Criminal law - Appeal against conviction - Longman warning - Forensic disadvantages suffered by accused after lengthy delay - Whether retrial should be ordered

Evidence Act 1906 (WA), s 36BD

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

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

Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427

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

Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434

Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437

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

Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397

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

1 McLURE P: I agree with the orders proposed by Wheeler JA generally for the reasons she gives. However, I propose to make some short observations on grounds 1 and 3.

2 The State conceded that the delay between the date of the offence and the time at which the appellant first became aware of the complainant's allegations required a warning in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. A Longman warning is required because, inter alia, a jury might fail to appreciate that after a long period of delay an accused is forensically disadvantaged by losing a chance to adequately test the complainant's evidence or to adequately marshal a defence: Longman (91); Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 [45]; Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [177]. There are two points to note from this statement of principle. First, the forensic disadvantage is actual even if confined to the loss of a chance or opportunity. Secondly, there are two limbs to the forensic disadvantage being the loss of a chance to adequately test the complainant's evidence or adequately marshal a defence. The direction given by the trial judge did not refer to an actual loss of opportunity but the possibility of a lost opportunity and he confined the possible loss of opportunity to the second limb (to marshal a defence) without reference to the first limb (to adequately test the complainant's evidence).

3 Further, where there are such forensic disadvantages, the jury must be directed (in effect) of the need to scrutinise the evidence of the complainant with great care and convict only if, notwithstanding the forensic disadvantages, they are satisfied beyond reasonable doubt of the truth and accuracy of the complainant's evidence. The trial judge's direction went no further than directing the jury that they must take into account that the appellant may have lost an opportunity to marshal a defence. A direction in those terms is not in accordance with binding authority.

4 Ground of appeal 3 relates solely to the offence the subject of count 7 on which the appellant was convicted. The complainant, the complainant's father and the appellant all gave evidence of an incident that occurred in the study at the home of the complainant and her father. The prosecution case was that the complainant's father walked in on the appellant and the complainant very shortly after the appellant had indecently dealt with the complainant.

5 The complainant lived with her father. The appellant was staying with them while he was working in Perth. The appellant had a makeshift bedroom in the study. The complainant's evidence was as follows. After having showered, the appellant was seated at the desk of the computer in the study. He was in his underpants (red jocks). The complainant came into the study and sat on the desk waiting to use the computer. The appellant walked in front of the complainant and opened her legs so he could stand between them. He pulled his underpants aside and exposed his penis, pulling her hand towards his penis before she pulled her hand back. Then the appellant, with his hands, rubbed the complainant's legs and her vagina on the outside of her clothes. The complainant heard her father open the front door of the house which is adjacent to the study. On seeing her father, she quickly pushed the appellant back so she could get off the desk and ran into the bathroom. The complainant said:

I didn't know what to do, so I just ran into the um, bathroom, just next to that, and um, he, like, asked what was going on, and [the appellant] just told him that he'd fallen over, while he was putting his jocks on and that, and I was helping him up (AB 52).

6 The complainant's father said he arrived home from work a bit early and walked in through the front door. The study was immediately to the right. He saw the appellant in his underpants sort of slumped over. He took one step inside the door and saw the complainant running through the bathroom out towards the kitchen. The complainant's father said to the appellant 'What's wrong' and the appellant said words to the effect that he had just got out of the shower and fell over and the complainant was helping him up. The complainant's father then asked the complainant what had happened and she said the appellant fell over and she was helping him up.

7 The appellant left the house the following day although he was scheduled to stay longer. The complainant's father spoke to the complainant the next day and said to her 'If anything happens, you can talk to me'. He was asked whether he spoke to the appellant again about the incident. He said:

No, I - I was - it sort of - I - I was - I or was unsure of - you know, whether it was - whether it was innocent or, and they were just flustered, you know, just because - you know, it was all innocent or - or - or whether something was going on, I don't know. So I didn't have any real proof or - or anything.

Okay. Who was flustered---Both of them.

Okay--Both [the appellant] and [the complainant].

All right. When did you see [the appellant] flustered---Well, as soon as I - as soon [as] I walked in (ts 115).

8 The appellant gave evidence that the complainant probably panicked and went into the bathroom because she was unable to help him up.

