Criminal law - One count of unlawful sexual relationship with girl under 16 - One count of unlawful sexual penetration without consent - Evidence of uncharged unlawful sexual acts - Whether propensity warning required - Whether separate consideration warning required - Longman direction

Criminal law - Sexual offences - Evidence of recent complaint - Directions on use of

BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275

Director of Public Prosecutions v Boardman [1975] AC 421

Gill v The Queen [1999] WASCA 68

Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

R v Arundell [1998] VSCA 102; [1999] 2 VR 228

R v Beserick (1993) 30 NSWLR 510

R v Osborne [1905] 1 KB 551

R v S [1998] QCA 71; [1999] 2 Qd R 89

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

1 MALCOLM CJ: In my opinion, this application for leave to appeal against conviction should be allowed and the conviction quashed. There should be an order for a new trial. I have reached this conclusion for the reasons to be published by Roberts-Smith J.

2 MCKECHNIE J: I agree with the reasons and conclusions of Roberts-Smith J.

3 ROBERTS-SMITH J: This is an application for leave to appeal against conviction.

4 After a trial which extended over seven hearing days between 22 April and 2 May 2002 before his Honour Judge H H Jackson and a jury in the District Court at Perth, the applicant was convicted of one count of having a sexual relationship with a child under the age of 16 (contrary to s 321A(3) of the Criminal Code) and one count of sexual penetration without consent (contrary to s 325 of the Code). On 31 May 2002 the learned trial Judge sentenced the applicant to 7 years imprisonment on the first count and 4 years imprisonment on the second, to be served cumulatively. That was a total of 11 years imprisonment. His Honour backdated the sentence to 2 May 2002 and made an order that the applicant be eligible for parole.

5 The notice of application for leave to appeal and an application for extension of time were filed on 23 July 2002. That was outside the 21 days from the date of conviction prescribed by s 695(1) of the Code. As the delay was satisfactorily explained and as the respondent did not oppose an extension of time, that was granted at the hearing on 5 December 2002.

6 Also at that hearing, counsel for the applicant, Mr A Karstaedt, also sought leave to amend the proposed grounds of appeal. That was not opposed by the Crown and leave to amend was granted.

7 The proposed grounds of appeal (to which I shall refer simply as "the grounds of appeal") are:

"Count 1

Ground 1

The verdict of the jury was unreasonable, or could not be supported having regard to the evidence, in that it was not open

to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the applicant was guilty.

Particulars

Even if satisfied that the conduct alleged by the Crown had occurred, it was not open to the jury to be satisfied beyond reasonable doubt that for the purposes of s 321A of the Criminal Code at least 3 relevant acts on separate days had occurred while the complainant was under 16 years of age, having regard to:

(a) the complainant's evidence that some of the acts relied on by the Crown occurred after she had gone to live in the Applicant's house;

(b) the evidence, especially that of Dr Swan and the complainant's grandfather Mr Gawthrop, to the effect that the complainant did not go to live in the Applicant's house until after May 1998, and the fact that the complainant turned 16 on 16 January 1998;

(c) the fact that the complainant lived in the Applicant's house until November 1999 when she was almost 18, only stated that 2 relevant acts on separate days had occurred prior to her turning 16, and was unable to particularise when the remaining acts which the Crown relied on had occurred.

Ground 2

The learned trial Judge erred in not giving any, alternatively, appropriate directions to the jury as to the proper use they could make of evidence of uncharged sexual acts after the period referred to in Count 1, which resulted in a miscarriage of justice.

Ground 3

The learned trial Judge erred in not giving any, alternatively, appropriate directions to the jury as to the proper use they could make of evidence of alleged sexual acts during the period referred to in Count 1 other than the five acts particularised by the Crown, which resulted in a miscarriage of justice.

Ground 4

The learned trial judge erred in failing to give the jury appropriate warnings in terms of the decision of the High Court in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, resulting in a miscarriage of justice.

Ground 5

The learned Judge erred in not directing or adequately directing the jury that they were required to consider each of Counts 1 and 2 on the indictment and the evidence relating to each count separately and to consider each count only by reference to the evidence that applied to it ('a separate consideration warning'), which resulted in a miscarriage of justice.

Ground 6

The learned trial Judge erred in not giving the jury an appropriate warning or direction concerning the dangers of propensity reasoning, and in particular, in not directing the jury that if they found the Applicant guilty on Count 2, they could not use that finding to reason that he was the kind of person likely to commit the acts the subject of Count 1, and a miscarriage of justice thereby occurred.

Ground 7

The learned trial Judge erred in not directing the jury adequately of the need, before convicting the appellant on Count 1, not only to be in unanimous agreement that the appellant had done at least three acts on at least three different days in relation to the complainant that would constitute a prescribed offence, but also to be unanimously agreed that the same three occasions had been proved beyond reasonable doubt, and a miscarriage of justice thereby occurred.

Ground 8

The learned trial Judge erred in admitting the evidence of what the complainant allegedly said to the Crown witness Donna Endersby as evidence of recent complaint, alternatively, in not giving the jury appropriate directions as to the proper use of that evidence, and a miscarriage of justice thereby occurred.

Particulars

The complaint was not shown to relate to any of the acts particularised by the Crown in evidence, or to any specific incident at all. Further, the evidence did not establish that the complaint was made sufficiently close in time to a sexual act to enable it to be treated as a recent complaint.

Count 2

Ground 1

The learned trial Judge erred in not giving appropriate directions to the jury as to the proper use they could make of evidence of uncharged sexual acts alleged to have occurred prior to the offence alleged in Count 2, which resulted in a miscarriage of justice.

Ground 2

The learned trial Judge erred in not giving appropriate directions to the jury as to the proper use they could make of evidence of sexual acts alleged to have occurred during the period specified in Count 1, which resulted in a miscarriage of justice.

Ground 3

The learned Judge erred in not directing or adequately directing the jury that they were required to consider each of Counts 1 and 2 on the indictment and the evidence relating to each count separately and to consider each count only by reference to the evidence that applied to it ('a separate consideration warning'), which resulted in a miscarriage of justice.

Ground 4

The learned trial Judge erred in not giving the jury an appropriate warning or direction concerning the dangers of propensity reasoning, and in particular, in not directing the jury that if they found the Applicant guilty on Count 1, they could not use that finding to reason that he was the kind of person likely to commit the act the subject of Count 2, and a miscarriage of justice thereby occurred."

