TJ v The Queen - [2009] NSWCCA 257

No judgment structure available for this case.

Reported Decision: 197 A Crim R 50876 NSWLR 167

New South Wales

Court of Criminal Appeal

CITATION: TJ v R [2009] NSWCCA 257
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 June 2009

JUDGMENT DATE:
21 October 2009

JUDGMENT OF: McClellan CJatCL at 1; Hidden J at 76; McCallum J at 84

DECISION: By majority: appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal - appeal against conviction - sexual assault - particular grounds of appeal - misdirection and non-direction - direction where accused disadvantaged by delay in complaint - whether Longman warning adequate - requirements of Longman warning - whether a warning required in terms - whether particular words required - INTERPRETATION - amendment to s 294 Criminal Procedure Act - transitional provisions - transitional provisions not to apply to proceedings commenced before the commencement of the amendments - when proceedings commence - WORDS & PHRASES - "proceedings" - "caution" - "warning" - "in terms"

LEGISLATION CITED: Criminal Procedure Act 1986
Criminal Procedure Amendment (Sexual and Other Offences) Act 2006
Crimes Act 1958 (Vic)
Evidence Act 1995
Evidence Act 1906 (WA)

CATEGORY: Principal judgment

CASES CITED: Allerton v Director of Public Prosecutions (1991) NSWLR 24 550
Angliss v The State of Western Australia [2005] WASCA 162
Carroll v The State of Western Australia [2004] WASCA 254
Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106
Crampton v The Queen [2001] HCA 60; (2000) 206 CLR 161
Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169
Doggett v R [2001] HCA 46; (2001) 208 CLR 343
DPW v R [2006] NSWCA 295; 164 A Crim R 583
DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400
Dyers v The Queen (2002) HCA 45; (2002) 210 CLR 285
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Gilham v The Queen [2007] NSWCCA 323; (2007) 178 A Crim R 72
JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187
Longman v The Queen (1989) HCA 60; (1989) 168 CLR 79
R v BDX [2009] VSCA 28; (2009) 194 A Crim R 57
R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241
R v Channell [2002] NSWCCA 187
R v DBG [2002] NSWCCA 328
R v GEA [2002] NSWCCA 222
R v GS [2003] NSWCCA 73
R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263
R v Hull (1989) 16 NSWLR 385
R v Janceski [2005] NSWCCA 281, 64 NSWLR 10
R v Johnston (1998) 45 NSWLR 362
R v Kesisyan [2003] NSWCCA 259
R v Lyberoupolos [2002] NSWCCA 280
R v Nicolaidis (1994) 33 NSWLR 362
R v SJB [2002] NSWCCA 163
R v Taylor (No 2) (2008) 18 VR 613
R v Taylor [2003] NSWCCA 194
R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89
R v WSP [2005] NSWCCA 427
RBK v The Queen [2004] WASCA 216
Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108
Sheehan v R [2006] NSWCCA 233
Spencer [1987] AC 128
Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; 178 A Crim R 133

PARTIES: TJ (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/5927

COUNSEL: A Francis (appellant)
P M Miller (Crown)

SOLICITORS: Nyman Gibson Stewart (appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/41/005

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 12 December 2007

2007/5927

McCLELLAN CJ at CL
HIDDEN J
McCALLUM J
WEDNESDAY 21 OCTOBER 2009

TJ v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted of 16 charges of sexual assault upon three children. There were two trials before the same judge, each with a jury. The first trial was concerned with the allegations by KB and PD and the second with the allegations by AB, KB’s sister. The appellant was sentenced to an overall term of imprisonment of 9½ years with a non-parole period of 6 years. He appeals his conviction but does not seek to challenge his sentence.

2 The appellant was apprehended in Queensland on 1 September 2006 and extradited to NSW. He was charged on 4 September 2006 and committed for trial on 11 December 2006. On 16 May 2007 the Director of Public Prosecutions directed that a number of the charges on which the appellant had been committed should not proceed but at the same time that 2 further charges be laid ex officio, with two existing charges becoming charges in the alternative. On 8 June 2007 it was directed that another 2 of the charges on which he had been committed should not proceed. On 17 August 2007 it was directed that a further charge be laid ex officio with an existing charge becoming a charge in the alternative. The ex officio charges were count 7 on the first indictment and counts 2 and 4 on the second indictment. A separate trial application was made on 20 August 2007, which was granted. The appellant’s trials commenced on 21 August and 4 September 2007 respectively. Ultimately the appellant was found guilty of all 13 counts on the first indictment and counts 5 – 7 on the second indictment. The appellant was acquitted of counts 1 – 4 on the second indictment.

3 In both trials the Crown case was dependent on the jury accepting the uncorroborated accounts of the complainants. The only ground of appeal with respect to each trial is that the trial judge erred in failing to adequately warn the jury in accordance with Longman v The Queen (1989) HCA 60; (1989) 168 CLR 79.

4 The offences with which the appellant was charged were allegedly committed within various periods between 1991 and 1999. There was one exception being a charge for which the period in which the offence was alleged to have been committed was from 18 September 1999 – 17 October 2000. The time between the alleged commission of the offences and the appellant being charged was variously between 6 and 14 years.

Application of s 294 Criminal Procedure Act

5 The Criminal Procedure Act 1986 (“the Act”) in s 294, makes particular provision in relation to sexual offences. Section 294 of the Act was amended by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (“the amending Act”). The amendments effected by that Act commenced on 1 January 2007.

6 Prior to the amendment s 294 provided:

7 The amendments made in January 2007 inserted subsection (c) after s 294(2)(b). That subsection is in the following terms:

“(c) must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.”

8 In addition subsections (3) – (5) were included. They provided:

“(3) However, if:

the Judge may inform the jury (but only if a party to the proceedings so requests) of the nature of the disadvantage and of the need for caution in determining whether to accept, or give any weight to, the evidence or question referred to in subsection (1).

significant forensic disadvantage

9 Subsections (3) – (5) were repealed with effect from 1 January 2009 but were incorporated into s 165B of the Evidence Act 1995, which commenced from the same date.

10 The amending legislation included transitional provisions that are found in Part 12 of Schedule 2 to the amending Act. The relevant provision is in the following terms:

“51 Amendments

Criminal Procedure Amendment (Sexual and Other Offences)

11 As I have indicated, the amending Act commenced on 1 January 2007.

Had the proceedings commenced?

12 The Criminal Procedure Act 1986 provides for a variety of “proceedings” including committal, bail, trial and sentence proceedings. The transitional provisions do not purport to distinguish between them. One controversy in the present case arises from the reference to “proceedings” in the transitional provisions and, in particular, whether the appellant’s “proceedings” had commenced by the time the amendments came into force.

13 A trial on indictment commences when an accused person is arraigned: R v Nicolaidis (1994) 33 NSWLR 362 at 367; Gilham v The Queen [2007] NSWCCA 323; (2007) 178 A Crim R 72 at [78], [172] – [176]. The indictment is the originating process: R v Taylor [2003] NSWCCA 194 at [150], [155] – [156]; R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 at [30]; R v Janceski [2005] NSWCCA 281, 64 NSWLR 10 at [219] – [220]. However, the transitional provision does not operate in relation to trials but rather in relation to “proceedings”.

