Criminal law - Appeal against conviction - Sexual offences against a child - Substantial delay between the occurrence of the alleged offences and the appellant being informed of the complainant's complaint - Longman warning - Some of the alleged forensic disadvantages suffered by the appellant unrelated to the substantial delay - Whether the trial judge's directions were adequate to ensure a fair trial

Criminal Code (WA), s 321(2), s 321(4), s 321(8)(b)

Evidence Act 1906 (WA), s 50

Application for an extension of time to appeal dismissed

AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106

Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161

Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169

Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

FJL v The State of Western Australia [2010] WASCA 8

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

MAS v The State of Western Australia [2012] WASCA 36

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

Wimbridge v The State of Western Australia [2009] WASCA 196

2 BUSS JA: On 2 December 2011, the appellant was convicted, after a trial in the District Court before Sweeney DCJ and a jury, on six counts in an indictment.

3 He has applied to this court for an extension of time to appeal, and leave to appeal, against conviction.

4 The appellant was sentenced on 24 January 2012. The last date for appealing against conviction was 14 February 2012. He did not file his appeal notice until 20 February 2012. The appellant has filed an affidavit in support of the application for an extension of time.

5 The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.

6 I will consider the merits of the proposed ground of appeal before deciding whether an extension of time should be granted.

7 The indictment alleged that the appellant had committed four counts of aggravated sexual penetration of a child of or over the age of 13 years and under the age of 16 years who was then under his care, supervision or authority, contrary to s 321(2) read with s 321(8)(b) of the Criminal Code (WA) (the Code). These offences comprised counts 1, 2, 3 and 6.

8 The indictment also alleged that the appellant had committed two counts of indecent dealing with a child of or over the age of 13 years and under the age of 16 years who was then under his care, supervision or authority, contrary to s 321(4) read with s 321(8)(b) of the Code. These offences comprised counts 4 and 5.

9 The alleged offences were committed against a girl. She was the complainant in all of the counts.

10 Count 1 alleged that on a date unknown between 8 December 2005 and 4 March 2006, the appellant penetrated the complainant's anus with his penis.

11 Count 2 alleged that on a date unknown between 12 May 2005 and 6 January 2007, the appellant penetrated the complainant's vagina with his penis.

12 Count 3 alleged that on a date unknown between 12 May 2005 and 6 January 2007, the appellant penetrated the complainant's vagina with his penis.

13 Count 4 alleged that on a date unknown between 31 December 2005 and 4 March 2006, the appellant indecently dealt with the complainant by touching her vagina.

14 Count 5 alleged that on the same date and at the same place as in count 4, the appellant indecently dealt with the complainant by procuring her to masturbate his penis.

15 Count 6 alleged that on a date unknown between 6 January 2007 and 7 April 2007, the appellant penetrated the complainant's vagina with his penis.

16 At the material time, the Department for Child Protection had placed the complainant in the foster care of the appellant and his wife. The complainant was the biological niece of the wife.

17 The appellant was born in 1975. He was aged between 30 and 32 when the offending occurred. He was 36 at the time of the trial, and 37 when he was sentenced.

18 The complainant was born in 1992. She was aged either 13 or 14 when the offending occurred and was 19 at the time of the trial.

19 The State alleged that between mid-2005 and April 2007 there were numerous occasions when sexual activity occurred between the appellant and the complainant. The activity was consensual in the sense that the complainant did not object to it and, indeed, cooperated.

20 As to count 1, during an evening in early 2006, the appellant and the complainant were at home watching television in the lounge room. The appellant's wife was in bed. The appellant and the complainant had a discussion about the complainant's sexual behaviour. The appellant then stood behind the complainant and penetrated her anus with his penis. The complainant did not recall how long this activity lasted, but said that it was 'not very long'.

21 As to count 2, on another occasion in 2006, the appellant and the complainant were at home. The appellant's wife was at work. The complainant bent over the bed in the appellant's bedroom. He stood behind her and penetrated her vagina with his penis. Sexual intercourse continued for a short time.