8 In brief terms, the Crown case at trial was as follows.

9 The complainant was born on 16 January 1982 and accordingly had her 16th birthday on 16 January 1998. In respect of the first count, the complainant's evidence was that on an occasion in 1995, when she was 13 and living with her grandparents, the applicant indecently touched her and later on the same day had sexual intercourse with her. Thereafter the complainant, whose maternal aunt was married to the applicant, began staying at the applicant's house on alternate weekends. On those occasions the applicant had sexual intercourse with her. About June 1996 the complainant went to live in the applicant's house. There were serious problems within her own family and she had nowhere else to go. The applicant continued to have sexual intercourse with her in the house on a frequent basis. He also had sexual intercourse and made her perform fellatio on him on his crayfishing boat. Sometimes, after being on the boat, they went to an area of bushland where he again had sexual intercourse with her.

10 The applicant continued to have sexual intercourse with the complainant regularly until approximately a week or a few days before she moved out of his house in November 1999. Even thereafter, he continued to make her perform fellatio on him on his boat.

11 The Crown led evidence generally of sexual misconduct by the applicant with the complainant which extended through the period referred to in count 1 and after it.

12 For the purposes of s 321A of the Code, the Crown relied on five specified sexual acts, two of which were alleged to have occurred on the same day, to establish the offence of having a sexual relationship with the complainant. The five specified acts were one act of indecent touching and four acts of vaginal sexual intercourse.

13 Count 2 of the indictment concerned an incident after the complainant had moved out of the applicant's house when she returned to fetch some of her belongings when, despite her resistance, he had sexual intercourse with her without her consent.

14 The applicant gave evidence himself and called a number of witnesses, including his wife. The applicant's case at trial was simply that he never indecently dealt with nor sexually penetrated nor interfered with the complainant in any way at any time. He led evidence that the first time he met her was in 1996 and that the complainant only came and lived in his house in about July 1998 and not in 1996.

15 At the conclusion of the learned trial Judge's summing up to the jury, counsel for the applicant took no exception nor did he seek any redirection.

16 Section 321A was inserted in the Code by s 6 of Act No 14 of 1992. So far as is presently relevant, s 321A reads:

"321A (1) For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.

(2) In subsection (1) the act referred to need not be the same act, nor constitute the same offence on each of the 3 or more occasions.

(3) A person who has a sexual relationship with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.

(4) An indictment under subsection (3) shall specify the period during which it is alleged that the sexual relationship occurred and the accused shall not be charged in the same indictment with any other offence under this chapter alleged to have been committed against the child during that period.

(5) In proceedings on an indictment charging an offence under subsection (3) it is not necessary to specify the dates, or in any other way to particularize the circumstances, of the alleged acts. ..."

17 By subs (11) of s 321A "prescribed offence" means:

"(a) an offence under section 320(2) or (4) or 321(2) or (4); or

(b) an offence under section 320(3) or 321(3) where the child in fact engages in sexual behaviour."

18 The offence is described as having a sexual relationship with a child under 16 years. The elements are that the accused:

19 The first element is established pursuant to subs (1) by proof that on three or more separate occasions, each of which was on a different day, the accused did an act in relation to the child which would constitute a prescribed offence. There is no separate nor additional requirement to show a sexual relationship beyond that. It is the three proscribed acts which themselves constitute the proof of the sexual relationship for the purposes of subs (3).

20 To consider the first ground of appeal it is necessary to return to the evidence of the complainant.

21 She went to live with her grandparents when she was about 12 years old. When she went to live with her grandparents she changed schools, and this occurred when she was in Year 8. She thought that was in 1995 and that she was 12 or 13 years old.

22 A couple of months after she moved into her grandparents' house, when she was about 13, the complainant went with the applicant and his son to a place in Rockingham to collect firewood. The applicant was using a chainsaw to cut the wood. When they were there, he took her to a derelict house where he indecently touched her by putting his hand underneath her knickers. He stopped when his son came to the window.

23 According to the complainant, the applicant took her to his house later that same day and had penile intercourse with her.

24 The applicant had sexual intercourse with the complainant again "a couple of weeks later" while she was visiting his house on a weekend. At that stage, and for a while, she was visiting the applicant's house regularly on a fortnightly basis. The applicant had sexual intercourse with her on every fortnightly visit. On the alternate weekends each fortnight, the complainant visited and stayed with her father.

25 The complainant lived with her grandparents for about a year and then moved into the applicant's house. That was when she was in Year 9, in about June after the end of the financial year. She was able to recall the time in particular because she could not move until after the end of the financial year as her grandparents were receiving Centrelink and other payments for having her and she could not move until then for tax reasons.

26 After the complainant moved into the applicant's house, he had sexual intercourse with her almost every night. On a few occasions he tied her up with rags and then had sexual intercourse with her. On other occasions (but again after she moved into his house) the applicant had sexual intercourse with her on his crayfishing boat and in an area of bushland. The first time she remembered being tied up was when the applicant had sexual intercourse with her on his crayfishing boat. Thereafter, he used also to tie her up at his house in the bedroom. She sustained bruises on her wrists and feet as a result of this. She also described one occasion that the applicant had sexual intercourse with her in the lounge whilst she was living in his house, but she could not remember the year that happened.

27 When the complainant went out on the applicant's crayfishing boat, he would also make her suck his penis, sometimes ejaculating in her mouth. This occurred frequently, more or less on every occasion she went on the boat. After some such occasions, the applicant took her on a few occasions to a bush area at Coogee opposite a power station where again he had sexual intercourse with her. After having intercourse with her, he wiped himself with some rags. After she reported the matter to the police, she took them to this bush area where rags were located (expert evidence subsequently showed the rags found came from the same manufacturing batch as rags found in the possession of the applicant).

28 The complainant said she moved out of the applicant's house in November 1999 and until then he had continued having sexual intercourse with her regularly, both at the house and making her give him fellatio on the boat.

29 On or about 4 December 1999 she returned to the applicant's house to fetch some belongings and he confronted her and had sexual intercourse with her in the bedroom without her consent.

30 The five specific acts relied upon by the Crown, which were alleged to have occurred during the period nominated in count 1, were:

(1) the act of indecent dealing at the derelict house near Rockingham in 1995;

(2) the act of sexual penetration during intercourse at the applicant's house later that same day;

(3) the act of sexual penetration during intercourse at the applicant's house "a couple of weeks later" whilst the complainant was visiting the applicant's house on a weekend;

(4) an act of sexual penetration during intercourse on the applicant's crayfishing boat alleged to have occurred sometime after the complainant had moved into his house in about July 1996 (that being the first time she could recall being tied up by the applicant), and

(5) the act of sexual penetration in the lounge of the applicant's house after she had moved in to live with him.

31 The jury could only convict on count 1 if at least three of the five nominated acts had occurred on different days and all before the complainant's 16th birthday. Because they were both said to have occurred on the same day, only one of the first two could be taken for that purpose, even if the jury were satisfied both had occurred. If one of those and the third act were accepted, the Crown would still need to prove at least one more.