14 The question of when proceedings commence in the context of the criminal justice system has been considered on a number of occasions. It has been held in NSW that criminal proceedings commence when a person is arrested and charged or an information is laid before a magistrate. In R v Hull (1989) 16 NSWLR 385 Gleeson CJ (with whom Grove and Studdert JJ agreed) said that criminal proceedings ordinarily commence when an accused person is arrested and charged. His Honour described three methods by which proceedings are commenced. He said (at 390):

“Criminal proceedings in this State are ordinarily, although not always, initiated by members of the police force or other officers who are charged with duties in relation to law enforcement. There are, broadly speaking, three methods by which the police or other law enforcement officials ordinarily proceed once a decision has been made that a person should be charged. In serious cases it is common for the proceedings to be commenced by arrests without warrant. A person who has been arrested must be taken before a magistrate without delay. The arrested person may be questioned and then charged. A second method involves the issue by a justice of a warrant for the arrest of a person where an information has been sworn before a justice. Such an information, which is usually laid by a police officer or other law enforcement official, will then result in an issue of a warrant. A third method, which can be used whether the offence in question is indictable or summary, involves the issue by a justice of a summons requiring the appearance in court of the person named in the information.”

15 Allerton v Director of Public Prosecutions (1991) NSWLR 24 550 followed Hull. The Court said that criminal proceedings were instituted when the criminal justice system was put in motion against an accused person, usually by one of the means described in Hull and noted (at 558) that “it is at (the time when the charge is laid) that the person is subject to the constraints of the criminal justice system.”

16 As I have identified the Criminal Procedure Act 1986 operates with respect to a variety of proceedings. However s 294 is only relevant to criminal trials and then only with respect to certain sexual offences. It was submitted by the Crown that because s 294 is only relevant to trials the reference to “proceedings” in the transitional provisions, at least in relation to s 294, should be understood as referring to trial proceedings. Because the trial did not commence until the appellant was arraigned before the jury on 21 August 2007, it was submitted that s 294 including subsections (2)(c) – (5) applied to the appellant’s trials in its amended form.

17 However, the appellant submitted that because other provisions of the amending Act affected proceedings other than trials and extended to committal proceedings the reference to “proceedings” in the present transitional provisions must be understood as the date of the commencement of the criminal process. The appellant drew attention to the fact that when s 294 was subsequently amended the relevant transitional provisions provided that the amendments were not to apply to a proceeding “the hearing of which began before the commencement of the amendment.” The reference to the “hearing of the proceedings”, in the appellant’s submission, indicates that the legislature intended to confine the operation of the amendments to a later trial. Because the instant transitional provision refers to proceedings without reference to a hearing it was submitted that it had a wider application and excluded any case where proceedings had been commenced by 1 January 2007.

18 A similar question has been considered by the Court of Appeal in Victoria. in R v Taylor (No 2) (2008) 18 VR 613. Taylor was concerned with an amendment to the Crimes Act 1958 (Vic) analogous to that under consideration in the present appeal. The Victorian Court of Appeal held that an amendment to s 61 Crimes Act 1958 (Vic) operated in respect of a trial in which a presentment had been filed after the commencement of the amendments although the accused was charged prior to that date. However, the Victorian amendments could only have effect in relation to trials and no other proceedings. As I have indicated the position is different in the present case where the amending Act has effect in relation to a variety of proceedings.

19 In Taylor, Ashley JA (with whom Kellam JA and Hansen AJA agreed) stated at [20]:

“The amendments to (the relevant section) are only relevant to trials by jury of particular categories of criminal matters. (The transitional provision) is directed to the commencement of those provisions. Such trials cannot be held in the magistrate’s court – only in the County Court or the Supreme Court. For a trial to be had in one of those courts, the court must be seised of the matter. It is so seised, most commonly, when presentment is made in that court.”

20 Five judges of the Victorian Court of Appeal confirmed the decision in Taylor in R v BDX [2009] VSCA 28; (2009) 194 A Crim R 57.

21 Although my mind has fluctuated I have ultimately concluded that the transitional provision cannot be confined as was the case in Victoria. The provisions of the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 affect all “proceedings” from committal through to sentencing. The transitional provision applies irrespective of the type of proceeding. Accordingly, to construe the transitional provision as applying only to a trial when considering its operation in relation to s 294 would require it to be given a different meaning than when, for example, considering its operation in relation to committal proceedings.

22 To my mind the only available approach to the meaning of “proceedings” in the transitional provisions, given the variety of contexts in which it must be applied, is that it does not operate with respect to a trial which follows the arrest and charging of the offender before 1 January 2007. The approach in Taylor cannot be applied to the New South Wales legislation (see Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; 178 A Crim R 133).

23 Although the counts commenced by ex-officio indictments were obviously commenced after 1 January 2007 to distinguish between those counts charged before that date and those after it would create impossible complications in a trial. Accordingly, I have concluded that s 294 without amendment was the relevant provision in the present case.

The ground of appeal

24 As I have indicated the same ground of appeal was advanced in respect of each trial. The trial judge accepted that in each case there was a forensic disadvantage occasioned to the appellant because of the delay in complaint. Her Honour made specific reference in the summing up to the difficulties faced by the appellant in the presentation of his defence. This included references to the difficulty in testing the evidence of the complainants, the inability of the defendant to adduce evidence of details about his movements at the time that the alleged offences were committed and the fact that the evidence that may have otherwise been adduced may now be lost. Although I have concluded otherwise, counsel for the appellant stated to her Honour that, “I think Longman has been surpassed by the recent amendments” to which her Honour replied in the affirmative. It appears from this exchange in the trial transcript that the summing up in each trial took the form which it did because of the understanding that s 294 applied in its amended form.

25 It was the appellant’s submission that the directions in each trial, which were very similar in form, failed to satisfactorily convey to the jury the dangers in convicting the appellant in the circumstances prescribed by Longman. The appellant relied on Hayne J’s statement in Crampton at [142]:

Longman

26 While the appellant identified one ground of appeal, namely non-compliance with the requirements of Longman, the appellant contended that her Honour erred in several discrete ways. The substance of the appellant’s submission was that in failing to use the words “dangerous to convict” or words to that effect, her Honour did not signal that there was a real danger inherent in convicting the appellant in light of the disadvantages identified in the summing up. The appellant also submitted that the direction given by her Honour was not cast in the form of a warning but rather a caution, which did not “bear the imprint of the court’s authority and collective wisdom”. The appellant also complained that her Honour effectively “watered down” the meaning of “beyond reasonable doubt” as the standard by which the jury was required to be satisfied of the appellant’s guilt. Her Honour referred to the jury being able to convict if they were “well satisfied” that the evidence of the complainant was true.

27 The appellant makes no complaint about her Honour’s identification of the forensic disadvantage to the jury; the complaint lies in the way in which her Honour directed the jury to consider the evidence in light of these difficulties.

Directions in the first trial

28 As I have indicated there was no dispute in either trial that there had been significant delay in complaint and that the delay may have caused difficulties for the appellant in defending himself. The allegations made by KB and PD covered the period from 18 September 1994 – 17 October 2000. In her summing up the trial judge indicated to the jury that there was no objective evidence that confirmed the testimony of either complainant in relation to the critical events.

29 The trial judge drew the jury’s attention to the lack of corroboration of the evidence of the complainants and instructed them that the Crown case relied on their acceptance of the complainant’s evidence. Her Honour said:

“As I have already stated in this trial, in the case of each charge, the Crown case depends upon you accepting in substance the evidence of one person, either KB or PD. There is no independent, objective evidence confirming the relevant complainant’s testimony as to the critical events. There is only one person in relation to each charge who says that the accused behaved in this way. Therefore, in relation to each charge you should scrutinise the evidence of the complainant, KB or PD, very carefully before determining whether you are prepared to accept her evidence on the critical matters about which she has given evidence. You should examine her evidence in the context of all the other evidence, including the accused’s evidence.”