22 As to count 3, on another occasion in 2006, the appellant and the complainant were at home. During the evening, the complainant entered a spare bedroom where the appellant was sleeping. The complainant sat on the bed and spoke to the appellant briefly before getting into bed with him. The appellant lay on top of the complainant and penetrated her vagina with his penis. Soon afterwards, the appellant and the complainant heard the appellant's wife approaching. The complainant jumped out of bed and hid behind the bedroom door.

23 As to counts 4 and 5, in early 2006 the appellant and the complainant were at home. They were in the swimming pool at the rear of the premises. The appellant's wife was in the house. The appellant approached the complainant, and began touching her vagina on the outside of her bathers. At the same time, she was rubbing his penis on the outside of his board shorts.

24 As to count 6, between January and April 2007, the appellant, his wife, their baby daughter and the complainant were staying at a motel. The appellant entered the complainant's bedroom. At the time, the wife and the baby were asleep in another room. The appellant stood behind the complainant and penetrated her vagina with his penis. The complainant said in her witness statement:

[The appellant] was behind me and his penis was in my vagina. I was wearing my top and my pants and underwear had been pulled down. The next thing I remember was [the appellant] doing up his pants and quickly heading off back down the hallway. I saw [the wife] standing in the hallway looking at me. I still had my pants down.

25 The appellant's wife was called as a witness by the State. As to count 6, she gave evidence that during an afternoon she was attempting to sleep on a bed in the motel suite. She got up and walked towards the complainant's bedroom. She saw the complainant in the bedroom. She was naked beneath the waist and was bending over. The appellant was half a metre away from the complainant. He was facing the complainant and the complainant was facing away from him. When the wife inquired, 'What's going on?', the appellant and the complainant looked startled. The appellant said that nothing was going on, and that the complainant had asked him to 'take a look at a pimple on her bum'.

26 At the trial, the complainant gave evidence of sexual encounters with the appellant apart from those incidents the subject of the counts in the indictment. She said there were many occasions, the specific details of which she could not recall, when she had vaginal or oral sex with the appellant at his home. The complainant said that vaginal or oral sex occurred at least once a week, especially on Monday nights when the appellant's wife had a regular social outing. According to the complainant, the sexual encounters continued after she turned 18 in 2010.

27 There was evidence that, at all material times, the complainant was also sexually active with a boyfriend or boyfriends.

28 The appellant's wife also gave evidence that she found video footage on the appellant's mobile telephone that had been sent to the complainant's mobile telephone. The video depicted him masturbating. The wife also said that she found text messages on the complainant's mobile telephone which had been received from the appellant's mobile telephone. The text messages included 'sleep naked', 'get a towel ready' and 'you need finger action'. The appellant's wife said that she confronted the appellant about the video footage and the text messages. According to the wife, he told her that the complainant had been pleading with him to send her the video footage and, after a number of days, he had succumbed. The wife added that he told her that he had been worn down by the complainant's persistent talk about sexual matters and her desire to engage with him on that level. The appellant maintained that he had merely participated in 'stupid games' with the complainant.

29 The complainant gave evidence that she did not inform anyone about any of the incidents, the subject of the counts in the indictment, at the time or shortly after they occurred. She did not tell anyone about what had happened until she confided the information to a former boyfriend in about late May or early June 2010. Shortly afterwards, a complaint was made to police.

30 The appellant did not give sworn evidence at the trial.

31 His case at trial was that he had never engaged in any sexual activity with the complainant.

32 As to count 6, the appellant's case was that the complainant had asked him to look at a pimple on her buttock. He refused. The complainant then pulled down her pants and bent over. The appellant protested. He asked her to put her clothes on again. However, the appellant admitted looking at the complainant for about 15 - 20 seconds while she was bent over. At this point, his wife walked into the room.

33 The defence asserted that the complainant was not a reliable witness. She was highly sexualised at an early age, and she did not have normal attitudes or inhibitions towards sexual behaviour that might be expected of a child aged between 13 and 16 years. By the time she came to live with the appellant and his wife, the complainant was psychologically damaged, manipulative and difficult, and she was sexually uninhibited. The defence suggested that the complainant may have fabricated the allegations against the appellant because he had refused to sign her driver's licence log book. It was also suggested that there was ongoing tension between the complainant and the appellant's wife, which culminated in the wife giving the complainant a week's notice to vacate the home, and this may also have prompted the complainant to fabricate the allegations.