9 The direction of which the appellant complains is in the following terms:

It was said by the State that you might find some support, but you [would] find some support - for the evidence of the complainant in respect to count 7 in particular, from the evidence of [her father] who immediately drew the conclusion that the situation presented himself on entering the house, it suggested some impropriety and it would seem from the [appellant's] evidence that he accepts that the complainant's reaction on the - rather of her father, was unusual (ts 211).

10 The complainant's father did not expressly state in evidence that he drew the conclusion that the situation presented to him on entering the house suggested some impropriety. However, the objective facts of which the complainant's father gave evidence, in particular the flustered state of the appellant and the complainant and the complainant's flight from the study, justified a suspicion of some impropriety. That the complainant's father saw the situation in that light is apparent from the reasons he gave for not raising the matter again with the appellant and what he said to his daughter the following day. The trial judge used a shorthand expression to capture these points. I agree with Wheeler JA that the trial judge's error is one of expression not of substance and does not give rise to any miscarriage of justice.

11 On 13 July 2009, the appellant was convicted of two offences and acquitted of a further five. The offences for which he was convicted were sexual penetration of a child aged less than 13 years (count 1) and indecently dealing with a child aged between 13 and 16 years (count 7). On 21 August 2009, the appellant was sentenced to a total effective sentence of 18 months' imprisonment, with parole eligibility. On 5 November 2009, I granted leave to appeal against conviction on ground 1 of the appellant's case and referred the question of leave on grounds 2 and 3 to the hearing of the appeal.

12 The complainant's account of the offences was as follows.

13 The complainant is the daughter of the appellant's wife's son (his step-granddaughter). The complainant's parents separated when she was a baby. From a young age, the complainant lived with her father and, from around the age of eight, the complainant would spend school holidays with the appellant and his wife.

14 The indictment alleged that the offence the subject of count 1 occurred on a date unknown between 22 March 2001 and 23 March 2004. However, it appears that the most probable time was when the complainant was aged nine, in 2002 or 2003. The appellant's wife had gone out, leaving the appellant and the complainant home alone. The complainant told the appellant she had a sore back and asked for a massage. The appellant then massaged the complainant on the arms, legs and back, before pulling her underpants to one side and inserting a finger into her vagina. The complainant's evidence appears to have been (there is some possible ambiguity in what she said) that, at a time close to that event, she went to the toilet and noticed blood in the toilet bowl.

15 The second offence for which the appellant was convicted, count 7, was alleged to have taken place when the complainant was 13 or 14 years of age, in early 2007. The appellant was staying in the study of the complainant's father's house while working in Perth. The complainant came home from school while her father was still at work and the appellant was at home. She came into the study, which the appellant was using as a makeshift bedroom, and sat on the desk waiting for him to finish with the computer. He walked in front of her and opened her legs so he could stand in between them. He pulled his underpants aside and exposed his penis, pulling her hand toward his penis before she pulled it back. He began to rub her legs then rubbed her vagina from the outside of her underpants. The complainant heard her father come home, pushed the appellant back and ran into the en suite bathroom. Her father asked what had happened and if the appellant had done anything to her. She told her father that the appellant hadn't done anything to her. Her evidence was that the appellant told her to tell her father that he had fallen over while putting on his underpants and that she had come to help him.

16 The complainant did not tell anyone about any sexual abuse by the appellant until mid-November 2007. She first told a school friend, who urged her to tell her mother. After she told her mother, her mother contacted the police.

The learned trial judge made a wrong decision on a question of law, or there was a miscarriage of justice occasioned, by failing to warn (or adequately warn) the jury of the prejudice suffered by the appellant arising out of the delay between the date of the offences and the time at which the appellant first became aware of them.