30 When referring to the delay between the alleged events and complaint, and the possible consequent effect of this on the evidence of the complainants, her Honour said:

“You should consider the delay between the alleged events and the first complaints that were made by each complainant. In the case of KB we are talking around about ten years from episode one, when she was about six, to the conversations with ES and/or JF, even though those conversations were in general terms. That is something you take into account as well. And then there was a delay beyond that of a couple of years until police were spoken to, and then twelve, thirteen months down the track we have the trial. You need to consider whether any of those delays may have meant that the recollection of K, and the same applies with P, the recollection of that witness and her evidence in this trial whether that could in any way be flawed and therefore unreliable … human recollection is often inaccurate and the likelihood of inaccuracy increases as time passes. That is something you need to consider in terms of whether recollection was an honest but mistaken recollection.”

31 With respect to the effect of delay her Honour said:

“Because of the delay in the accused learning of these allegations, he has been prejudiced in the conduct of his defence. I therefore caution you that it may be wrong for you to convict on either complainant’s evidence, unless, after scrutinising her evidence very carefully indeed, you are well satisfied that her evidence was both truthful and accurate. Because of the delay, it has been difficult for the accused to adequately test the evidence of either complainant … The complainants’ inability to recall precise dates of an incident, makes it difficult for the accused to throw doubt on her evidence by pointing to circumstances which contradict what she says occurred on particular dates. You can well imagine that, if a complaint has been made a week later, a particular date has been pinpointed, then, if the accused [was] with somebody else at that particular time, he would have the resources to defend that allegation … Had [he] learned of the allegations soon after the alleged offences, he may have been able to recall relevant details, which his barrister could have used, when cross-examining the complainant in question. He may have been able to find witnesses or marshal other evidence to contradict the complainant. He may have been able to call evidence, indeed, that he was somewhere else at the time

…

32 The trial judge expressly addressed the question of forensic disadvantage experienced by the appellant. After describing the nature of the delay and the practical effect of the passage of time, her Honour said:

“This is what we call a forensic disadvantage, suffered by the accused. The forensic disadvantage does not necessarily apply equally to all of the charges. It may have been a greater disadvantage, for example, in respect of the charges that were a longer period of time in the past. And, for example, in relation to the last charge concerning KB, when she stayed overnight at Coila after her twelfth birthday dinner, this occasion was pinpointed in time and the accused has a relatively clear recollection of this event. So the forensic disadvantage to him in respect of that charge is, of course, quite different from and much less than the forensic disadvantage in respect of other matters where the dating was much more general.”

Directions in the second trial

33 The critical parts of the summing up in the second trial were very similar to those in the first. In the course of her summing up to the jury in the second trial her Honour addressed the issue of corroboration of the complainant’s evidence:

“…there is no independent objective evidence confirming the complainant’s testimony … because the Crown has the onus of proving each of these offences beyond reasonable doubt and because proof of each of the offences depends upon your acceptance of the evidence of A, you should scrutinize her evidence on each charge very carefully before deciding whether you are prepared to accept her evidence on the critical matters about which she gave evidence.

34 Her Honour addressed delay in complaint and its consequences for the accused in the following terms:

“Because of the delay in the accused’s learning of the allegations, he has been prejudiced in the conduct of his defence. I therefore caution you that it may be wrong for you to convict on the complainant’s evidence unless, after scrutinizing her evidence very carefully indeed, you are well satisfied that her evidence was both honest and accurate.

Because of the delay, the complainant’s evidence cannot be adequately tested by the accused. Had the allegations been made and the case prosecuted soon after the alleged incidents, the complainant would be expected to have a clear and detailed memory of events. The complainant’s inability to recall precise dates or details of the circumstances surrounding both of the alleged episodes makes it difficult for the accused to throw doubt on her evidence, by pointing to circumstances which contradict her evidence as to what she said occurred on particular dates, and contradicting details of incidents as she described them. Had the accused learned of the allegations soon after the alleged offences, he may have been able to recall relevant details which his barrister could have used to attack the credibility of the complainant. Further, had the accused learned of the allegations soon after the alleged events, he may have been able to find witnesses or other evidence to contradict the complainant. He may have been able to recall what he was doing at the time and call evidence to support his contention about what he was dong.

In this case, had the accused learned of the complainant’s allegations soon after the alleged events, he may have been able to marshal evidence to contradict the complainant. For example, he said that he was self employed at one stage … he kept records for tax purposes … that sort of record, if he had a precise date, might have been able to assist him to argue or call a witness to say that he was somewhere else at the time on that day when such and such was alleged to have occurred.”

The required direction in New South Wales

35 The form of directions that a trial judge must give in a trial involving allegations of sexual assault has been the subject of considerable discussion in various cases before the amendments to s 294. In most trials for sexual assault the Crown case is confined to the evidence of the complainant. It is also common that complaint is made to the authorities a considerable period after the alleged assault. Further complexities are added when the complainant, as is regrettably too often the case, is a person who alleges that they were assaulted at a young and sometimes very young age.

36 The relevant line of authority in Australia considering the direction to be given in circumstances where an accused person is disadvantaged by a delay in complaint commenced with Longman. In that case the complainant alleged that her stepfather had sexually interfered with her during two periods, the first being from 1962 – 1963 and the second from 1966 – 1967. Complaint was first made in August 1987, constituting a delay of up to 25 years. The case was tried in Western Australia where the Evidence Act 1906 (WA) had been amended to provide that a judge was not required by any rule of law or practice to give a warning to a jury to the effect that it is unsafe to convict on the uncorroborated evidence of a complainant. A warning could only be given where a judge was satisfied that it was justified in the circumstances.

37 Brennan, Dawson and Toohey JJ held notwithstanding the statutory abolition of the rule of practice that had developed, by reason of the disadvantage to the accused occasioned by the delay a strong warning was required to be given by the trial judge. Their Honours’ joint judgment identified the general principle (at 89):

38 Later (at 91) their Honours said that the trial judge was required to give “not merely a comment but a warning.”

39 The frequently cited passage from the joint reasons that established the requirements of the “Longman warning” is (at 91):

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”

40 Deane and McHugh JJ delivered separate judgments. Both of their Honours discussed their view as to the possible unreliability of a child’s recollection and suggested a warning that extended beyond that required by the joint judgment. A warning purporting to address the fragility of youthful recollection and the fallibility of childhood memories as their Honours suggested has been described by Kirby J as “the extended Longman direction”: JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187 at [36]. Spigelman CJ at [2] in the same case identified the so-called “extended direction” as not having authoritative force. The Chief Justice reiterated the view that the statements of Deane and McHugh JJ do not form any part of the “Longman direction” in DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400 at [7].

41 Although in one passage Deane J uses the composite “caution or warning” it is notable that he is the only judge to do so. McHugh J’s judgment is replete with the word “warning”. Insofar as none of the judgments apart from that of Deane J refer to a “caution” it would seem although I accept that the contrary is open the majority contemplated that the trial judge should given a “warning” in terms.

42 The issue was again considered by the High Court in Crampton v R (2000) HCA 60; (2000) 206 CLR 161. Crampton was concerned with an uncorroborated complaint made approximately 19 years after the relevant event was alleged to have occurred. The trial judge in that case did not use the word “warning” and made no reference to the danger, given the delay, of the jury acting on the uncorroborated evidence of the complainant. In this Court the direction was accepted to be appropriate. It was described by Barr J, who wrote the leading judgment as a “compact summing up that contained several appropriate warnings”.

43 The High Court took a different view.

44 Gaudron, Gummow and Callinan JJ wrote a joint judgment. Their Honours considered the passage in Longman at p 91 and said at [44] – [45]:

“As the appellant submits, the first reference by the trial judge to delay was followed by an observation which could have diminished the effect of the caution - it did fall short of a warning - against acting on the evidence of the complainant of a complaint so long delayed. To say what her Honour did in the first passage from her summing up that we have quoted was to say too little, too unemphatically, and less than what Longman required be said in the circumstances of this case. The redirection, which we have also quoted, suffered from some of the same or similar deficiencies.

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."