The appellant's video-recorded interview with police

34 In about July 2010, the appellant was informed about the complainant's complaint.

35 On 5 August 2010, he participated in a video-recorded interview with police.

(a) The appellant admitted having sent the video footage and the text messages to the complainant.

(b) He denied, however, that any sexual activity had ever occurred between them.

(c) The appellant described his relationship with the complainant as 'very good' (VROI 5).

(d) The police put to the appellant the substance of the allegations concerning each of the counts in the indictment, and the appellant asserted emphatically that the alleged sexual activity had not happened (VROI 15 - 22).

(e) As to count 2, the following exchange occurred:

Q ... it was the first time she can remember the two of you having vaginal sex in your bedroom. She said '[the appellant] was behind me having sex, his penis was in my vagina and he was having sex with me.' 'I can remember getting a bit freaked out about getting pregnant and saying something about it.' '[The appellant] said something about pulling out'.

A. No.

Q. No?

A. Absolutely not. And I've spoken to my wife about this and I just don't understand where that's coming from (VROI 15).

(f) The police asked the appellant, in relation to count 3, whether he recalled a time when the complainant may have been in the spare bedroom with him and, for any reason, she hid behind a door when the appellant's wife approached (VROI 16). The appellant responded, 'Absolutely not' (VROI 17). He said 'It did not [happen]' (VROI 17). The appellant then offered this explanation as to why he would on occasions sleep in the spare room:

The only reason why I would sleep in the spare room is if I was snoring and [my wife] had woken me up and asked me to ... move out of the room (VROI 17).

(g) As to counts 4 and 5, the following exchange occurred:

Q. [The complainant] says that you were in the pool. [The wife] was inside, she doesn't know what she was doing. She thinks she was wearing a bikini and you were wearing board shorts. 'That [the appellant] put his hands down the front of my pants and was penetrating my vagina with his fingers. I also remember masturbating his erect penis'. 'I can remember stopping because [the wife] came out [to] the pool'.

A. Absolutely not.

Q. No?

A. No. We have played games in the pool and then throwing balls at each other and all that sort of stuff, but we never did any of that sort of stuff (VROI 17).

(h) As to count 6, the following exchange occurred:

Q. ... [The complainant] says that you were in her bedroom. She was standing at the foot of the bed and that you were behind her with your penis in her vagina, you were having sex. And then the next thing she knows you quickly pulled your pants up and, sort of, headed off back down the hallway and [the wife] was standing in the hallway. From there, there was obviously an argument between you and [the wife]. What happened ... when [the wife] caught you looking?

A. She came round the corner and saw me looking. Basically, I was very embarrassed, obviously. I obviously walked past her and stood at the doorway which was obviously leading into the rooms. And [the complainant] had said 'dad's just - dad's just looking at a pimple on my bum, dad's just looking at a pimple on my bum.' And [the wife] told me to go and pack my bags and get out. She reckons she knows what she saw, which was just me being aroused.

...

Q. Yeah. [The wife] says that you were going to the toilet shortly after that and saw your penis semi erect. [The complainant] says that the two of you initially had a discussion and you said it was a pimple. [The complainant] heard this discussion between the two of you and - - -

A. [The wife].

Q, [The wife] came in, she continued that lie and said 'yeah, it was a pimple.' At which point [the wife] said 'show me.' And when she couldn't she said that she wanted to - all she said to [the wife] was 'yeah, okay, I wanted [the appellant] to look or to touch me.' Do you recall that?

A. Yes, I do.

Q. Yeah. Would you- - -

A. I don't remember (indistinct) I mean, at the end of the day all I remember is that she had yelled out to mum when we got back into the room 'all it was, I had a pimple on my bum, I had a pimple on my bum, that's all I was trying to show him.'