32 It was first put in support of ground 1, that taking her evidence at its highest, the complainant was uncertain as to when the fourth act (that on the cray boat) had occurred and the jury therefore could not have been satisfied beyond reasonable doubt that it occurred prior to the complainant moving into the applicant's house. She had said it had taken place after she came to live with him and his wife, but in cross-examination had been vague about that. A further point advanced was that in light of other evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the complainant had moved into the applicant's house prior to about June 1998 (which would have been six months after she had turned 16).

33 In the course of argument, counsel for the applicant conceded it was open to the jury to find the complainant had moved into the applicant's house in 1996, as she said, but sought to maintain the proposition that in light of the other evidence, the jury could not have been satisfied of that beyond reasonable doubt. There is an inherent inconsistency in that argument.

34 In Jones v The Queen (1997) 191 CLR 439, Gaudron, McHugh and Gummow JJ in a joint judgment held (452) that the test formulated by the majority in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 494, must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory. Their Honours said (at 450 - 451):

"In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:

'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'

The majority judges explained the application of the test as follows:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (Footnotes omitted)

35 The complainant's evidence-in-chief about moving into the applicant's house was as follows (AB 70 - 71):

"... Why did you go and stay with Auntie Lisa and the accused?---Because I had nowhere else to go.

You and your mother and stepfather?---I didn't get along with my mother and stepfather. I hated my stepfather especially after what he did to me and - - -

Sorry, go on?---And my parents were on drugs.

What about your father?---My father didn't want me at all.

What about any other aunties or uncles you may have?---Yeah. They didn't want me either.

Right. When did you move to Auntie Lisa's and the accused's house?---When?

Yes. What year in school were you?---Year 9.

Year 9?---Yeah.

Was there a particular time in that year when you moved?---After the end of the financial year, about June.

Why after the financial year?---My nanna - for tax reasons.

What kind of tax reasons?---Centrelink payments, rent, all those sort of like payments that she was receiving for having me.

So you moved at the end of the financial year when you were in year 9?---Yes.

How old were you?---About 14."

36 Other evidence which was said to bear on this issue included that of the complainant in cross-examination when she agreed that she had moved into the applicant's house a few months after the applicant's son Corey had moved out. There was also the evidence of one Donna Endersby, who testified that on a Friday in 1996, the complainant told her that she had to go to her uncle's house that weekend and her uncle was having sex with her. Ms Endersby said that at that time the complainant was staying with her grandparents and that she did not cease visiting the complainant at her grandparents' house until 1997. According to Ms Endersby, the two were school friends. They were in Year 9. A little later Ms Endersby testified that while walking on the street after school one Friday afternoon, the complainant said she had to go to her uncle's house that weekend to stay, but she did not want to go and she began to cry and became upset. When Ms Endersby asked why, the complainant said she did not want to go because her uncle was having sex with her. She said this conversation occurred when they were in Year 9 which was in 1996 (AB 242) and at that time she was staying with her grandparents (AB 243). She was asked about when the complainant moved into her uncle's house and objection was taken by then counsel for the applicant, when she indicated that she knew that because the complainant had told her and she knew the complainant was no longer staying with them also because she no longer continued to visit the complainant there. In answer to a question from the learned trial Judge, she said she ceased visiting the complainant at her grandparents' house in 1997. However, in cross-examination she said she was confident it was in 1996 that the complainant had told her about her uncle having sex with her (AB 246). That is entirely consistent with the complainant's evidence on the point.

37 The other evidence relied upon by counsel for the applicant in support of the argument that it was not open to the jury to accept the complainant's evidence that she moved in with the applicant in about June 1996, was that of the applicant, his wife, the complainant's grandfather and Dr Swan.

38 The applicant and his wife testified that the complainant did not begin visiting the applicant's house until 1997 and did not move in with them until their son Corey left in April 1998.

39 The grandfather's evidence was that the complainant commenced visiting the applicant and his wife in May 1996. He said she left to live with the applicant and his wife in June 1998. He reiterated that in cross-examination. In explanation he said (AB 600):

"... I was asked if I could remember the dates and I've got them in black and white at home because I had to put it on my tax returns every year she lived with us."

40 It was put by the Crown to the family members called by the applicant that they had contrived their evidence to support him against the complainant. They denied that. Nonetheless, that was obviously a live issue for the jury at trial.

41 The evidence of Dr Swan was that she saw the complainant for the first time on 16 May 1998. The address noted for her was that of her grandparents and the doctor's note was "live with grandparents". It was not put to the complainant that she had told the doctor that.

42 In my opinion, none of the evidence relied upon by the applicant here is of such a nature as to preclude the jury from accepting the complainant's evidence that she moved in with the applicant in about June 1996. It was entirely a matter for the jury to assess and it was open to them to accept her evidence.

43 It was next put that the complainant's evidence in respect of the fifth act was so vague that the jury could not be satisfied that it must have occurred prior to her 16th birthday.

44 This incident was said to have occurred when the complainant's aunt wanted to take her shopping but the applicant said she had to stay home to do some typing for him. He subsequently had penile intercourse with her on the lounge.

45 The complainant's evidence was that the incident occurred not long after she moved in with the applicant and his wife (AB 78). Mr Karstaedt argued that notion was just too vague to give the jury any grounds for satisfaction beyond reasonable doubt.

46 If the jury accepted the complainant's evidence that she moved in about June 1996, that would still have been 18 months before her 16th birthday. In the circumstances, it was clearly open to the jury to be satisfied to the necessary degree that if the incident happened "not long after" the complainant moved in, it was well within that 18 months.

47 Next it was argued on behalf of the complainant, that even if the jury could properly have been satisfied that the complainant went to live in the applicant's house about June 1996, they could still not have been satisfied beyond reasonable doubt that the fifth incident occurred prior to her 16th birthday. That was said to be because, on the complainant's evidence, sexual activities in the house and on the boat continued to occur until a few days before she moved out in November 1999 and as the complainant was unable to say when the incident occurred, the jury could not have excluded the reasonable possibility that it occurred during the 22 months after she turned 16 and before she left the applicant's home.

48 It is true that at various points in the cross-examination, the complainant professed to be vague and uncertain about certain aspects of the event, such as the circumstances in which she came to go with the applicant to the boat, what she was wearing and the like.

49 However, the point is again met by the complainant's evidence that the incident occurred not long after she moved in. It was clearly open to the jury to accept that and to be satisfied it was well within the 18 months between her moving in and her 16th birthday.

Grounds 2, 3 and 6 - No direction as to uncharged sexual acts ("propensity")

51 The two counts charged involved six identified acts.

52 The evidence of uncharged sexual acts was extensive. Counsel for the respondent described it as evidence that the complainant had been living with the applicant's family since mid-1996 and the applicant had been using her virtually as his second wife and having regular sex with her for a number of years from the age of 15 until she left the house just before her 18th birthday.