45 Kirby J drew the distinction between a warning and a comment, which his Honour said carries less force at [126]:

Comment

Warnings

46 His Honour continued:

“In view of my primary conclusion, it is not obligatory upon me to elaborate my views concerning the warning required in the present case. However, as otherwise the disposal of that question by the Court of Criminal Appeal might be thought to be correct, I should say that I consider that the directions in this case were defective by the standards of Longman . I say this with respect to the trial judge whose conduct of the trial was otherwise admirably fair.

The warning in a case involving a long delay between an alleged offence and a complaint is, in part, an element in the balance required by the law in such matters. In overseas jurisdictions courts have been more willing than they appear to have been in Australia to provide a permanent stay of proceedings to protect accused persons from the injustices that can arise in attempting to mount a defence to such charges years, or even decades, after an alleged offence occurred. But this has been so, in part, because Australian courts know that Longman obliges trial judges, in cases such as the present, not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial.

The warning required by Longman must be, in the words of the joint reasons in this case, "unmistakable and firm". It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after twenty years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, twenty years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant.
Twenty years after the alleged offence, the first complainant was an adult whose life's experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability. Repeated answers to questions, searching the detail of the first complainant's testimony, such as ‘I can't remember’ or ‘it's too long ago’ made it extremely difficult to test that evidence in an effective way.

The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. That idea is contrary to the repeated authority of this court in and since Longman . The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time — especially great time — may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms.”
(The emphasis is that of Kirby J)

47 Hayne J wrote a separate judgment. His Honour criticised the approach taken by this Court. His Honour stated that it was insufficient to view Longman as requiring that a trial judge must “bring home to the jury the need for caution and careful examination of the evidence” or that the delay in complaint posed some difficulties for the accused. His Honour said that this did not reflect what Longman required. His Honour described those requirements in the following passage (at [142]):

“But what has come to be known as a " Longman warning" is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. That warning was not given.”

48 His Honour continued:

Longman

49 The contrast with his Honour’s language in [142] and that in [143] is plain. Amongst other matters his Honour italicised the word “warning” in [142]. He does not accept that a caution is appropriate and said this Court erred when it accepted that the obligation in Longman was fulfilled by bringing home to the jury the need for caution.

50 In Doggett v R [2001] HCA 46; (2001) 208 CLR 343 the High Court returned to these issues. That case was distinguished by the fact that unlike Longman and Crampton, Doggett concerned a situation where, despite significant delay in complaint being made, there was evidence capable of corroborating the account of the complainant in the form of a recorded conversation between the complainant and the alleged offender. The majority (Gaudron, Callinan and Kirby JJ, Gleeson CJ and McHugh J dissenting) held that the presence of evidence capable of corroborating the account of the complainant did not of itself obviate the need for a Longman direction: [51] per Gaudron and Callinan JJ.

51 The question of the requirements of Longman have been considered in this Court on a number of occasions. In R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 Sully J (with whom Wood CJ at CL and Dowd J agreed) provided at [95] of what his Honour described as “practical guidelines” to be observed by trial judges. His Honour, having considered the High Court decisions, identified at [95], subparagraph (3), a series of characteristics that must manifest in a direction in order for it to satisfy the requirements of Longman. His Honour’s reasons have particular significance as they were endorsed by Kirby J with whom McHugh J expressly agreed in Dyers v The Queen (2002) HCA 45; (2002) 210 CLR 285 at [55] (see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134]). Sully J said:

warning

comment

caution

Longman

warning

Longman

“that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy.”

The approach of the majority Justices in both Crampton and Doggett seems to me to entail that a trial Judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: first , that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly , that it would be, therefore, dangerous to convict on that evidence alone; thirdly , that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly , that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly , that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant’s evidence; and sixthly , that every stage of the carrying out of that scrutiny of the complainant’s evidence must take serious account of the warning as to the dangers of conviction.

…

52 The endorsement by Kirby J was in the following terms:

Longman

Jones v The Queen

Crampton v The Queen

Doggett v The Queen

Longman

R v BWT

(1998) 45 NSWLR 362 was decided before the High Court decisions in Crampton and Doggett. Spigelman CJ (with whom Sully and Ireland JJ agreed) described the basic requirements of the warning at [17]:

why

how

“Dangerous to convict” requirement

54 This Court has applied the dicta of Sully J in BWT on many occasions. The appellant relied upon them in the present case. Sully J was firmly of the view that the specific words that it would be “dangerous to convict” form an essential part of the warning. His Honour reiterated that view in WSP at [85] subparagraph (4) and said that the failure to give a “dangerous to convict” direction where it is warranted constitutes a miscarriage of justice: WSP at [93].

55 Notwithstanding the guidance provided by BWT, later decisions of this Court including DRE have determined that there remains significant flexibility in the precise words to be used by the trial judge and that no set form of words is required in giving the warning. The adequacy of the direction must be considered in the context of the proceedings: DRE at [14] per Spigelman CJ; R v DBG [2002] NSWCCA 328 at [30] per Howie J; R v Kesisyan [2003] NSWCCA 259 at [8] per Meagher JA.

56 Simpson J made the following observation in DRE v The Queen [2006] NSWCCA 280; (2006) 164 A Crim R 400 at [59] – [60]:

“Although many may have made the attempt, no definitive statement of the minimum requirements of a Longman direction has yet emerged. In particular, there is no unanimity, and no definitive decision, on whether the principle mandates the use of the formula “dangerous to convict” and whether ‘unsafe to convict’ is its equivalent.

Longman

Crampton

57 In DRE Spigelman CJ observed at [14] that the requirements of Longman are such that there exists a temptation to parse and analyse the content of the summing up to suit the appellant’s submission. The Chief Justice was of the view that it is a temptation that ought to be resisted and that in determining the appropriate form of the direction, it remains important to understand the whole of the context in which the warning must be given.

58 The critical consideration when assessing the adequacy of an impugned Longman direction is not whether a particular form of words is used in conformity with the joint judgment in Longman but whether the substance of the direction given by the trial judge in the context and circumstances of the particular case conveyed the necessary features of the warning as prescribed by the High Court.

59 Decisions of this Court confirm that the particular words “dangerous to convict” are not an essential requirement of the Longman direction: R v WSP [2005] NSWCCA 427, Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at [16] - [19] per Spigelman CJ, DPW v R [2006] NSWCA 295; 164 A Crim R 583 at [24] per Barr J, Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 at [180] per Johnson J. Whether those words ought to form part of the direction will depend upon the circumstances of the particular case: Sepulveda at [180]. In some circumstances the use of the words “dangerous to convict” may be undesirable. A potential unintended consequence of the use of the “dangerous to convict” formulation is that the jury may incorrectly understand those words to be in effect a direction to acquit: Robinson at [19].

60 To my mind the use of the phrase “wrong to convict” by the trial judge in each of the appellant’s trials was satisfactory in the present circumstances. The trial judge gave both juries a lengthy dissertation with respect to the difficulties faced by the appellant. By being told that it may be “wrong to convict” the appellant in those circumstances the jury was adequately warned that it risked error if it did not pay heed to the direction: Sheehan v R [2006] NSWCCA 233 at [111] per Kirby J. The direction conveyed to the jury that it risked a miscarriage of justice if it convicted the appellant without scrutinising very carefully the evidence of the complainants. To my mind nothing was lost to the appellant by the use of those words as an alternative to “dangerous to convict”.

Requirement that a “warning” be given

61 The appellant submitted that the direction given by her Honour was not expressly described as “warning” but rather was expressed as a “caution”, which did not “bear the imprint of the court’s authority and collective wisdom” concerning the dangers of convicting the appellant in circumstances where he was disadvantaged by considerable delay.