18 His Honour gave the following direction (at ts 202) concerning the delay in making a complaint:

We all know that the greater the passage of time that passes between something happening and your being asked to talk about it, the more likelihood there is for error coming in for any number of reasons. In this respect when evaluating the evidence and the accused's response to the allegations that have been made by the complainant, you would bear in mind that he was first made aware of the allegations in late November '07, some years after the matters the subject of the earlier counts in the indictment. And with the years that have passed or the years that passed between the alleged events were said to have occurred and the accused being asked to address them, he may have lost the opportunity that he otherwise had of giving - of meeting those allegations, that is of giving details, specific details as to the situation existing at the time. For instance, if it was asserted against you that you'd parked your car in a no parking bay this morning when you came to court to give evidence, you'd be able to say, "Well, that's not correct, I came on the bus or I parked my car here, I parked" - if someone came up to you in 5 years' time and said you parked your car incorrectly when you were on jury duty five years ago, probably all you can then say is, "Look, I didn't. I wouldn't have," but you can't give the surrounding details which make the explanation more readily acceptable. And so that's a factor that you take into account of course, in evaluating the evidence that's been placed before you. In giving you that direction, I'm not suggesting that any view I have of the evidence, because it's not my task as I've said to determine the validity of the evidence, it's simply a matter that must be taken into account in an evaluation of the material that's been placed before you. (Emphasis supplied)

19 His Honour directed the jury as required by s 36BD of the Evidence Act 1906 (WA), and consistently with Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.

20 In Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 91, the majority (Brennan, Dawson and Toohey JJ) said:

But there 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: see R v Spencer. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (New South Wales)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury was 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. (Emphasis supplied) (footnotes omitted)

21 McHugh J also said, at 108, that the accused suffered a disadvantage caused by his inability to test the complainant's evidence:

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.

22 In Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 at [45], a majority of the High Court (Gaudron, Gummow and Callinan JJ) held that the following warning about the dangers arising from delay was required:

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. ... 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 supplied)

McHugh J agreed with Gaudron, Gummow and Callinan JJ.

23 Hayne J in that case that said, at [142], that the Longman warning is:

a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. (Emphasis supplied)

24 It appears from the passages to which I have referred that there is binding authority which requires that, in every case where there has been substantial delay between offence and complaint (or perhaps more accurately, substantial delay between the offence and the offender becoming aware of the complaint), it is necessary to direct the jury that the evidence of the complainant cannot be adequately tested after the passage of that period of time, and that the jury must, for that reason, scrutinise the evidence of the complainant with care and convict only if satisfied that, despite that circumstance, they are able to be satisfied of the truth and accuracy of the complainant's evidence. I do not suggest that what I have just said amounts to a formula, which must be recited on all occasions. However, it appears that the common element in the passages to which I have referred is that the jury is to be warned that the accused is at a disadvantage in being unable to adequately test the complainant's evidence.

25 I have used the terms "warning" and "direction" interchangeably above, because it does not seem to me that there are three categories of matter contained in a judge's direction to a jury, consisting of directions of law, warnings, and observations on the facts. There are two categories, being directions of law, which a jury must follow, and observations on the facts, to which the jury may have regard as they see fit. A warning is a direction of law concerning the manner in which the jury must approach the evaluation of a particular item of evidence: Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at [49] - [50]; Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 at [16].

26 By contrast with the authorities referred to, his Honour's direction referred to the difficulty of accurately remembering things which had occurred in the past and the difficulty which the accused faced in giving evidence himself as to his recollection of relevant matters. His Honour gave an illustration of those sorts of difficulties.

27 In saying that the delay and the difficulties to which he referred "must" be taken into account in evaluation of the evidence, it appears to me that his Honour was giving the jury a direction concerning the delay. Whether he did so in terms which were firm enough to ensure that the jury would understand that they were required to have regard to that direction, may be a matter for debate. However, it is sufficient to dispose of this appeal for me to observe that there was absent from his Honour's direction any reference to the forensic difficulty in testing the complainant's evidence which the appellant is, as I understand it, presumed as a matter of law to face where there has been significant delay. Counsel appearing for the respondent at the hearing of this appeal conceded, properly, that his Honour had not adverted to that matter.

28 In my view, the omission of a reference to the forensic disadvantage to which I have referred had the result that his Honour failed to give a direction which was required as a matter of law in a case where there had been significant delay. I do not understand it to have been in question that the delay in the present case, in relation to count 1, which was approaching four years (if regard is had to the evidence), or approaching seven years (if regard is had to the range of dates on the indictment) was to be regarded as "significant" so as to call for an appropriate direction.