53 The physical evidence of the rags which had been located in the bush near Coogee went to prove sexual acts which were not the subject of either count.

54 Counsel for the applicant conceded the evidence of uncharged sexual acts was admissible in respect of both counts, but contended there was nonetheless a requirement for his Honour to give careful and explicit directions as to the proper use the jury could make of that evidence. No such direction was given. Mr Stone, on the other hand, contended that although the learned trial Judge had said very little about it, what he did say was sufficient in the context of the facts and evidence of this particular trial. Furthermore, it was submitted, his Honour's directions to the jury that they had to look separately at each of the acts the subject of the charges, meant there was no possibility of the jury using the relationship evidence in any impermissible way.

55 True it is that in his summing-up, the learned trial Judge made it clear to the jury that they were dealing with separate charges which had to be separately considered and he directed them on the elements which had to be proved in respect of each count.

56 The Crown submission relied expressly upon the following directions given by the learned trial Judge (at AB 662 and 667 respectively):

"The crown (sic) says that she has described the way in which the relationship between the two of them developed to the point where he was taking her to the boat and having sex of different forms at the boat and that sometimes after the boat came back to port they went to an area down near the old power station in Coogee and there was more sex there and he, on occasions, she can't remember dates and times and numbers of occasions but on occasions, he wiped himself down with rags which he used, which she said in her evidence, there were on the boat and in his (sic) ute and that years later when she did tell what had been going on years before she showed the police where those things had happened and she told the police about the rags and the police found one of them ..."

"I am simply saying those things because what we have here is a relationship which the crown (sic) says went over the period the subject of the first charge and a later period and didn't end until late 1999. What you are concerned to be satisfied of is what happened before 15 January 1998 and what happened on 4 December 1999." (Emphasis added).

57 Mr Stone acknowledged that those directions were not expressed in a way consistent with what was said by this Court in Cook [2000] WASCA 78; [2000] 110 A Crim R 117, but submitted that:

"How he has expressed it is in terms of giving each separate consideration, and the crown (sic) would say that the evidence led at trial, what the jury were confronted with at trial was one continuous relationship save that in relation to count 1 they were required to consider the period between the complainant's 13th and 16th birthday and decide whether they could be unanimously agreed on three of the five occurrences that occurred during that period of time. Then they were required to then (sic) separately consider the concluding act of that relationship, namely what occurred after she left the home of the applicant in November, returned on the day of the birthday party, I think 4 December, and one had then the allegation of rape, count 2."

58 Counsel for the respondent submitted that notwithstanding the stringency of the requirement for directions on how a jury may use relationship evidence as expressed by Anderson J in Cook, his Honour had himself recognised that what direction should be given (if any) must largely be dictated by the facts of the case. Counsel concluded his submission then this way:

"So I come back to the case that this trial judge was presiding over, and the way the evidence emerged in this case, and it wasn't like the KRM factual situation. It wasn't like the Cook situation. The evidence, if accepted, or as presented at trial, was a continuous pattern of sexual molestation of this complainant between the ages of 14 and almost 18, it happening, the sexual molestation of her, on such a regular basis that she could speak only in terms of the five occurrences she says occurred before her 16th birthday, and the final act shortly before her 18th birthday.

How then was his Honour to deal with the uncharged occurrences, the many that there were, where other than to say it explained, it showed how she was conditioned, it explained why she was dominated, perhaps explained why she didn't complained (sic), explained why she didn't leave the home, which he then did in the context of the crown (sic) case, and that's really as far as the crown (sic) can take that point other than to say he did direct the jury that at the end of the day they had to look at the five discrete occurrences that were particularised by the crown (sic).

So the jury's attention was drawn to those, and to those only, in terms of the first count for sexual relationship, and then he directed them that count 2 was separated and separated significantly in time and on the indictment, and that required separate consideration."

59 The reasons for decision of this Court in Cook were delivered on 28 March 2000. The applicant was convicted of six counts of sexual penetration involving two small girls. He was acquitted of one count of digital penetration. Evidence was led from both complainants that there were other incidents of sexual misconduct involving oral, penile and digital penetration committed upon both complainants. On the appeal, the Court pointed out it was not a "similar fact" case. Although there were two complainants, there was evidentiary overlap linking the counts. The evidence was admissible as "relationship evidence" or as part of the res gestae. However, as Anderson J (with whom Pidgeon and Wallwork JJ agreed) pointed out (128):

"[55] As this was not a similar fact case, and there were multiple counts involving two complainants, there was a requirement to warn the jury not only that proof to their satisfaction of guilt upon one count must not lead them automatically to a guilty verdict on any other count but that the evidence led in proof of an offence against one complainant did not prove an offence against the other complainant.

[56] The choice of words is a matter for the trial Judge, of course, but in whatever terms the direction is given, it must instruct the jury not only that they must draw a distinction between the evidence on each count and the evidence on every other count, but that they must not supplement the evidence on any particular count involving one complainant by looking at the evidence about the other complainant."

60 There the trial Judge had reminded the jury they had to consider each count on the indictment separately and could convict only if satisfied the particular incident complained of had occurred. Evidence relating to other counts was not admissible. If the jury were to find the accused guilty on one count they should not therefore assume he was a person likely to commit such offences and therefore convict him of the other counts. Anderson J held the direction was sufficient. Furthermore it would have been a misdirection to tell the jury (as counsel for the applicant argued should have been done) that they must disregard completely the evidence led on one set of counts in considering the other set. The jury was entitled to make use of that as relationship evidence. As Anderson J observed (129):

"It would have been wrong and confusing to tell them that they could make use of evidence of uncharged acts involving S for that purpose, but that they must disregard completely the conduct comprising the other charged acts involving S. The use to which they could put the evidence of other charged acts involving S was the same as the use to which they could put the generalised evidence of uncharged acts involving S, provided, of course, they found the applicant guilty of those charged acts."

61 On the point of relationship evidence and after referring to the judgment of McHugh and Hayne JJ in Gipp v The Queen (1998) 194 CLR 106, at 130 - 131, Anderson J concluded the relationship evidence was "plainly admissible" (130), but because it was prejudicial and admitted for a limited purposes, it was necessary that the jury be instructed how to use it. As to that, his Honour said (131):

"[68] What is perhaps not quite so easy to decide in any given case is what should be the content of the direction. I think this must largely be dictated by the facts of the case, although it is possible to formulate in general terms what may be described as the minimum requirements. What emerges from the cases is a broad consensus that the directions to the jury must leave them with an understanding of at least three things: (1) the jury may have regard to the evidence of extraneous sexual conduct only if they find it reliable and believe it to be true; (2) the evidence is relevant only to show the nature of the relationship between the accused and the complainant so as to place the evidence which is the subject of the charge in a real light; and, (3) the evidence is not direct evidence of the offence charged so that if the jury is not satisfied that the conduct the subject of the charge has been proved, they cannot use the evidence of uncharged conduct to convict the accused.