62 As I have indicated above, the decisions of this Court confirm that a trial judge is not constrained to a particular formulation of the substance of the warning when delivering a Longman direction to a jury. The trial judge must adapt the summing up to conform to the circumstances of the case at hand. However, there is a distinction to be drawn between the requirement that the direction be expressed as a “warning”, that word being used, and the content of that warning. When the question has arisen this Court has required the direction to include the word “warning”. I refer to these decisions in the following paragraphs. This approach conforms with the statements in Crampton by Kirby J at [125]-[129] and Hayne J at [142] that the direction must be expressed in the terms of a “warning” confirmed by Kirby J’s endorsement in Dyers of the judgment of Sully J. in BWT. I repeat portion of Sully J’s remarks:

warning

comment,

caution

Longman

warning.

63 His Honour further observed:

“(c) Not only must the substance of the warning be carefully and correctly focussed, but the form of the warning, also, must be carefully and correctly framed.”

64 In R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89, Kirby J (with whom Greg James J agreed, Hodgson JA dissenting) considered BWT. The alleged shortcomings of the direction given in that case included a failure to give a “warning”. His Honour said at [146]:

“The directions given in the first trial, in my view, plainly did not conform, or substantially conform, to these requirements. The direction was not framed as a warning.”

65 In JJB [2006] NSWCCA 126; 161 A Crim R 187 Kirby J cited BWT and observed at [42]:

or a caution

(emphasis added)

66 Spigelman CJ has indicated that the requirement to administer a “warning” in terms is a strict one. This is made plain in DRE [2006] NSWCCA 280; 164 A Crim R 400 (at [18]). His Honour contrasted the position in New South Wales with Western Australia: Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 at [37]; Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169 at [1], [30] - [31]; RBK v The Queen [2004] WASCA 216 at [34]; Angliss v The State of Western Australia [2005] WASCA 162 at [15]; Carroll v The State of Western Australia [2004] WASCA 254 at [184] - [185]. The Chief Justice said:

R v BWT

R v WSP

67 In WSP, the trial judge told the jury that she was administering a warning. However complaint was made that the direction that followed was not in substance a warning but was in the nature of a comment or caution: [177]. This Court decided that despite purporting to give a warning, her Honour’s direction did not carry the strength of a warning and was accordingly insufficient: [183]. It follows that even where the word “warning” is used the requirement that the direction carry the force of a warning is a stringent one.

68 Resort to a dictionary indicates that in some circumstances the words “caution” and “warning” are synonymous. However, when, to my mind a judge is providing directions to a jury about the necessary approach to assessing the evidence against an accused a “caution” delivered by the judge has significantly less force than a “warning”. A caution as to a prospective danger is less diverting than a warning. So much is plain from the language used on public signage and in many other areas of human discourse.

Determination of the present appeal

69 The critical portion of her Honour’s summing up in the first trial is extracted above at [31]. I repeat it:

“I therefore caution you that it may be wrong for you to convict on either complainant’s evidence, unless, after scrutinising her evidence very carefully indeed, you are well satisfied that her evidence was both truthful and accurate.”

70 The relevant excerpt from the second trial is almost identical and appears above at [34]:

“I therefore caution you that it may be wrong for you to convict on the complainant’s evidence unless, after scrutinizing her evidence very carefully indeed, you are well satisfied that her evidence was both honest and accurate.”

71 The direction was framed as a “caution” and not as a “warning” and accordingly it lacked the force required by the High Court in both Longman and Crampton. Although some people were of the view that the High Court may have been excessively cautious, a view reflected in the subsequent legislative intervention, in this case the trial judge was bound to frame the direction in the terms of a warning rather than a caution.

72 There is one further matter. The delay in the present case was not of the order in Longman and Crampton. However the Crown case was confined to the evidence of the complainants. Before the jury could convict the appellant in either case they were required to be satisfied of the complainant’s evidence beyond reasonable doubt. It was not, as her Honour said, that it may be wrong for the jury to convict unless well satisfied of the complainant’s evidence. Rather it was not open to them to convict unless satisfied of the complainant’s evidence to the relevant standard. The use of the words “may” and “well satisfied” reduced the force of the direction which was already diminished by being expressed as a caution. In the context of the trials and applying the approach required by the High Court, the direction given did not ensure that the appellant received a fair trial.

Rule 4

73 There was no objection to or request for redirection made by counsel for the appellant following her Honour’s summing up to the jury and rule 4 of the Criminal Appeal Rules applies. The lack of an objection or request was no doubt due to the fact that both the judge and counsel were operating under the assumption that the amendments to s 294 applied to the trials. Nevertheless the appellant submitted to this Court that the failure to give directions which complied with the law relevant to his trials meant that they had miscarried and this Court should intervene.

74 In many cases of sexual assault where the issue in the appeal has been the deficiency of the direction given by the trial judge a conviction has been set aside. Because the Crown case is generally confined to the evidence of a complainant a deficiency in the directions with respect to that evidence is likely to lead to that outcome. As I have already indicated in the present matters the Crown case was entirely dependent on the complainant’s evidence. The jury did not have appropriate guidance when considering the complainants’ evidence with the consequence that the conviction must be set aside and new trials ordered. To my mind the deficiencies in her Honour’s directions were such that irrespective of the failure of counsel to take the point the trial has miscarried and this Court must intervene: R v Lyberoupolos [2002] NSWCCA 280 at [53].

Orders

75 In my opinion leave to appeal should be granted and the appeal upheld. The convictions should be quashed and new trials should be ordered.

76 HIDDEN J: I have had the advantage of reading in draft the judgments of McClellan CJ at CL and McCallum J. I agree with the Chief Judge’s conclusion that this case was subject to s 294 of the Criminal Procedure Act 1986 as it stood before the commencement of the 2006 amendments. However, I agree with McCallum J that the appeal should be dismissed for the reasons her Honour has given. The Longman direction in each trial was adequate.

77 The distinction made in the High Court authorities between a comment or caution, on the one hand, and a warning, on the other, reflects the twofold requirement of a Longman direction: firstly, to convey to the jury the need for careful assessment of the evidence because of the forensic disadvantage occasioned to the accused by delay and, secondly, to alert the jury expressly to the consequent risk of wrongful conviction. The directions of the trial judge in the present case met both of those requirements.

78 I agree with McCallum J that the proposition that the second requirement necessitates the use of the word “warn” or “warning”, and that no synonymous expression would suffice, is not supported by authority in the High Court or in this Court. It is not to the point that the word “warning” is consistently used in the various judgments in the High Court (or that in passages of the judgments of Kirby and Hayne JJ in Crampton the word is italicised). In particular, I agree with McCallum J that what Sully J had to say in BWT at [95] (3)(a) was directed to the substance of the warning and did not dictate that the word “warning” (or its grammatical variants) should be invariably used. Such a requirement would be inconsistent with the flexibility in the expression of the warning recognised in the decisions of this Court to which the Chief Judge has referred.

79 Nor should the endorsement of Sully J’s judgment by Kirby J in Dyers be understood as embracing such a requirement. In Dyers itself the trial judge had commented to the jury upon the effect of delay but had said nothing which could amount to a warning in the relevant sense: the passage from the summing-up is set out in the judgment of Callinan J at [111]. Callinan J held that, in the circumstances of the case, what the judge had said about delay was sufficient: [130]. Kirby J was of the same view, concluding that, while it would have been prudent for the judge to have given a warning, the jury’s verdict should not be disturbed on that ground alone: [58]. As I understand it, it was with that reasoning of Kirby J that McHugh J expressed his agreement at [47].

