
The final matter to which reference should be made is Allegretta v The Queen [2003] WASCA 17 where Roberts‑Smith J said at [105]:
"The analysis by Sully J of the relevant High Court authorities on this point and his Honour's summary of propositions to be gleaned from them afford useful guidance. Whether or not they are all necessarily strictly applicable in the way presented by his Honour is not, however, a question which falls to be decided in this case. That is because the delay here (in the order of five years) and the circumstances otherwise - including the generalised nature of the uncharged unlawful sexual acts and the lack of corroboration - in my view clearly did call for a Longman direction which warned the jury of the danger of convicting on the complainant's evidence alone not only because of the difficulties of recollection thereby presented to the applicant, but because of the denial to the applicant of the forensic weapons that a reasonably contemporaneous complaint would have provided."
With those principles in mind it is then necessary to examine the summing up of the learned trial Judge in this case in the context of the trial overall. At the conclusion of the hearings of submissions of counsel in this appeal we indicated that we would like to peruse the transcript of the addresses by counsel which preceded summing up. The reason was to see the extent, if any, to which counsel had emphasised the discrepancies in the evidence to which I earlier referred. That transcript has since been provided. What is apparent from the transcript is that counsel for the accused did examine in some detail the evidence concerning the various vehicles owned by the appellant and his family at different times and compared that evidence to the evidence of the complainant and the complainant's family concerning the cars that were used on the night of the alleged offence. Not surprisingly, counsel for the appellant used that evidence to throw doubt upon the complainant's evidence and the evidence of her family. That part of counsel's address was, however, only part of a more generalised attack upon the credibility of the prosecution witnesses.
Counsel for the prosecution, on the other hand, made only peripheral and passing comment about the inconsistencies said to be present in the prosecution evidence. In that respect counsel for the prosecution referred to the inconsistencies concerning the vehicles and, amongst other things, referred to the evidence of the complainant's father in relation to those vehicles and said, "He may be wrong about the car and he conceded that to you." Counsel for the prosecution also referred to the evidence of the accused's daughter on the subject of the vehicle owned and used by the accused and his family, but beyond that the subject was not emphasised by the prosecution.
In that context the learned trial Judge, in his summing up, did not refer in detail to the evidence concerning the vehicles used by the appellant and his family at the relevant time when the offence was alleged to be committed.
His Honour said to the jury:
"In relation to count 6, there is of course evidence from … [the complainant's parents] that there was an occasion when the Stalkers came over in separate vehicles and Mr Stalker stayed the night and left. You have to examine that evidence bearing in mind the burden of proof because there is inconsistencies between … [the complainant's parents] as to when that was which may or may not be overcome simply by the crown saying people have varying recollections, because of course it is the crown that must establish its case.
… [the complainant's mother] couldn't say what year it was but she said the steakhouse opened in 1984. She didn't see the vehicles. She didn't at least see the vehicle that Mrs Stalker arrived in, but she said that Barry came in a ute, slept in the extension and was gone in the morning. She was not sure when the extensions were done but you will remember she said that she checked with the council and it was in 1983, although she didn't know how long it took for them to be done. She was specific in cross‑examination:
'I put it that the Stalker family did not come after the extensions were done, whenever it was?---Well, I doubt that.'
She described a ute as being possibly khaki colour and that the accused man had bought it fairly new.
… [the complainant's father], on the other hand, gave evidence that they bought the steakhouse in around 1982, not 1984, and he gave evidence that Carol and the girls arrived in their car and Barry arrived in his, and because something may turn on the vehicle, depending on your view of the evidence, I will just remind you of what he said about the vehicle at page 433:
'I think at the time Carol's car was the green station wagon. That's the one that sticks in my mind most vividly. It was an unusual limey‑green colour and I think to the best of my recollection Barry was in a ute. I think it was a white ute. I stand to be corrected.'
That was his description, for what it is worth. He puts the visit as definitely 1984 and that the renovations were completed in 1982 and he was certain about that. Although Ms Forrester suggested he was all over the shop about dates, it's a matter for you, but you might think that he was actually definite about the dates that he gave. Whether they were right or not is another matter.
The accused of course gave evidence that he was unable to recall particular events, but he gave evidence that none of the events described in the indictment happened. He did not recall seeing … [CS] beyond the age of 10. My recollection is that he was not cross‑examined by counsel for the crown as to his access to a utility over any particular time. His wife was, but my recollection is that he was not. Of course, Mrs Stalker confirms her husband's evidence that they did not visit after the extensions at Willetton were done.
So that is evidence that you are entitled to take into account, of course, like every part of this case. You are entitled to give the evidence of every witness what weight you and you alone determine. You are able to convict the accused on the evidence of … [the complainant's mother], but only if you bear in mind the dangerousness of so doing, and the warning I have given you, for the reasons I have given, that you must scrutinise her evidence with very particular care."