[69] As McHugh J pointed out in BRS v The Queen (supra) at 305, in some cases the directions will have to be more specific. An obvious case would be if the Crown seeks to rely on the general behaviour evidence for a specific purpose such as, for example, corroboration. It will be for the Judge to direct the jury whether or not they may use it for that purpose and, perhaps, in what way they may do so. Then a direction such as that given by Lord Aitchison in HM Advocate v AE (supra) might be appropriate. Depending on the nature and volume of the relationship evidence, it may be important to give particular emphasis to how it may not be used. R v Grech (supra) seems to have been such a case. I gather this from the judgment of Callaway JA at 614, where his Honour said:

"The evidence of uncharged acts, and especially that relating to the incident in Sydney when the complainant was only 15 years old, was of real significance in the trial. There was more evidence about that incident than all the counts on the presentment put together. It was highly prejudicial and it was necessary for the jury to be expressly directed as to the ways in which it could not be used."

[70] It is also at least most desirable, if not essential, that the warnings be given at an early stage, preferably immediately before but generally no later than immediately after the evidence in question; and that the jury be reminded of the warnings in the final charge: see Beserick (1993) 30 NSWLR 510 at 516; 66 A Crim R 419 at 423."

62 His Honour did not accept it to be the law that in every sexual assault case involving relationship evidence, the jury must be expressly directed that they must not engage in any form of propensity reasoning (136). The undeniable fact is that relationship evidence is propensity evidence (134). His Honour said (136):

"[91] As the authorities presently stand, I think the best guidance for trial Judges is provided by King CJ in R v Dolan (supra). Having explained in standard terms the limited purpose of relationship evidence and that it cannot be used for any other purpose and that it cannot be used at all unless it is found to be credible, it will usually be sufficient to instruct the jury that they cannot convict the accused unless they find, on the evidence relating to each charge, that he is guilty of that charge; and, if they are not satisfied that the charge in question is proved, they cannot convict the accused on the basis of the evidence of the other conduct. Of course, there will be cases in which it will be necessary to act on the advice of Doyle CJ in K (loc cit) and say a little more."

63 KRM itself concerned a charge of maintaining an unlawful sexual relationship with a child under 16, and 17 other specific sexual offences against the same child. The decision of the High Court in that case was delivered in March 2001, 12 months after the decision in Cook. The first charge was laid under s 47A of the Crimes Act 1958 (Vic), which required proof of proscribed sexual conduct between the accused and the child on three occasions during the nominated period. The trial judge did not direct the jury that if they found the applicant guilty on the first count, they were not to use that finding or the acts constituting the offence to reason that he was the kind of person who was likely to have committed any of the specific sexual offences with which he was charged. Nor did the judge direct the jury that if they found the applicant guilty of one or more of the 17 counts, they could not use that finding or findings to reason that he was the kind of person who was likely to commit the offence charged in the first count. The question in that appeal was whether a trial judge must always give either or both such directions when an accused is charged with maintaining a sexual relationship and other specific sexual offences.

64 McHugh J held (387) there is no such absolute rule in either regard and that ordinarily no such warning is required in respect of the individual acts that form a charge of maintaining a sexual relationship (or its equivalents) - although the circumstances of an individual case may require the judge to give a propensity warning. But ordinarily, his Honour said, it will be sufficient if the trial judge directs the jury that they must consider each count, and the evidence relating to each count, separately.

65 Having affirmed (at 394) that evidence of uncharged sexual acts must be treated as admissible to explain the nature of the relationship between the complainant and the accused, McHugh J added that:

"... trial judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it."

66 His Honour recognised the problem inherent in a jury having to consider an accused charged with a multiplicity of sexual acts and at the same time being given a propensity warning. He concluded ([35]) that judicial experience negated the need for a propensity warning in such circumstances and that the universal giving of a "separate consideration warning" indicates that a warning of that kind is ordinarily sufficient to avoid miscarriages of justice. Hayne J expressly agreed ([131]) with McHugh J on this, although he considered ([132]) that where evidence which is not the subject of a charge being tried, a propensity warning will ordinarily be required. However, that will not be so where there are multiple counts in the one indictment; generally, the separate consideration direction will be sufficient warning against misusing evidence of other charged acts.

67 In KRM the applicant had submitted in precise and quite extensive terms the form of the direction that he contended the trial judge should have given. It is set out in the joint judgment of Gummow and Callinan JJ (at [63]). The propensity aspect of it was:

"[The] danger is to reason that because you find the accused engaged in sexual conduct the subject of [the relationship count], he was the kind of person to have done so on the other occasions charged. Such a process of reasoning would be quite wrong. And I direct you not to engage in it."

68 Gummow and Callinan JJ thought it certainly would not have been inappropriate for the trial judge to direct the jury in those or similar words but added (at [72]) that "no universal rule" should be laid down in that regard. There the trial judge had repeatedly emphasised the need for the jury to carefully examine, and be satisfied of, each charge separately. The case against the applicant of prolonged sexual misconduct with the complainant was a very strong one and included evidence of a confession he made to his wife. Their Honours concluded that in the circumstances of the case the trial judge had not fallen into error in not directing the jury in the terms suggested. They further concluded that even had they thought such a direction might have been given out of prudence, the appeal should still be dismissed because no miscarriage of justice could have been occasioned by its omission "in the compelling circumstances of the case" ([73]).

69 Kirby J affirmed (at [83]) that there is no rule of law or practice requiring the universal provision to the jury of a propensity warning in any trial in which an accused faced accusations of specific sexual offences, expressed in multiple counts, as well as a single count alleging a relationship offence. Nor was his Honour convinced that the High Court should lay down such a rule ([114]). He referred to Emery [1999] TASSC 141; (1999) 110 A Crim R 221, 230 in which a universal obligation to give a propensity warning was rejected on the basis that, in the circumstances of that case, it would have been "an artificial exercise". Those circumstances were adumbrated by Slicer J at 230 - 231, as being that there was only one complainant; the acts constituting the crime were discrete and identified; there was no general evidence outside the matters specified; the events occurred over a relatively short time; the jury were given a "separate consideration" direction; the case did not involve circumstantial or inferential reasoning but word against word; and there was little, if any, evidence used as corroboration. Kirby J observed (at [116]) that:

"These circumstances, which will vary from case to case, illustrate the fact that, in some cases, the risks of propensity reasoning may be minimal."