80 As the Chief Judge has said, and as one would expect, Sully J’s useful analysis of the authorities in BWT has been referred to in a number of subsequent decisions of this Court. However, I agree with McCallum J’s analysis of those decisions. For the most part, in the appeals which succeeded on the basis of an inadequate Longman direction, the complaint was that the directions amounted to comment but did not convey a warning at all. The impugned passages from the summing-up in each case are to be found in BWT itself at [63] (8), in SJB at [33], in WRC at [127] and [129], and in GEA at [4]. In WSP, the court was concerned with the adequacy of what purported to be a warning but whether the word “warning” was used was not an issue. GS turned on an aspect of the direction which is not relevant for present purposes.

81 In particular, I agree with McCallum J’s analysis of the decision in DRE. It is apparent from Simpson J’s summary of the appellant’s arguments in that case at [68] that the failure to use the term “warning” at the relevant point in the trial judge’s directions did not loom large. It was but one of a number of complaints which founded a submission that the directions as a whole failed to provide the emphatic guidance which Longman requires. It formed no part of the reasoning of Adams J in concluding that the directions were inadequate. It achieved prominence only in the judgment of Spigelman CJ, but I agree with McCallum J about the way in which the Chief Justice’s observations should be understood. Certainly, the judgment is far from an adequate foundation for a principle that the use of the term “warning” is essential.

82 The Chief Judge refers to DPW and Sepulveda, in which it was held that the expression “dangerous to convict” is not essential and, indeed, may be undesirable. In both cases reference was made to observations to that effect by Spigelman CJ in Robinson (which was not a sexual assault case). However, it might be noted that, yet again, the directions in both cases amounted to comment but did not contain a warning: relevant passages of the summing-up are to be found in DPW at [13] and Sepulveda at [154] – [156] and [159] – [161]. Nevertheless, in each case the Court found that, in the circumstances, the directions were adequate.

83 I agree with McCallum J that the trial judge’s use of the word “may” and the expression “well satisfied” did not reduce the force of her directions.

84 McCALLUM J: I have had the benefit of reading the judgment of McClellan CJ at CL in draft. I share his Honour’s view that the transitional provisions in respect of the 2006 amendments to the Criminal Procedure Act 1986 should not be construed so as to have different meanings in different contexts. I agree with his Honour’s conclusion on that basis that the applicable provision in the present case was s 294 of the Act as it stood prior to the commencement of the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006.

85 In the circumstances of the present case, the consequence is that a Longman direction was required, contrary to the view expressed by counsel for the appellant at the first trial (T609). The Chief Judge has reached the conclusion that the direction given by the trial Judge in each trial lacked the force required of such a direction.

86 The reasons of the Chief Judge turn on his Honour’s conclusion that the direction was framed as a “caution” and not as a “warning”, together with his Honour’s view that the use of the words “may” and “well satisfied” further reduced the force of the direction. With great respect to his Honour, I do not agree.

87 As to the first matter, his Honour has expressed the view that, although a trial Judge is not constrained to a particular formulation of the substance of the warning, the authorities require a Longman direction to include the word “warning”. I have reached a different view on that issue.

88 The joint judgment in Longman (Brennan, Dawson and Toohey JJ) drew a distinction between a “warning” and a “comment”. Their Honours said at 91:

Reg. v. Spencer.

89 The footnote cites page 141 of Spencer [1987] AC 128 where Lord Ackner explained the rationale for an obligatory “full warning” in certain circumstances by reference to the fact that the risk in question may not be apparent to the jury. A consideration of the speeches of Lord Hailsham of St Marylebone (especially at 134G) and Lord Ackner (especially at 138) in Spencer confirms the likelihood that the distinction intended to be referred to in the joint judgment in Longman was between, on the one hand, comment or advice as to the need to proceed with caution and, on the other hand, a specific warning to the jury of “the dangers they would be incurring if they did not do so” (Spencer at 134H).

90 It may be noted in passing that, in his separate judgment in Longman, Deane J used the terms “caution” and “warning” apparently as synonyms.

91 The suggestion in later authorities that a “caution” is something less than a “warning” (and more like mere comment) appears to have its genesis in the adoption of the word “caution” to describe the comments made by the Judge to the jury in the trial of Alan Crampton. In the decision of the High Court in Crampton, it was said at [44] of the joint judgment (Gaudron, Gummow and Callinan JJ) (my emphasis):

it did fall short of a warning

92 In order to understand the import of the distinction drawn in that passage, it is necessary to consider the comments of the trial Judge in full. They are set out at paragraphs [32] and [33] of the joint judgment as follows (with my emphasis of the key passages):

Clearly you have to look carefully

It is important that you look

Late complaint, of course, necessarily has some potential disadvantages to the accused because it reduces his opportunity to explore the matters complained of in some ways or it has that potential. First of all, of course, memory of events tends to decrease and become vaguer. However, in this case, the accused says it did not happen. Not only did it not happen, there was never an opportunity for it to happen, never an occasion when it could have happened, never an occasion when there could have been a misunderstanding about what was happening. It is quite clear that the accused says there is no occasion of this nature or occasion when it might have been misunderstood. Two things arise, of course, when there is a delay in complaint. One is the opportunity of the accused perhaps to look at matters which were happening at about that time and to raise them in evidence. Also, the capacity of the complainants to be accurate is probably reduced and that may raise some greater difficulty in cross-examination of them. It may also, of course, explain some errors in the recollection.’

33 Counsel for the appellant asked her Honour to give redirections in respect of the passage we have quoted. The submission was that her Honour's directions fell short of what the decision of this Court in Longman v The Queen required. Her Honour acceded to the submission by giving a redirection in these terms:

Finally, I just want to make it very clear about this, the matters are to be looked at separately

You must take that into account

You are going to consider motive, the opportunity to concoct, the reason why that might be. You are going to look very carefully at the nature and circumstances in which that complaint came into existence. Those are all matters that you will bear in mind when you consider the case for the accused

93 Having regard to the terms of that direction, it is apparent that the distinction drawn in the joint judgment was between a formulation of the kind “clearly you have to look carefully at the circumstances” (labelled a “caution” in the joint judgment), and the Longman formulation, “it would be dangerous to convict” (which attracted the label of a “warning”). The subsequent use of the term “caution” to describe something less than a “warning” appears to derive from that passage. It does not follow, however, that the use of the phrase “I caution you” instead of the phrase “I warn you” will necessarily give a direction the characterisation of mere comment, or mean that it does not amount to a warning in substance.

94 Earlier in the joint judgment, their Honours had expressly acknowledged that the distinction drawn in the well-known passage in Longman at 91 is between circumstances which invite “comment” and “those in respect of which a warning is imperative”: at [39].

95 In a separate judgment in Crampton, Kirby J also noted the distinction made by the majority in Longman between comment and a warning. His Honour said at [126]:

“Comment

Warnings

96 Hayne J, similarly, drew a distinction between judicial comment and warning. His Honour stated at [142]:

Longman

97 The requirements of the Longman direction were next considered by the High Court in Doggett. That case was concerned with a trial in which the trial Judge told the jury that they should scrutinise the complainant’s evidence very carefully, but did not warn the jury of the danger, given the delay between the alleged offences and the complaint, of convicting on the complainant’s evidence. The judgments in Doggett consistently use the term “a Longman warning”, but do not hold that the direction must include the word “warning”.

98 The principles stated by Sully J in BWT were distilled from his Honour’s careful survey of the decisions of the High Court in Longman, Crampton and Doggett. As noted by the Chief Judge in the present case, they include the following proposition at [95] (subparagraph [3]):

Longman

must

Longman

Crampton

Doggett

warning

comment

caution

Longman

warning

99 I do not read that passage as a statement of principle that a Longman direction must be preceded by the word “warn” or “warning”. Those are not the only words or forms of expression by which the import of a warning is capable of being conveyed.