Q. Do you remember when that was? Was it a specific day?

A. It would've been a weekend because of the fact that I wasn't at work.

Q. Okay.

A. I'm assuming it was a weekend because it - I think it was in the afternoon, so I'm assuming it was on the weekend because of the fact that I wasn't at work.

Q. So there's nothing out of the ordinary about that day that sticks in your head?

A. No, not that I can recall.

Q. Okay. [The wife] has a recollection that she thinks it might've been Australia Day, because she remembers that night watching or listening to fireworks in the distance with you guys.

A. No, I don't have a recollection of that, I'm sorry.

Q. Okay.

A. All I know is I wasn't at work, that's all I know. Sorry, I have no recollection of that (VROI 20 - 22).

37 The proposed ground of appeal alleges that a miscarriage of justice occurred at the trial as a result of the trial judge's failure to give the jury 'an adequate Longman direction' in relation to each count in the indictment.

38 Counsel for the appellant submitted, in essence:

(a) The incidents, the subject of the counts, happened some years before the making of the complaint and, as a result, the appellant was at a significant forensic disadvantage.

(b) The trial judge should have warned the jury of 'the actual prejudice suffered by the [appellant]' as a result of the time which had elapsed since the alleged incidents, and should have directed its attention to 'the specific difficulties and forensic disadvantage' which arose as a result of the delay in making complaint.

(c) The trial judge failed to warn the jury of 'the loss of chance to adequately marshal a defence suffered by the [appellant]'.

(d) The trial judge should have 'clearly warned' the jury of 'the loss of chance the [appellant] suffered to test the complainant's evidence'.

39 Counsel for the appellant also advanced these more specific arguments:

(a) as to count 3, 'if ... there had not been the delay, [the appellant] could have addressed the spare room issue and the times when his wife would ask him to go and sleep in that room' (appeal ts 4);

(b) as to counts 4 and 5, '[the] wife could have been asked about whether they were playing games in the pool or given evidence about what they were doing when she went out and saw them in the pool' (appeal ts 5);

(c) as to count 6, if the delay had not happened then the appellant would have had a better recollection as to the particular day on which the incident occurred (appeal ts 5 - 6);

(d) generally, if the delay had not happened then the appellant would have had:

(i) a more specific recollection of events that occurred at material times and of the particular configuration of the house (appeal ts 9); and

(ii) an opportunity to arrange for the forensic testing of 'items including, but not limited to, bed sheets and clothing' for DNA (written submissions par 19).

40 The trial judge gave these directions to the jury in the course of her summing up:

[I]t is for the state to prove each charge and even if you are satisfied that [the complainant] was an honest witness not setting out to fabricate, she was still talking about matters said to have occurred between four and six years ago. You must be satisfied she is reliable in her account. The passage of time means that naturally some details will be lost to her memory, but can she be reliable in her recall of the essential facts of the incidents?

Because of the long delay between the alleged incidents and [the appellant] first speaking to the police and having those allegations put to him, certain opportunities to test [the complainant's] account have been lost.

Had she made a formal complaint soon after the first alleged incident or soon after any alleged incident on the indictment, then the offence might have been described as having taken place at a particular date, a particular time.

When [the appellant] was interviewed by the police, he too was having to remember back two years ago. It would obviously have been easier had he been questioned back at the time of the alleged events. His wife could also have been questioned back at the time of the alleged events as to where she was at the time and obviously it would have been easier for her to recall details if she had been questioned soon after an alleged incident.

Perhaps photographs of the [appellant's home] would have been put before you if a formal complaint had been made back at the time so you could see for yourselves the hallway and the distance between rooms and the like and the layout of the room, whereas, of course, the family has not lived in that house for years now and you are considering the layout of the house based upon [the complainant's] best attempts to draw a mud map of it.

So the delay has put [the appellant] at certain disadvantages. Because of that delay between the alleged events and [the complainant] reporting them to the police and [the appellant] hearing them from the police, it is important that you scrutinise [the complainant's] evidence with special care and this direction which I give you is based upon the experience of the courts of the difficulty that accused people have in cases like this.