70 Kirby J said (at [119]) that it would ordinarily be "proper" to give a propensity warning in cases in which the circumstances are the reverse of the list given by Slicer J in Emery. Thus, such a warning should ordinarily be given where there is more than one complainant, where the acts constituting the crime are not discrete and clearly identified or where general evidence is given which lacks specificity, "of the very kind that the relationship offence may tend to permit."

71 In the event, his Honour concluded KRM was a case in which such a warning should have been given, but as no request had been made for such a direction at trial and in the circumstances (a very large number of individual offences of which the applicant was convicted) it was unlikely that the lack of it would have had much impact on the jury's deliberations, the proviso should be applied and the appeal dismissed.

72 Returning to the instant case, his Honour reminded the jury (AB 646) that the two charges were separate and so required separate verdicts. He later (AB 659) explained how the two charges on the indictment and the statutory alternatives open on the first count (that is, the individual offences constituted by the separate acts alleged) would be put to the jury. That was the extent of those parts of his Honour's directions which could be characterised as requiring separate consideration". There was no reference to how the evidence was to be approached.

73 The learned trial Judge gave clear and correct directions in respect of the sexual relationship count. He pointed out (AB 649, 653, 654, 656 and 659) the need for the jury to be satisfied there were at least three separate occasions constituting prescribed offences on three different days, during the period before the complainant turned 16 years of age. The learned trial Judge referred to the five particular occasions put forward and then continued (AB 656):

"... She makes a number of specific allegations of sexual penetration. She says there are all sorts of other - a whole range of other acts of sexual penetration, many of them penetration of the vagina by the penis but some when he made her suck his penis, which is an act of sexual penetration, that's covered by the provision." (Emphasis added).

I think all that his Honour meant by that last reference was that an act of sexual penetration is a "prescribed offence" for the purposes of s 321A of the Code. His Honour then continued (AB 657):

"The crown (sic) says she's detailed five particular ones. The first two on the same day and three others on separate days and she's given generalised evidence of a range of other similar acts. The crown (sic)says that you can be satisfied beyond a reasonable doubt that on at least three separate days those acts happened; that five acts that I have detailed cover 4 days. You can be satisfied beyond a reasonable doubt of those, and there are a whole lot of others as well." (Emphasis added).

74 Nothing further was said about how the evidence relating to the "others" bore upon the offences charged.

75 Later, in the course of outlining the Crown case, his Honour said (AB 661):

"Then later that day she says, after he had gone back to his house, he had sexual penetration of her for the first time. Then she said it happened again a couple of weeks later when she was staying over and he came to stay the night. Then it developed into a relationship which went on and on and developed into different forms because he started molesting her on the fishing boat as well as at home in different ways.

Over the period of time she became conditioned to it and the crown says to you remember you are talking about a girl who starts at 13 years of age who's got no parents really that she can turn to, who is stuck with a situation in which if she tells relatives, and she doesn't have many people other than relatives to tell, there will be all sorts of family trouble.

When she did, the crown (sic) says, pluck up the courage to tell years later after she had left the Allegretta family situations, you can see the trouble it's caused and all her fears have come true: she's lost her family by disclosing what her uncle had done to her over the period.

In 1996 after the first episodes she did tell someone, she told her best friend Donna Endersby who was told when they were in year 9 at school but she wouldn't tell anyone else. She wouldn't even tell a counsellor. When Donna Endersby told her to, tried to get her to, tell others she wasn't going to do that.

For his part, the crown (sic) says, Mr Allegretta seems to have become infatuated with this teenage girl and the relationship simply went on. For legal purposes you are concerned only with what happened up to 15 January 1998 because at that point she became 16 and so this issue of a sexual relationship charge, count 1, comes to an end that day but the sexual offending, if you like, not before you as charges but as a matter of fact the crown says, kept on going." (Emphasis added).

76 Once again, how evidence of uncharged conduct could or could not be used by the jury was not explained.

"The crown (sic) says that she has described the way in which the relationship between the two of them developed to the point where he was taking her to the boat and having sex of different forms at the boat and that sometimes after the boat came back to port they went to an area down near the old power station in Coogee and there was more sex there and he, on occasions, she can't remember dates and times and numbers of occasions but on occasions, he wiped himself down with rags which he used, which she said in her evidence, there were on the boat and in his ute and that years later when she did tell what had been going on years before she showed the police where those things had happened and she told the police about the rags and the police found one of them."

78 The evidence of the rags was significant. The fact that the police found in the bush location to which the complainant took them, a rag which she said the applicant had used to wipe himself after having sex with her and which was scientifically shown to match other rags found in his possession, was powerful support for her account. But the danger was that that evidence went to uncharged sexual acts of a general nature, not any of the specific offences charged. It was all the more important therefore, for the jury to be clearly directed about how that evidence could be used by them - and more particularly, how it could not be.

79 It is, I think, quite clear from his Honour's directions generally, that the jury would necessarily have appreciated that they could not have regard to the complainant's evidence of uncharged sexual acts unless they believed it to be true.

80 However, although the learned trial Judge explained that the evidence of uncharged sexual acts had been led to show the nature of the relationship between the complainant and the accused (eg from AB 661, set out above), at no point did he tell them it could be used only for that purpose and nor did he tell them such evidence was not direct evidence of the offences charged. In those respects there was a failure to give a direction of the kind required by Cook and KRM.

81 The question then is, whether the circumstances of this case required such a direction.

82 This was not a case which involved a multiplicity of counts on the indictment; the evidence with which these grounds of appeal are concerned primarily went to uncharged acts of a generalised nature. An adequate "separate consideration" warning would have sufficed with respect to the six acts the subject of the indictment, but the evidence of the other (uncharged) acts called for a propensity warning. I consider the directions given by the learned trial Judge as to the separate nature of the charges and the need to return separate verdicts, was not a sufficient "separate consideration" direction in any event. At no time did his Honour explain to the jury that they had to consider only the evidence relating to the particular act charged.

83 Although here there was only one complainant and the acts charged were discrete and, in my view, clearly identified, there was a large amount of general relationship evidence, for some of which there was objective support. There were no admissions. The applicant maintained that none of the alleged conduct had occurred. In these circumstances, a "propensity" or "relationship" warning was required.

84 Counsel for the Crown properly conceded at the hearing of the appeal that if what the learned trial Judge had told the jury was held not to have been a sufficient direction, then there would have been a miscarriage of justice and it would not be a case for the application of the proviso. I agree. The appeal must be allowed on these grounds.

