Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Application for leave to appeal against conviction - Sexual offence - Whether Longman direction required - Turns on own facts

Allegretta v The Queen [2003] WASCA 17

Carroll v The State of Western Australia [2004] WASCA 254

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

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

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

R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241

RBK v The Queen [2004] WASCA 216

1 WHEELER JA: This is an application for leave to appeal against conviction, the sole ground of the proposed appeal being that the learned trial Judge erred in law in failing to warn the jury that it was dangerous to convict on the uncorroborated evidence of the complainant alone. In essence, there is a complaint of failure to give a Longman direction (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79).

2 It seems to me that, for present purposes, it is not necessary to deal with the interesting question of what precisely is the test required for leave. I am prepared to assume that what is set by the statute is a low threshold requiring an arguable case. Turning to the facts of this case, the offence allegedly took place at a party at which the complainant and the appellant were present, the party being the birthday party of a sister of one of the complainant's school friends. The appellant was the de facto stepfather of the school friend. The complainant was 13 at the time.

3 The complainant's evidence was that at one stage during the party there had been some sexually suggestive remarks made to her by the appellant concerning a tongue stud she was wearing. At a later time, she said, she was sitting by herself. She had a headache because of the strobe light which had been used at the party. The appellant approached her. He was said to have taken her and pulled her to the ground and penetrated her vagina with his penis.

4 Her evidence was that she was a virgin at the time and noticed some non-menstrual blood on her underpants later. She was very keen to have a shower the next day, she said, because she felt "yuck". She told no-one at the time. She complained to police approximately nine months to a year after the event in question.

5 There was another witness, a school friend of the complainant, who gave evidence which supported the evidence of the complainant in relation to the conversation concerning the tongue stud, and gave evidence that the complainant was unusually anxious - she used the word "desperate" - to have a shower the following day, but the complainant's evidence as to the sexual assault itself was the subject of no corroboration.

6 So far as the facts are concerned, it seems to me that there are certain facts alleged in the appellant's case, which are the subject of some emphasis, and which are not as accurately stated, or not as completely stated in that case as would be desirable. The first such proposition is that the complainant "had little recall of the day of the sexual assault but agreed she had consumed a lot of alcohol". In the complainant's statement to the police, which was put to her in cross-examination, she said that she did not drink alcohol on the day. She could not recall, during cross-examination, drinking any alcohol. It was then put to her that another witness had seen her drinking alcohol and she then said, "Then I probably was drinking. I can't remember drinking alcohol". She had not had anything to drink before that day, she said, and she agreed that if she had had anything to drink on that day it was probably the first time in her life she had done so. Again she was asked whether she had been drinking and she said she could not remember. Again it was put to her that her "best friend" had said that she had been drinking and she agreed that in that case she probably was. However, she persisted in saying she could not remember drinking. It was suggested to her that she could not remember much about the day in question because she had had a lot to drink, and she agreed with that proposition. She also agreed with the proposition that it was quite likely that she had had a lot to drink during that day and evening.

7 However, when it was yet again put to her that she would agree that, in view of what her friend had said, it was very likely that she had had a lot to drink she said, "No, it's not". The last of the answers she gave in a reasonably lengthy cross-examination about this subject was, "I can't remember drinking at all". The witness referred to in cross-examination, who had also been present at the party, said only that over some five hours she had observed the complainant consume two or three Vodka Cruisers. So far as I can tell there was no evidence as to the alcohol content of Vodka Cruisers but even if the witness was correct in that respect, it does not seem to have been a very great quantity of alcohol.

8 In any event, it is enough for present purposes to note that the question of the complainant's consumption of alcohol (if any) on the evening in question, and of its effect (if any) upon her ability to recall events was thoroughly explored at the trial. The question of the effect of alcohol upon a witness's ability to observe and remember is something which is very commonly in issue in trials and is well accepted as a matter within the ordinary experiences of jurors to understand and evaluate. That subject could not conceivably be the subject of a Longman warning.

9 It was also said in the appellant's case that the complainant had given evidence that she had disposed of the underpants worn on that occasion. Her evidence was, however, that she could not recall whether she had done so or not. There is no suggestion that counsel or solicitors for the appellant had attempted to ascertain prior to the trial whether any inquiries had been made in relation to the underpants, or had even considered it as an issue to explore.

10 Turning to the course of the trial, the only evidence at trial, was the pre-recorded evidence of the complainant and of the other girl who was at the party, also given by pre-recording. The appellant gave no evidence. The trial Judge gave no Longman warning and was not asked to do so. The appellant was represented by experienced counsel.

11 After deliberating for some hours the jury sent a note to her Honour to the effect that they were divided and saying:

"Our dilemma is perceived lack of corroborating evidence. Could we have instructions please?"

12 Her Honour advised the jury that as a matter of law they did not require corroborating evidence. She further told the jury that the prosecution case essentially boiled down to the question of whether they were satisfied beyond reasonable doubt that the complainant was telling the truth. If they were so satisfied they would bring back a verdict of guilty and if not then the verdict would be not guilty. That was correct as a matter of law and no exception was taken by either counsel to it.

13 The appellant contends, relying on Allegretta v The Queen [2003] WASCA 17, per Roberts-Smith J, that the approach taken by Sully J in New South Wales in R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241, should be taken in this case, that being that:

" .... the only prudent approach ... 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."