You can act upon [the complainant's] evidence alone to convict [the appellant] if you are satisfied of the truth and accuracy of it but it would be unsafe to convict [the appellant] on her evidence alone unless, having looked at that evidence carefully, having considered the factors I have just mentioned and taken full account of this warning that I am giving you, you are satisfied beyond a reasonable doubt of both its truth and its accuracy (ts 300 - 301).

The Longman warning: applicable legal principles

41 A judge in a criminal trial is obliged to give a warning to the jury if, in the circumstances of the particular case, the warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J).

42 In Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, the accused was convicted on two counts of indecent dealing with his step-daughter. The complainant was aged 6 years when the first alleged offence occurred, and was 10 at the time of the second. The complainant's allegations were not corroborated and the trial occurred more than 20 years after the second alleged offence. The accused denied that the incidents occurred. The accused's counsel requested the trial judge to give the jury a warning about acting on the uncorroborated evidence of the complainant. The trial judge declined to give a warning. The accused was convicted. The High Court allowed the accused's appeal, quashed the convictions and ordered a new trial. The court held that s 36BE(1)(a) of the Evidence Act 1906 (WA) (which has been superseded by s 50 of the Evidence Act) dispensed with the requirement to warn of the danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class, but did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them ... That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's [sic] recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury (91).

44 Their Honours then set out the required warning:

The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, 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 (91). (emphasis added)

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 (91).

46 Deane and McHugh JJ agreed, in separate reasons, that the appeal in Longman should be allowed. McHugh J made these observations:

To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony (108).

47 In Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, Gaudron, Gummow and Callinan JJ referred to Longman, and said:

There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result [42]. (footnotes omitted)

48 The appellant in Crampton was a primary school teacher between 1978 and 1988. He taught children with learning disabilities. In 1997, two of his former pupils made complaints about alleged sexual misconduct by him in their presence. On the basis of those complaints, the appellant was charged with and tried on five counts. The jury was unable to reach agreement on four of them. It convicted the appellant on the other count. The count on which a verdict of guilty was returned was alleged to have occurred between 31 July 1978 and 1 October 1978. The appellant gave sworn evidence at the trial. He denied that any sexual activity of the kind alleged in the count in question had occurred. The High Court allowed the appellant's appeal against his conviction. The court applied Longman and held that the trial judge should have given the jury a specific warning of the danger, given the delay between the alleged offence and the complaint, of convicting on the uncorroborated evidence of the complainant.

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 ... 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. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion [45]. (emphasis added)

50 In Crampton, Hayne J noted the critical feature of the facts and circumstances of that case, namely, 'many years had elapsed between the time of the alleged conduct and the accused being put on notice of the allegation' [140]. His Honour added:

That lapse of time inevitably meant that the accused was put at a significant disadvantage, of a kind and to an extent which a jury might not appreciate without proper direction [140].

See also Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [41] - [55] (Gaudron & Callinan JJ), [115] - [142] (Kirby J); Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [21] (McHugh J), [54] - [58] (Kirby J), [127] - [131] (Callinan J); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [131] - [133] (Callinan J), [169], [186] (Crennan J).

51 So, the rationale for giving a Longman warning is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. For example, after a substantial delay, the complainant may be unable to recall or ascertain the precise date of the alleged offence or the detailed facts of the alleged offending; the accused may be unable to investigate whether the complainant's evidence is contradicted by or inconsistent with the surrounding circumstances at the time; and the complainant, the accused and potential witnesses are likely to have a diminished recollection of relevant events at the time. As McLure P noted in FJL v The State of Western Australia [2010] WASCA 8, the forensic disadvantage is actual even if it is confined to the loss of a chance [2].

52 When a Longman warning is necessary, the trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice. See Crampton [142] (Hayne J); AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 [17] (Steytler P); FJL [20] - [28] (Wheeler JA, Pullin JA agreeing); MAS v The State of Western Australia [2012] WASCA 36 [18] - [20] (Martin CJ, Pullin & Mazza JJA agreeing).