85 Sexual misconduct by the applicant was alleged to have commenced when the complainant was 12 or 13 years of age, in about 1994 or 1995. Some of the sexual behaviour relied on by the Crown was alleged to have occurred in 1995. The complainant first spoke to the police on 1 March 2000, and a formal complaint was received on 6 April 2000. The applicant was approached in relation to this matter on 4 January 2001. There was therefore a delay of five or more years between the time the sexual conduct the subject of the first count was alleged to have commenced and the time that the applicant was first approached by the police.

86 The learned trial Judge reminded the jury (at AB 669) that counsel for the applicant at trial had pointed out there was a long delay between the events alleged and the first occasion the complainant made a complaint to anyone in authority. It was submitted by counsel for the applicant on the appeal that his Honour gave no warnings of the type referred to in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. In particular, no direction or warning was given in relation to the danger of convicting in the absence of corroboration, and no direction or warning was given as to the difficulties encountered by an accused person who is confronted with allegations of sexual misconduct a long time after the conduct was alleged to have occurred. It was submitted that in the circumstances of the case, warnings or directions in relation to these matters should have been given.

"... You need to remember that these offences involve, from the start, a relatively young child and that there were a considerable number of years that passed before they were brought to the attention of the police, as well as the lack of direct corroborative evidence.

Perhaps because of that delay there may be evidence that couldn't be gathered together and put before you. You would have to be satisfied beyond a reasonable doubt of the truth of the allegations, the essential parts of the charges laid, before you could convict and you would need to be very careful in your analysis of the evidence for those reasons."

88 Counsel for the applicant submitted this was inadequate, relying on R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241, a decision of the Court of Criminal Appeal in New South Wales.

89 In that case, Sully J, with whom Wood CJ at CL and Dowd J concurred, after examining the relevant authorities including Longman, Crampton v The Queen (2000) 206 CLR 161 and Doggett v The Queen (2001) 182 ALR 1, concluded that in any criminal trial of sexual offences in which substantial delay in the making of the complaint is a feature, a Longman direction must be given and must be cast in a particular form.

90 Both Wood CJ at CL and Sully J expressed concern at the difficulty and complexity of the directions which in their view, are now required in cases of sexual offences, in compliance with the decisions of the High Court in Longman, Crampton and Doggett. Neither would have found fault with the directions given by the trial Judge were it not for the binding authority of those decisions of the High Court.

91 Wood CJ at CL agreed with the reasons and conclusions of Sully J, but made some additional observations. He saw the effect of the decisions of the High Court as being to give rise to an irrebuttable presumption in any case in which delay between alleged offence and complaint is a feature, that the delay has prevented the accused from adequately testing and meeting the complainant's evidence, so that the jury must be given a warning to that effect whether or not the accused was actually prejudiced in that way. His Honour explained that (247):

"The difficulty which I have with this proposition is that it elevates the presumption of innocence, which must be preserved at all costs, to an assumption that the accused was in fact innocent, and that he or she might have called relevant evidence, or cross-examined the complainant in a way that would have rebutted the prosecution case, had there been a contemporaneity between the alleged offence and the complaint or charge. That consideration loses all of its force if, in fact, the accused did commit the offence. In that event there would have been no evidence available of a positive kind, ... no matter how contemporaneous the complaint or charge was with the offence". (Italics in original)

92 At 248, after referring to the remarks of Spigelman CJ in R v Johnston (1998) 45 NSWLR 362, 370, his Honour went on to say:

"My concern lies more with the unequivocal nature of a warning, which must be given by a trial judge who does not himself or herself know where the truth lies, that the accused was unable to adequately test and meet the prosecution case.

If in fact the accused did commit the offence charged, any such warning or direction would be misleading if not positively untrue. A similar consideration would apply if, in fact, the accused was not prejudiced, being able, in the particular circumstances of the case, for example to call positive and objective evidence in rebuttal, or where the absence of contemporaneity did not in any way deprive him or her of such an opportunity". (Italics in original)

93 His Honour emphasised (252) that he did not by his remarks intend in any way to water down the presumption of innocence, nor to make it any more difficult for an accused to have a fair trial.

94 With the greatest respect, I consider that a view which purports to give full effect to the presumption of innocence yet at the same time would call for a different approach where a trial Judge considers an accused is not in fact innocent, (or may not be), must necessarily derogate from that fundamental presumption. Furthermore, the perceived problem is, I think (again with respect) overstated. As Wood CJ at CL himself pointed out (250), the guiding principle was stated by the High Court itself in Longman (at 86):

"The general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."

95 The delay between alleged offence and complaint in Longman was more than 20 years. After such a delay the opportunity for the accused to adequately test the complainant's account had gone. That account could otherwise have been tested whether or not the accused had done the acts complained of. The "testing" in a particular case may in fact serve to confirm the complainant's account. There were other circumstances in Longman which added to the need for a warning. As McHugh J pointed out (Longman, 108):

"The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious."

96 Crampton also involved a delay of 20 years. In their joint judgment, Gaudron, Gummow and Callinan JJ held (at[45]):

"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." (Emphasis added).

97 McHugh J agreed. Having referred to the particular disadvantages to an accused flowing from such lapse of time, Kirby J said (at [132]):

"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. The 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." (footnotes omitted).

98 Hayne J emphasised (at [142] ibid) that what Longman requires is not merely a judicial comment, but a warning to the jury that, because the evidence of the complainant cannot be adequately tested after 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, are satisfied it is truthful and accurate.

99 The period of delay in Doggett was somewhat more than 10 years. The evidence included a taped telephone conversation between the complainant and the applicant in which the latter appeared to respond apologetically when confronted with the complainant's allegations of sexual offending. The appeal was allowed and the convictions quashed by majority (Gleeson CJ and McHugh J dissenting).

100 None of the members of the majority (Gaudron, Kirby and Callinan JJ) considered that the existence of corroboration (the taped telephone call) avoided the need for a Longman direction. Gaudron and Callinan JJ listed seven considerations bearing upon the point, including (at [51]) that a Longman direction is required to deal not only with the problem of difficulties of recollection an accused may suffer because of lapse of time, but the denial to an accused by the effluxion of time, of the forensic weapons that a timely complaint might allow.

101 Kirby J pointed out (at [127]) that the criterion for the provision of a Longman warning is not mathematically precise. A warning might not be necessary in a case where there was a "comparatively short interval" between the alleged offence and a complaint. However, the longer the delay, the clearer the need to give a warning.

102 Having canvassed the High Court authorities, Sully J in BWT concluded (ibid, [95]) in part that the following propositions could be gleaned from them:

(1) In any criminal trial a feature of which is substantial delay in complaint of alleged sexual offences, a Longman direction must be given and must:

(i) the evidence of the complainant cannot be adequately tested;

(ii) it would therefore be dangerous to convict on that evidence alone;

(iii) although the jury would nonetheless be entitled to do so if satisfied the complainant's evidence was truthful and accurate;

(iv) having first scrutinised the evidence with great care;

(v) and taking 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

(vi) applying the warning of the dangers of conviction to each stage of that scrutiny.