14 The appellant contends that a delay of nine to 12 months is not trifling and that there is a risk of forensic disadvantage which, as I understand it, is said to be that independent evidence of the complainant's alcohol ingestion was lost and that evidence as to the state of the complainant's underwear was lost. The appellant also submits that independent evidence "that might have indicated [that] what the complainant asserted could not possibly have happened" was lost, but there is no suggestion as to what that evidence could conceivably have been.

15 This submission is not consistent with the state of authority in this Court generally. In Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169, Murray J at [31] noted that the earlier decision of this Court in Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106, was not referred to in Allegretta and did not appear to have been cited in that case. His Honour noted that the summary of the law by Owen J in Christophers was "not on all fours with the summary adopted by Sully J in BWT", which was referred to in Allegretta. Then, in the later case of Carroll v The State of Western Australia [2004] WASCA 254, Roberts-Smith J (at [184]) pointed out that in Allegretta his Honour's observation was that the analysis by Sully J, while of some value, might not be "necessarily strictly applicable in the way presented by his Honour" in Western Australia (Allegretta at [105]). In my view it is not, and has never been, the law in Western Australia that any delay at all between complaint and offence requires a warning.

16 Nor does such a principle follow from Longman. It is convenient to look briefly at later examinations in the High Court of what it was that Longman was concerned with. I note in Crampton v The Queen (2000) 206 CLR 161, Gaudron, Gummow and Callinan JJ at [45] said:

"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." (Emphasis supplied)

A little later in that paragraph their Honours said:

"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."

"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." (Emphasis supplied)

17 As appears from these passages, and as was pointed out in RBK v The Queen [2004] WASCA 216 at [99], the crucial point in relation to Longman is that, not only may the accused be at a forensic disadvantage in testing the prosecution case by reason of the delay, but also that the circumstances may not reveal to the jury that such disadvantage may exist. That is because the jury may not understand that the usual way of testing the evidence of a complainant is, very often, by reference to surrounding circumstances and to details which, while not of significance in themselves, may help to indicate that a witness is either untruthful or unreliable. Those surrounding circumstances and details are precisely what is lost, or potentially lost, when there is a very long delay. Of course, it may also be the case on occasion that because of the delay the details of the offence which can be provided by the complainant are so limited, or the offence was just so long ago, that an accused person will be unable to call to mind or to obtain evidence which might go to the issue of whether the offence was committed, such as alibi evidence.

18 The first observation to be made about the delay in this case is that a delay of nine months to a year is one which is not uncommonly encountered in the investigation of offences in any event, not only in sexual assault cases but in other cases; for example, where the identity of an offender is unknown. It may very often be the case that the accused is not identified or located or spoken to until many months after the alleged date of the commission of the offence. It has never been suggested that those circumstances alone would be sufficient to require a warning in the form of a Longman warning.

19 Turning to the question of whether any forensic disadvantage may have flowed from the delay in this case, there is nothing to indicate it. If one looks to the question of the date of the offence, while the complainant could not recall the date she was able to specify with accuracy the occasion on which the offence allegedly occurred; that is, it was the occasion of the school friend's birthday party. The accused therefore must have been well aware of what the occasion in question was alleged to have been, and in a position to make investigations as to who may have been present. There is no suggestion he was not in a position to recall the occasion or to make inquiries about it.

20 While it may have been the case that the complainant had disposed of her underpants, it must be observed that there is no logical connection between that fact and the delay; that is, if any forensic disadvantage resulted from the absence of that material evidence it was a disadvantage which could equally well have been suffered on the weekend after the offence. There is no evidence of when those underpants were disposed of, if they were disposed of at all. Again, it is not unusual for material which might have been, desirably, available as evidence to be unavailable. For example, in sexual assault cases it is not unusual for complainants to shower or dispose of clothing shortly after an offence, and these are always factors which will be plain enough to a jury in a case in which they are relevant. They may be matters which lead to comment. They are not matters which require a warning.

21 In the present case it is not even clear what forensic disadvantage could have flowed from the unavailability of the underpants. The mere presence of blood on the underpants of the complainant would have proved nothing one way or the other since, as I understand it, it is not suggested that there is any reliable way of distinguishing between menstrual and non-menstrual blood. Testing of the underpants for traces of the appellant's DNA would again have been inconclusive since the complainant was unsure whether or not he had ejaculated.

22 So far as the complainant's alcohol consumption was concerned, there are two points to be noted. One is that it is not common for those who are present at parties to pay very close attention to the alcohol consumption of others present unless those others present are perhaps unusually inebriated or, perhaps, unusually sober. Again, therefore, there is no apparent link between the delay and the absence of such evidence nor, in the present case, is there any suggestion, so far as I can tell, that the appellant would not have been able to find out the names of at least some of those who were present at the party and to question them about whether they recalled the complainant's alcohol consumption. In any event, as I have noted, the question of her consumption of alcohol was something which was vividly before the jury.

23 To sum up, the delay in this case was not, on its face, of a length which would suggest consideration should have been given to a Longman warning. It cannot reasonably be suggested that the delay resulted in any forensic disadvantage, since the forensic disadvantages alleged are those which may well be present in a case in which there has been no delay. The issues which may have affected the complainant's reliability or credibility, namely the question of alcohol consumption and the absence of the underpants, were very clearly placed before the jury. There is no suggestion of any other relevant forensic disadvantage which might have resulted from the delay, let alone a disadvantage which a jury might be unable to appreciate.

24 It is therefore my view that this appeal has no prospect of success and that the application for leave should be refused. I would order accordingly.