53 However, a Longman warning has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice. See Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 [37] (Owen J, Pidgeon & Ipp JJ agreeing); Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [17]- [18] (Murray J, Malcolm CJ agreeing), [63] - [66] (Parker J); FJL [24] (Wheeler JA, Pullin JA agreeing); MAS [28] (Martin CJ, Pullin & Mazza JJA agreeing).

The merits of the proposed ground of appeal

54 The fundamental facts in Longman, Crampton, Doggett, Dyers and Tully, were these:

(a) In Longman, the complainant was aged 6 and 10 when the alleged offences occurred. Her evidence was that on both occasions she had been asleep and had been awakened by the appellant touching her genitals. The relevant delay was more than 25 years, in the case of the first offence, and more than 20 years, in the case of the second.

(b) In Crampton, the complainant was a primary school pupil when the alleged offence occurred. The relevant delay was about 19 years.

(c) In Doggett, the complainant was aged between 8 and 15 when the alleged offences occurred. The relevant delay ranged from 12 to 19 years.

(d) In Dyers, the complainant was aged 13 when the alleged offence occurred. The offending happened only on one occasion. The relevant delay was about five years.

(e) In Tully, the complainant was aged between 9 and 10 when the alleged offences occurred. The relevant delay ranged from about two to three and a half years.

55 In the present case, the complainant was aged either 13 or 14 when the alleged offences occurred and the relevant delay ranged from about three to four and a half years. The complainant gave evidence of regular 'consensual' (in the sense that she did not object and, indeed, cooperated) sexual encounters she had with the appellant (in addition to the incidents charged in the indictment) and, on her evidence, these encounters continued after she turned 18 in 2010.

56 The trial judge directed the jury, in essence, that:

(a) The alleged offending occurred between four and six years before the trial.

(b) As a result of the long delay between the alleged offences and the initial contact between the appellant and the police in relation to them, certain opportunities for the appellant to test the complainant's account of the incidents had been lost.

(c) If the relevant delay had not occurred then better particulars may have been given to the appellant of each alleged offence; notably, the precise date and time of the offending.

(d) The relevant delay had affected the capacity of the appellant and his wife to recall the alleged events. It would have been easier for them to recall relevant details if they had been informed promptly of the alleged offending and questioned promptly.

(e) If the relevant delay had not occurred then photographs of the appellant's home could have been taken which would have enabled the jury to have a better understanding of the layout of the home. At the time of the trial the appellant's family had not lived in the appellant's home (where counts 1, 2, 3, 4 and 5 had allegedly occurred) for some years.

(f) As a result of the relevant delay, it was important that the jury scrutinise the complainant's evidence with special care.

(g) The jury could act upon the complainant's evidence alone to convict the appellant if it was satisfied as to the truth and accuracy of her evidence, but it would be unsafe to convict the appellant on her evidence alone unless, having scrutinised her evidence carefully, having considered the factors arising from the delay that her Honour had mentioned and having taken full account of her Honour's warning, it was satisfied beyond reasonable doubt as to the truth and accuracy of the complainant's evidence.

57 At trial, the appellant's experienced defence counsel did not request her Honour to give the jury a redirection or an additional direction.

58 As I have mentioned, the appellant did not give sworn evidence at the trial. There was no evidence from him as to any particular forensic disadvantage he had suffered as a result of the relevant delay. In the circumstances, on the case law, the existence of actual disadvantage was to be presumed or inferred from the lapse of time.

59 In my opinion, no complaint can reasonably be made about the Longman warning given by the trial judge to the jury. The proposed ground of appeal has no reasonable prospect of success. My reasons for these conclusions are as follows.

60 First, her Honour gave directions as to the loss of a chance adequately to test the complainant's evidence and the loss of a chance adequately to marshal a defence, and these directions were related or tailored adequately to the facts and circumstances of the case. In his defence, the appellant denied that any of the alleged offences had occurred or that he had engaged in any other sexual activity with the complainant. He did not give evidence of any particular forensic difficulty he had encountered. In these circumstances, the only prejudice reasonably to be presumed or inferred from the delay was the prejudice mentioned by her Honour; that is, the absence of particularity in relation to the precise date and time of the offending; the diminished recollection of the appellant and his wife in relation to relevant events at the time; and the loss of the ability to obtain photographs of the appellant's home.