(2) The direction must be given as an authoritative warning based on the accumulated experience of the courts, not merely upon ordinary commonsense.

(3) The initial trigger for a Longman direction is the passage of time between the alleged offence and the first complaint (ibid, 274).

103 As to that last, Sully J suggested (at 275, ibid) that it is not clear from the authorities whether there is any, and if so what, time lapse that would generally be regarded "by current majority opinion in the High Court" as not calling for the giving of a Longman direction. That led his Honour to say that:

"While that state of affairs continues, it seems to me that the only prudent approach of a trial judge is one that regards any delay between offence and complaint as sufficient to raise for consideration the need for a Longman direction. That consideration should concentrate upon two related factors, namely, the actual lapse of time involved in the particular case; and the actual risk of relevant forensic disadvantage in the particular case. It seems to me that, as matters stand, a trial judge would be well advised to give a Longman direction unless it is possible to conclude reasonably: first, that the particular time lapse is so small that any reasonable mind would regard it as, in context, trifling; and secondly, that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47), 'far-fetched or fanciful'."

"I find it, if I may presume to say so frankly, unpalatable to have to say in such a context that the directions given to the jury do not meet the requirements of the current law in connection with the so-called Longman direction. But, unpalatable or not, I have come to the conclusion that there is no way in which the brief and temperate directions given by his Honour to the particular jury can be accommodated to the requirements established, not only by Longman itself, but by the subsequent decisions in Crampton and in Doggett.

In my opinion Ground 2 has been established."

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. What was said in this regard by the learned trial Judge fell significantly short of such a warning.

106 In light of the evidence at trial it cannot be said that the applicant would inevitably have been convicted had the necessary warning been given. It could not be said the applicant was not thereby deprived of a chance of acquittal that was fairly open (Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, 515; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 371-2; Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, 9). This is therefore not a situation for the application of the proviso. I would uphold the appeal on this ground also.

Ground 5 - A "separate consideration" direction

107 A "separate consideration" direction is one whereby the jury is directed that they must consider each count separately and must do so only by reference to the evidence that applies to it (see McHugh J in KRM, supra, at [36] and Anderson J in Cook, supra, at [55] to [56]). The requirement applies as much to a case in which there are multiple counts in respect of one complainant as it does to a case in which there is more than one complainant (Sampson v The Queen [2002] WASCA 222 per Parker J at [16] and [17] and Schlaefer v The Queen (1984) 37 SASR 207, 210-211).

108 I have already mentioned that the learned trial Judge referred to the fact that there were two separate charges and the jury was required to return a separate verdict on each. His Honour also explained the process of separate verdicts in respect of the alternative offences open on the first count. Nowhere, however, did his Honour tell the jury they had to consider each count (or alternative offence) only by reference to the evidence relating to it. Such a direction would have been required whether or not a propensity direction had been given. For the reasons already explained, the lack of both means the appeal on this ground must succeed.

Ground 7 - sexual relationship - three acts

109 The essential point asserted by this ground is that the learned trial Judge failed to direct the jury that they had to be unanimously agreed on the same three prescribed sexual acts before they could convict on this count.

110 As a matter of law, the jury did have to be so satisfied. On such a charge the jury must agree on the same three acts as constituting the offence (KBT v The Queen (1997) 191 CLR 417, Per Brennan CJ, Toohey, Gaudron and Gummow JJ at 422 and 424, per Kirby J at 431).

111 I have already pointed out that the learned trial Judge told the jury they had to be satisfied there were at least three separate acts on different days. He identified the five particular occasions relied upon by the Crown. He correctly directed the jury on the onus and burden of proof. At AB 653 his Honour said:

"The law in relation to sexual relationship charges is that because there must be three or more matters on separate days before a sexual relationship is created, you must unanimously agree on the three or more. So you will need to talk amongst yourselves and be sure that the foreman can tell us that you have all agreed on the one, two, three or more of the matters on different days that make up what the law calls a sexual relationship with a female child and similarly on count 2 of course. We are asking for a unanimous verdict; a verdict of all and each of you." (Emphasis added).

"... the concept of a sexual relationship with a child under 16 involves the jury being unanimously of agreement beyond reasonable doubt that there are at least three different occasions on different days on which there was a sexual act of indecent dealing or sexual penetration by the accused with the female child." (Emphasis added).

113 In my view the jury would have well understood from these directions that they could only convict if they were unanimously agreed on the same three acts committed on different days. This ground is not made out.

114 What the complainant said to Donna Endersby was admitted as evidence of recent complaint. No objection was taken to it at trial. Counsel for the applicant on the appeal conceded that evidence was rightly admitted. The ground was argued on the basis the learned trial Judge failed to give appropriate directions on the proper use of that evidence.

115 Evidence of recent complaint goes only to consistency of the conduct of the complainant, as buttressing the complainant's evidence (Kilby v The Queen [1974] HCA 11; (1973) 129 CLR 650, 466, 469, 472, 474; cf Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 in which it was held that evidence of recent complaint admitted under the provisions of the Evidence Act 1995 (NSW) was admissible as evidence of the truth of the fact asserted). Evidence of recent complaint goes only to the credit of the complainant and is admissible only for that limited purpose (Ugle v The Queen (1989) 67 CLR 647; Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145).

116 After reminding the jury of the evidence in this regard, the learned trial Judge directed them as follows (at AB 675):

"Complaint, of course, is not evidence of truth of the matter. If I said to you, 'The man sitting down there with his hand on his chin trying to stay awake stole my car,' then you don't know whether that's true or not. I can't prove it's true by just saying it. You might think, 'Well, how do we know whether he's telling the truth? If he'd stolen the judge's car he wouldn't be still working for him.' You would get that right, too.

So complaint is not evidence of truth. You don't prove something is true by just saying it to someone else. It's not evidence of falsehood either. The complaint may be true or it may be false. If I said my house was burgled last night, it might be true or it might be false. So why is the evidence put in front of you? It is put in front of you because the crown (sic) says that it goes to consistency." (Emphasis added).

117 This was a sufficient and proper direction. Ground 8 is not made out.

118 Grounds 1 to 4 inclusive in respect of the second count reflect grounds already dealt with in relation to the first count.

119 Grounds 2, 3, 4, 5 and 6 have been established. For the reasons already given this is not a case for the application of the proviso. I would accordingly grant leave to appeal and allow the appeal and add that the conviction be quashed. As the evidence was such that it would have been open to a jury, properly directed, to convict, I would order a new trial.