100 The distinction drawn by Sully J is between a direction framed “in terms” as a warning and a form of expression having the character of a comment or a caution. His Honour’s reference to a form of expression having the character of a “caution” must, in my view, be understood in the context of the terms of the direction given that description in the joint judgment in Crampton.

101 I do not think that the judgment of Sully J in BWT holds that a direction may only be “framed, in terms, as a warning” by use of the word “warn” or “warning”. As noted in the judgment of the Chief Judge, no set form of words is required in order to give an adequate Longman direction, and that has been acknowledged by Sully J himself: see R v Kesisyan [2003] NSWCCA 259 at [20]. His Honour there emphasised (at [21]) that the essential task is to ensure that the substance of what is conveyed accords with the substance of the principles established by the decision in BWT.

102 The essence of the distinction between a direction having the character of comment or a caution and a direction framed as a warning lies in the requirement for a warning to identify and explain the risk or danger inherent in the trial as one the recognition of which derives from the Court’s specialised or accumulated experience, as opposed to merely advising the jury to “take care” or “use caution” in a particular aspect of the case: see for example Longman at 91.2 (joint judgment) and at 95.9 to 96.1 per Deane J; Crampton at [126] per Kirby J; Doggett at [85] per McHugh J.

103 I accept that the principles stated by Sully J in BWT have been applied in a number of decisions of this Court, including those referred to by the Chief Judge. However, none of those cases, in my view, is authority for the proposition that a Longman direction must use the word “warn” or “warning” in order to satisfy the requirement expressed by Sully J that it be “framed, in terms, as a warning”.

104 BWT was first applied in this Court in R vSJB [2002] NSWCCA 163 (it was cited with approval two weeks earlier in R v Channell [2002] NSWCCA 187 but the judgment in that case does not disclose what the deficiency in the impugned direction was). In SJB, the Court’s decision turned on the trial Judge’s failure to incorporate, in his direction, the proposition that it would be “dangerous to convict”: [2002] NSWCCA 163; (2002) A Crim R 572 at [53] per Levine J, Sheller JA and Simpson J agreeing.

105 Similarly, the decision of this Court in R vGEA [2002] NSWCCA 222 turned on the absence of any warning of the relevant danger. The trial Judge had introduced the direction with the words, “There is one other warning I have got to give you…” The Judge proceeded to note the period of delay between the alleged events and the trial and pointed to the forensic difficulties caused by that delay. His Honour told the jury that they should carefully consider those factors when assessing the evidence and the witnesses and the weight to be given to the evidence of the witnesses.

106 In upholding the appeal against conviction, Hidden J said at [10] (Heydon JA and Blanche AJ agreeing):

“What does concern me, however, is that at no stage did his Honour warn the jury of the danger of convicting arising from the delay and the consequent need for careful scrutiny of the complainant’s evidence. Nor did his Honour refer to the effect upon the reliability of the complainant’s evidence of the delay, having regard to his relative youth.”

107 The Court’s approach in that case looked to the sufficiency of the direction according to its substance, notwithstanding the terms in which it had been introduced by the trial Judge; see also DBG [2002] NSWCCA 328 especially at [30] and [39] per Howie J; Meagher JA and Simpson J agreeing.

108 In the decision in WRC (cited by the Chief Judge), Kirby J concluded that the direction given by the trial Judge was “not framed as a warning”: at [146]. Hodgson JA agreed that the directions given were inadequate: at [102]. The relevant direction is set out at [127] of the judgment. The trial Judge said:

“There is also one other matter that I bring to your attention, in which the law requires me to bring to your attention and it is a matter that has been also referred to you by counsel for the accused.”

109 The Judge proceeded to tell the jury that because of the delay between the time when the events were alleged to have occurred and the time the allegations were brought to police, “the accused has necessarily had difficulties in meeting those allegations”. His Honour identified some of the forensic difficulties resulting from the delay and concluded:

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

110 The conclusion that those remarks were not framed as a warning was, with respect, plainly correct.

was a case in which an appeal against conviction was dismissed without extensive discussion of the particular grounds on which the Longman direction was sought to be impugned. The main judgment was given by Meagher JA, who stated at [8]:

“No specific words are required in a Longman direction and as long as the essential purpose of the direction is performed, that is all the judge needs to do.”

112 Sully J agreed, “in the sense that BWT need not be understood as laying down an exact form of words” but emphasised that it is essential for trial Judges to ensure that the substance of what is conveyed accords with the substance of the principles stated in BWT (at [20] to [21]).

113 R v GS [2003] NSWCCA 73 was a decision of this Court which turned principally on the fact that the Judge had told the jury that they should ask themselves whether the accused had lost a chance of obtaining a fair trial by reason of the delay. The vice of that formulation was compounded when his Honour stated that they should ask themselves whether the accused had been put at a disadvantage by the delay or whether it was “difficult for him now to prove his innocence”: at [8].

114 Buddin J expressed the view that the warning should not have been formulated as a question for the jury to ask themselves and concluded that the direction represented a departure from the requirements of Longman (at [28], Smart AJ and Santow JA agreeing).

115 The Chief Judge has emphasised the statement of Kirby J in JJB [2006] NSWCCA 126 at [42] that “there must be a warning, not simply a comment or a caution”. I think Kirby J was, however, simply paraphrasing the relevant part of the summary of the principles stated by Sully J in BWT. It was not contended in that case that the direction had not been framed as a warning.

116 WSP [2005] NSWCCA 427 was heard by Spigelman CJ and Sully and RS Hulme JJ. In that case, the trial Judge had identified the gap of 13 years between the alleged offences and the time when the accused was formally charged. The Judge said, “In those circumstances it is most important that I give you these warnings” (at [175]). Her Honour proceeded to emphasise the importance of appreciating the effects of the delay on the ability of the accused to defend himself by testing the evidence. She told the jury that they could only convict the accused if they were satisfied beyond reasonable doubt about the truth and reliability of the complainant’s evidence.

117 The Judge did not, however, include a formulation of the kind “it would be dangerous to convict”. Hulme J concluded that, in the circumstances of that case, the jury should have been instructed in that form: at [181]. Hulme J also thought that the warning lacked the strength to conform to the last requirement identified in the summary of principles stated by Sully J in BWT, namely, that “the form of the warning must be such as bears unmistakably the imprint of the court’s own authority”: at [182]-[183].

118 Sully J also concluded that the Longman direction as given was insufficient: at [73]. Spigelman CJ dissented. His Honour stated (at [3]) that the analysis in BWT had not been adopted in other cases, but concluded in any event that the direction under consideration met its requirements, expressing the view that to say the jury “can only convict if” is more forceful than to say it would be “dangerous to convict unless”. His Honour reiterated that it is “wrong to treat any judicial statement, even in a judgment of the High Court, as the equivalent of a statutory formula” (at [13]). The judgment of Sully J included a firm rebuttal (with his Honour’s customary grace) of the proposition that BWT had not been adopted in other cases (at [77] to [92]).

[2006] NSWCCA 280 was decided the following year. The direction given by the trial Judge in that case is set out at [110] of the decision. The trial Judge had said to the jury that the accused had lost certain opportunities to challenge the complainant’s evidence. After giving some examples of how these opportunities may have been lost, his Honour continued (my emphasis):

in extenso

but I am required to remind you of these disadvantages

having borne this warning in mind

cautions

120 The appellant’s arguments on appeal (summarised by Simpson J at [68]) included complaint as to the absence of any express “warning” and the use, instead, of the phrase “but I am required to remind you of these disadvantages”. Complaint was also made as to the use of the word “cautions” which it was contended was inadequate to meet the requirement that a “warning” be given.