61 Secondly, it may be assumed, in the context of count 3 and as submitted on behalf of the appellant, that the appellant and his wife would have been unable to recall with any precision 'the times [in 2006] when [the appellant's wife asked him] to go and sleep in [the spare] room' (appeal ts 4). However, there is no reasonable possibility that the appellant or his wife would have had such a recollection after a modest or moderate (but not a substantial) delay in a complaint being made and brought to the appellant's attention.

62 Thirdly, it may be assumed, in the context of counts 4 and 5 and as submitted on behalf of the appellant, that if a complaint had been made and brought to the appellant's attention promptly after the alleged offences, then the appellant's wife 'could have been asked about whether they were playing games in the pool or given evidence about what they were doing when she went out and saw them in the pool' (appeal ts 5). However, it was not in contest at the trial that the appellant and the complainant swam and played games in the pool with each other. See, for example, the appellant's comments at VROI 17. The critical point is that the appellant's wife was called by the State as a witness but she did not say in evidence that she had seen the appellant indecently dealing with the complainant as alleged in counts 4 and 5 (that is, by the appellant touching the complainant's vagina and procuring her to touch his penis). If the wife had seen this behaviour there can be no doubt (based upon her reaction in the context of count 6) that she would have confronted the appellant and the complainant immediately about the matter. The complainant gave evidence that the offending alleged in counts 4 and 5 ceased when the wife left the house and approached the swimming pool. Even if the wife had given evidence to the effect that she saw nothing incriminating in the appellant's conduct when she approached the swimming pool, and the appellant and the complainant were merely playing innocent games, that evidence would have been equivocal. The point which counsel for the appellant sought to make does not establish any possible prejudice to the appellant as a result of any delay, let alone a substantial delay.

63 Fourthly, it may be assumed, in the context of count 6 and as submitted on behalf of the appellant, that if the delay had not happened then the appellant would have had a better recollection as to the particular day on which the incident occurred (appeal ts 5 - 6). However, it was not in contest at the trial that an incident had occurred at the motel where the appellant, his wife, their baby and the complainant were staying. The account given by each of the appellant, his wife and the complainant included statements to the effect that the wife had disturbed the appellant and the complainant while the appellant and the complainant were in the complainant's bedroom, the complainant was naked beneath the waist and bent over, and the appellant was looking at her buttocks. The critical issue was whether the appellant had been having sexual intercourse with the complainant before they were disturbed. The precise date on which the incident occurred, and the appellant's inability to recall the precise date, were irrelevant to any issue at the trial.

64 Fifthly, there is no merit in counsel for the appellant's submission that if the delay had not happened then the appellant would have had an opportunity to arrange for the forensic testing of 'items including, but not limited to, bed sheets and clothing' for DNA. As to counts 1, 4, 5 and 6, there is no reasonable possibility that any exculpatory evidence (that is, evidence of the absence of the complainant's DNA) would have been obtained from any items, even if a complaint had been made and brought to the appellant's attention with reasonable promptness. No 'items' were involved in the offending alleged in those counts. As to counts 2 and 3, any possibility of obtaining exculpatory evidence (that is, evidence of the absence of the complainant's DNA) on particular items in the appellant's bedroom, or the spare room where he slept occasionally, would have been lost in the ordinary course (for example, by the washing of sheets) within a very short period (measured in hours or a few days). It is true that if the appellant and the complainant had undergone a medical examination promptly after the alleged offending, this examination may have revealed the absence of any incriminating DNA on the appellant's genital area and clothing and on the complainant's genital/anal area and clothing. However, any such evidence would have been lost (for example, by showering or washing) within a very short period (measured in hours or a few days). The point sought to be made by counsel for the appellant is unrelated to the occurrence of any material delay, let alone a substantial delay.

65 In my opinion, the Longman warning given by the trial judge was adequate to ensure a fair trial and to avoid any perceptible risk of a miscarriage of justice.

66 The proposed ground of appeal is without merit. I would, for that reason, refuse to grant an extension of time to appeal. The application should be dismissed.