29 The respondent did not seek to contend that, if ground 1 was made out, there had not been a substantial miscarriage of justice arising as a result. That undoubtedly was because the case was almost entirely one of oath against oath. The evidence concerning the blood noticed by the complainant in the toilet bowl, which a jury might reasonably infer resulted from some vaginal penetration, was supported to some extent by evidence of the complainant's mother concerning some "spotting" in the complainant's underwear, to which the complainant had drawn her attention at about that time. However, particularly having regard to the way in which the evidence was given concerning that bleeding, both by the complainant and by her mother, the support which her mother's evidence afforded to the complainant's account was relatively weak. In any event, it would appear that even strong corroboration will not justify the application of the proviso in a case where there has been a failure to give a Longman direction. In Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343, there was very strong corroboration in the form of a tape of a telephone conversation in which the complainant confronted the appellant with the allegation that he molested her as a child, and he apologised. Nevertheless, the majority in that case allowed the appeal and quashed the conviction.

30 Ground 1, it is accepted on both sides, can be directly relevant only to the conviction in respect of count 1. So far as count 7 was concerned, the indictment alleged that it was committed between January and June 2007. However, the complainant's evidence indicated that the offence had occurred "around the middle of the year", putting it closer to June than to January. The appellant was interviewed by police in December 2007. Although there are no doubt grey areas in which it is not easy to decide whether a delay is sufficient to call for a Longman direction, a delay of six months plainly does not fall into that category.

31 It was submitted by the appellant's counsel that if a Longman direction had been given in relation to count 1, there would necessarily have been a "flow-on" effect in relation to count 7. That is, it was, in effect, submitted that an unintended consequence of giving such a direction in relation to count 1 would have been to cause the jury to scrutinise the complainant's evidence with even greater care, and so perhaps to fail to be satisfied by her evidence in relation to count 7 also. In my view, it is necessary only to set out the submission to demonstrate that it cannot be sustained. Although it would have been difficult to do so without running the risk of suggesting that there was something particularly reliable about the complainant's evidence in relation to count 7, his Honour would have been justified, at law, in directing the jury in a way which distinguished between counts 1 and 7, in terms of the forensic difficulties which they posed for the appellant. In any event, whatever form an appropriate direction might have taken, the appellant was entitled to a Longman direction only in relation to count 1, and the failure to give it can logically affect only the conviction in relation to count 1.

The learned trial judge made a wrong decision on a question of law, or there was a miscarriage of justice occasioned, by directing the jury that the complainant's father's conclusions drawn from 'the situation that presented himself on entering the house [that] suggested some impropriety' was, on the prosecution case, capable of supporting the complainant's evidence in relation to count 7.

33 The complainant's father gave evidence that he came home from work early one day, walked into the study and saw the appellant as he had come out of the shower, with just red jocks on, slumped over. He also saw the complainant running out of the room. He asked what was happening, or what was wrong, and was told that the appellant fell over coming out of the shower and that the complainant was helping him up. When he asked the complainant about it later she said "[the appellant] just fell over and I was helping him up". The appellant left the next day, although he was originally planning to stay for a few more days. He was asked whether he spoke to the appellant about the matter, and he said (at ts 115):

No. I - I was - it sort of - I - I was - I was unsure of - you know, whether it was - whether it was innocent or, and they were just flustered, you know, just because - you know, it was all innocent or - or - or whether something was going on, I don't know. So I didn't have any real proof or - or anything.

Okay. Who was flustered?---Both of them.

Okay---Both [the appellant] and [the complainant].

All right. When did you see [the appellant] flustered?---Well, as soon as I - as soon I walked in.

And how - how did you come to that conclusion?---It was just a - 'I stood up and' - 'I've just fell' - 'I've just fallen over, you know? [The complainant] was just helping me' - 'helping me up.'

All right?---You know, and then - and [the complainant] was - almost exactly the same. She says, '[The appellant] - I was just helping him up, just helping him up, dad.'

34 The trial judge explained the use of the father's evidence as follows:

It was said by the State that you might find some support, but [sic - that?] you [would] find some support - for the evidence of the complainant in respect to count 7 in particular, from the evidence of [her father] who immediately drew the conclusion that the situation presented [itself] on entering the house, it suggested some impropriety and it would seem from the accused's evidence that he accepts that the complainant's reaction on the - rather of her father, was unusual.