121 Spigelman CJ stated (my emphasis):

what must be conveyed to the jury is a “warning” in terms

R v BWT

R v WSP

122 His Honour’s statement that what must be conveyed is a “warning” in terms suggests acceptance of the proposition that the word “warning” must be used. I note that, in BWT, Sully J had not used inverted commas around the word “warning”. His Honour said that the trial Judge ought to ensure that the direction is framed, in terms, as a warning.

123 I accept that Spigelman CJ appears (at [18] to [22] of the judgment) to assume as a premise that the decision in BWT does require the trial Judge to use the word “warning” in a Longman direction. Whether his Honour accepted that premise is less clear (particularly having regard to his dissenting judgment in WSP). The relevant remarks in DRE were made in the context that his Honour would have refused leave to argue the point under rule 4, and would in any event have rejected it because the trial Judge had used the word “warning”, albeit not at the outset of the direction.

124 More significantly, however, his Honour then stated:

BWT

R v Kesisyan

Longman

WSP

Longman

WSP

Longman

125 Simpson J expressly rejected the complaint about the force of the word “remind” in place of “warn” and the word “cautions” in place of “warnings” (at [76]-[77] and [80]). Her Honour concluded that the direction adequately brought home to the jury the disadvantages suffered by the appellant by reason of the delay in the bringing of the allegations (at [81]). Adams J dissented, finding that the direction given was inadequate.

126 I find it difficult to accept, from my survey of the relevant authorities, that although no specific words are otherwise required in a Longman direction, it must nonetheless include the word “warning”. I have reached the conclusion that the use of the word “warning” is neither necessary nor always sufficient to satisfy the requirement stated in BWT at [95] that a Longman direction be framed “in terms” as a warning.

127 I do not think my conclusion on that issue ignores the rebuke in Farah Constructions at [134] referred to by the Chief Judge. For my part, I doubt whether McHugh J in Dyers at [47] is to be taken as having impliedly endorsed what Sully J said at [95] in BWT (but cf WSP at [92]). In any event, I do not disregard the dicta of Kirby J in Dyers at [55]. In accordance with those views, I accept the correctness of the analysis of Sully J in BWT as a premise of the conclusion I have reached. Where my view differs from that of the Chief Judge is that I do not regard BWT as authority for the proposition that the word “warning” or “warn” must be used to satisfy the requirements of Longman.

128 For my part, I see no difference in the force of the phrase “I therefore caution you that it may be wrong for you to convict” and the phrase “I therefore warn you that it would be dangerous for you to convict”. Both, in my view, are sufficient to satisfy the requirement for the direction to be cast in the form of an authoritative judicial warning of the dangers inherent in the trial.

129 The second issue raised by the Chief Judge is whether the use of the word “may” in the phrase “it may be wrong” and the words “well satisfied” reduced the force of the direction. The concern expressed by the Chief Judge is that the terms of that direction were not correct, the true legal position being that it was not open to the jury to convict unless satisfied of the complainant’s evidence to the relevant standard.

130 I do not think either jury can have been under any misapprehension in that respect. Each jury had been told repeatedly of the relevant standard. Specifically, they had been told that, in relation to the charges in the cases before them, the “practical reality” was that they would have to be satisfied beyond reasonable doubt that each complainant was being truthful in relation to the critical matters about which she gave evidence (30 August 2007 at T7-8; 7 September 2007 at T6).

131 The impugned passage of the Judge’s directions would not, in my view, have been understood to derogate from that constraint. The complete phrase used by the Judge was “[b]ecause of the delay in the accused learning of these allegations, he has been prejudiced in the conduct of his defence. I therefore caution you that it may be wrong for you to convict on the complainant’s evidence unless, after scrutinising her evidence very carefully indeed, you are well satisfied that her evidence was both truthful and accurate”. Indeed, the term “well satisfied” was stronger than the words “were satisfied” used in the judgment in Longman itself.

132 I think the jury would have understood that part of her Honour’s direction, not as a qualification to the directions earlier given, but as an explanation of risk that flowed from the forensic disadvantage that her Honour identified. The direction was apt to convey that, unless they scrutinised the complainant’s evidence “very carefully indeed”, a conviction may be wrong. That was an accurate description of the relevant risk. The reason it is dangerous to convict without heeding the warning contained in the Longman direction is that the conviction may be wrong. In my view, the words used in the Judge’s direction warned the jury of the existence of the relevant risk so as to meet the potential miscarriage of justice which prompts the requirement for a Longman direction.

133 In my view, the appeal should be dismissed.

**********

26/10/2009 - deleted an incorrect judgment - Paragraph(s) [1]-[8]

02/11/2009 - cover sheet - the authority of Crampton had not been included - Paragraph(s) cover sheet

12/08/2010 - incorrect citation - Paragraph(s) 20

Citations

TJ v The Queen [2009] NSWCCA 257

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13

R v Craig [2024] NSWSC 1059

R v Watson (No 3) [2022] NSWSC 1693

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44

Statutory Material Cited

1

Guest v The Nominal Defendant [2006] NSWCA 77

R v Gilham [2007] NSWCCA 323

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CITATION:	TJ v R [2009] NSWCCA 257 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26 June 2009
JUDGMENT DATE:	21 October 2009
JUDGMENT OF:	McClellan CJatCL at 1; Hidden J at 76; McCallum J at 84
DECISION:	By majority: appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeal - appeal against conviction - sexual assault - particular grounds of appeal - misdirection and non-direction - direction where accused disadvantaged by delay in complaint - whether Longman warning adequate - requirements of Longman warning - whether a warning required in terms - whether particular words required - INTERPRETATION - amendment to s 294 Criminal Procedure Act - transitional provisions - transitional provisions not to apply to proceedings commenced before the commencement of the amendments - when proceedings commence - WORDS & PHRASES - "proceedings" - "caution" - "warning" - "in terms"
LEGISLATION CITED:	Criminal Procedure Act 1986 Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 Crimes Act 1958 (Vic) Evidence Act 1995 Evidence Act 1906 (WA)
CATEGORY:	Principal judgment
CASES CITED:	Allerton v Director of Public Prosecutions (1991) NSWLR 24 550 Angliss v The State of Western Australia [2005] WASCA 162 Carroll v The State of Western Australia [2004] WASCA 254 Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 Crampton v The Queen [2001] HCA 60; (2000) 206 CLR 161 Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169 Doggett v R [2001] HCA 46; (2001) 208 CLR 343 DPW v R [2006] NSWCA 295; 164 A Crim R 583 DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400 Dyers v The Queen (2002) HCA 45; (2002) 210 CLR 285 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Gilham v The Queen [2007] NSWCCA 323; (2007) 178 A Crim R 72 JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187 Longman v The Queen (1989) HCA 60; (1989) 168 CLR 79 R v BDX [2009] VSCA 28; (2009) 194 A Crim R 57 R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 R v Channell [2002] NSWCCA 187 R v DBG [2002] NSWCCA 328 R v GEA [2002] NSWCCA 222 R v GS [2003] NSWCCA 73 R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 R v Hull (1989) 16 NSWLR 385 R v Janceski [2005] NSWCCA 281, 64 NSWLR 10 R v Johnston (1998) 45 NSWLR 362 R v Kesisyan [2003] NSWCCA 259 R v Lyberoupolos [2002] NSWCCA 280 R v Nicolaidis (1994) 33 NSWLR 362 R v SJB [2002] NSWCCA 163 R v Taylor (No 2) (2008) 18 VR 613 R v Taylor [2003] NSWCCA 194 R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89 R v WSP [2005] NSWCCA 427 RBK v The Queen [2004] WASCA 216 Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 Sheehan v R [2006] NSWCCA 233 Spencer [1987] AC 128 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; 178 A Crim R 133
PARTIES:	TJ (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/5927
COUNSEL:	A Francis (appellant) P M Miller (Crown)
SOLICITORS:	Nyman Gibson Stewart (appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/41/005
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	12 December 2007