It is also significant that after the jury retired a question was asked concerning the registration number of a vehicle shown in vehicle licence records. The licence number did not match with the licence shown in a photograph that was tendered to the jury. It would appear that the licence plates had changed when the vehicle was sold and a further document had to be produced to the jury to establish the change in registration. The additional evidence was allowed by the learned trial Judge. No ground of appeal challenges the learned trial Judge's decision in that regard. The point, however, is that the jury was acutely aware of the significance of the vehicles and their importance to the overall evidence in the case.
The essential difficulty with the summing up of the learned trial Judge in this case arises from point 7 of the principles set out in the judgment of Owen J in Christophers v The Queen set out earlier in these reasons.
In my view, the learned trial Judge did not point out to the jury the particular features of the evidence relating to the discrepancies to which I have referred, namely, the vehicles owned by the accused and his family at different times, the relevant date discrepancies relating to the purchase of the steakhouse and when the extensions to the complainant's house were completed. That latter aspect, as I have said, was of importance because the event the subject of count 6 was said to have occurred in a room which was part of those extensions. All of that needs to be seen in the context of the date frame in the indictment.
I sympathise with the difficulty that the trial Judge faced in this case in complying with the requirement that the trial Judge should point out "the particular features of the evidence that might have an impact on the reliability of the impugned testimony" (Christophers v The Queen (supra)). In my opinion, in this case the failure to comment on these particular areas of the evidence was fatal to the conviction.
It was submitted on behalf of the appellant that he should have been challenged in the witness box as to whether at the time he had access to more than one car. The appellant's evidence was that he only had and used one car at the time, whilst the prosecution's case was the appellant and his family arrived in two cars, as I have said. It is accepted that the appellant's wife was cross‑examined as to the situation concerning the motor vehicles, but the appellant was not.
I accept that ordinarily it would have been appropriate for the appellant to have been challenged on this aspect of the matter and, indeed, the prosecutor should have done so: Hart v The Queen (1932) 23 Cr App R 202 at 207 and Garrett v Nicholson (1999) 21 WAR 226, per Pidgeon J, at 241.
Whilst I accept that the prosecutor should have put to the appellant the conflict between the Crown case and his evidence in that respect, that of itself, in my view, in this case would not bring about a miscarriage of justice where the appellant's wife was cross‑examined on this critical area of the evidence.

The remaining ground of appeal which requires comment relates to the direction by the learned trial Judge to "commonsense" in the context of the Longman direction. In that respect his Honour said:
"In looking at the reliability of … [the complainant's] evidence you should bear in mind that the longer the delay between the happening of an event and the reporting of it to authorities, the greater the possibility of inaccuracy and error in recollection. That is both commonsense, but it is also a legal direction I give you when considering the evidence."
In BWT (supra) Sully J said, at 273:
"It will be unwise, and more probably than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the commonsense of the jurors would in any event have indicated."
Whilst it may have been preferable for his Honour to have deleted the reference to "commonsense", I am unable to conclude that this ground is made out, bearing in mind the comprehensive and meticulous warnings which the learned trial Judge gave the jury in relation to this area of the summing up.

The final matter for consideration is ground 4 of the grounds of appeal which contends that the verdict of the jury was unsafe and unsatisfactory, as particularised in that ground. This ground relies on M v The Queen (1994) 181 CLR 487 at 493.
The evidence in this case has been outlined earlier in these reasons. Whilst it is correct to say that the prosecution case was not precise as to the date upon which the incident in count 6 occurred, in my view it was sufficiently particularised for the appellant to meet the prosecution case. The verdict of the jury indicates that the jurors must have accepted the complainant's evidence on count 6 which was the latest count in terms of time, even although they did not accept her evidence on the earlier counts or, at least based upon that evidence, they were not satisfied beyond reasonable doubt.
Bearing in mind, as I have said, that count 6 was the only count of rape and that it was open to the jury to conclude that this was the first time the complainant had sexual intercourse, there was a basis upon which the jury could properly have distinguished count 6 from the earlier counts on the indictment.
In all of those circumstances I am not persuaded either that the jury's verdict could be said to be unsafe and unsatisfactory in the terms of M v The Queen (supra) or that the verdicts could be said to be inconsistent: Herbert v The Queen [2002] WASCA 362.
I am not persuaded that this ground of appeal has been made out.
I would allow the appeal and order a retrial.
In view of the conclusion to which I have come, it is not necessary to consider the application for leave to appeal against sentence.
TEMPLEMAN J: I agree with the reasons of Scott J and there is nothing I wish to add.
HASLUCK J: I agree with the reasons for judgment of Scott J and the orders proposed by his Honour whereby the appeal be allowed and a retrial ordered.