The passage set out above is not quite as it appears in the transcript. I have corrected what both parties agreed was a transcribing error.

35 The submission in relation to this ground is that, although his Honour was summarising the State case for the jury, he did so in a way which would have led the jury to the erroneous conclusion that they could use the father's opinion about the situation suggesting "some impropriety" as evidence supporting the complainant's evidence in relation to this count.

36 It was not submitted that the father's evidence was irrelevant or inadmissible. It plainly was relevant, and corroborative of the complainant's evidence in that, if accepted, it showed that there had been an occasion, sufficiently unusual for the father to remember, when he had seen the appellant and the complainant in close proximity, with the appellant wearing only underwear, and both parties appearing "flustered" in their demeanour. The complaint about his Honour's direction is the legally and logically correct one that the jury could not reason from the father's opinion about that situation towards the guilt of the appellant.

37 I accept that the complaint made in this ground is correct, in the sense that the State did not rely on the father's opinion, but on what he saw and heard; likewise, the jury could not reason from the father's opinion, but from what he said he saw and heard. However, it appears to me that his Honour would clearly have been understood by the jury as using the expression contained in the passage quoted above as a shorthand way of referring to the entirety of the father's evidence about this incident, which was relevant for the purpose contended for by the State. In my view, his Honour was doing no more, and would have been understood by the jury as doing no more, in the passage referred to, than referring the jury to the whole of that evidence, and explaining that it was the State's submission that it could be used for the purpose referred to. The error is one of expression, not of substance, and, in my view, ground 3 is not made out. If it had been made out, I would have been of the view that no substantial miscarriage of justice was occasioned thereby.

38 Ground 2 is another ground concerned with count 1. It is not necessary to deal with it, since I am of the view that the conviction must be quashed in relation to count 1 by reason of ground 1. It would be necessary to deal with it if there was to be a retrial. However, in my view, the court should not order a retrial in relation to count 1.

39 The principles relevant to determining whether there should be a retrial, where a conviction has been quashed, are discussed in Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 at [190] - [196] and Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 at [223] - [231]. In my view, there are four considerations which suggest that, notwithstanding that the offence is a relatively serious one, the appellant should not be retried in relation to count 1.

40 First, the appellant was sentenced to concurrent terms of imprisonment in relation to counts 1 and 7. The sentence in relation to count 1 was 18 months, and in relation to count 7 it was 12 months. On a retrial, it would always be open to a sentencing judge to impose a different sentence, but it is most unlikely that any sentence exceeding 18 months would properly be imposed. The practical effect of any retrial would be limited, in terms of penalty.

41 Second, the appellant is 74 years of age. He is in poor health, having been diagnosed with asbestosis some eight years ago. In addition, he is suffering from a variety of other illnesses.

42 Third, the case against the appellant in relation to count 1 was not particularly strong. Where the evidence consisted solely or largely of oath against oath - that is in relation to counts 2 to 6 inclusive - the jury was unable to be satisfied beyond reasonable doubt of the appellant's guilt. So far as count 1 is concerned, there was the additional evidence of the complainant's mother, but, as I have noted, there was some ambiguity in the way the complainant gave evidence about the bleeding incident, and her account did not entirely coincide with that of her mother, so that the support afforded by her mother's evidence might fairly be regarded as limited.

43 Fourth, there are practical difficulties, the appellant having been acquitted of counts 2 to 6 inclusive, associated with the evidence which could properly be led at a retrial. Counts 2 to 6 inclusive would be relevant propensity evidence. If it were not possible to lead evidence of those events, the State case would consist of two isolated events (counts 1 and 7) separated inexplicably by very many years. That would make the case in relation to count 1 significantly weaker than it was at trial. However, it would be necessary at any retrial to give the appellant the "full benefit" of those acquittals: Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437.

44 I would therefore quash the conviction and sentence in relation to count 1. So far as count 7 is concerned, I would refuse leave to appeal in relation to ground 3 of the grounds of appeal, and would dismiss the appeal.