Cox v Hollway

1. This is a review appeal brought by the prosecution (appellant) from a decision in the Magistrates Court delivered on 6 August 2024, which dismissed two charges against the respondent of an act of indecency on or in the presence of a person aged between 10- 16 years, contrary to s 61(2) of the Crimes Act 1900 (ACT).

2. The charges related to alleged behaviour by the respondent towards his biological daughter (the complainant). It was alleged that the respondent used his foot to touch the complainant’s vagina while they lay on the couch together, and that he then stood in the doorway of her bedroom and masturbated while she was laying on her bed.

3. The appeal challenged the dismissal of each of the two charges. For reasons that will be explained, error has been established, the appeal will be allowed, the decision to dismiss each information will be set aside and the matter remitted for further determination according to law.

The court’s power and task

4. A review appeal from an order dismissing an information dealt with under the Crimes Act is permitted by statute: see s 207(1) and div 3.10.3, specifically s 219B(1)(a), of the Magistrates Court Act 1930 (ACT) (MC Act).

5. Each information was “dealt with under the Crimes Act” because that statute enables summary disposal of cases where an offence is punishable by imprisonment for a term that does not exceed 10 years: s 375(1)(b)(ii) of the Crimes Act. That section applied here because the acts of indecency charged had a maximum term of imprisonment of 10 years.

6. The available grounds of review are set out in s 219D of the MC Act. Those relied upon here were that: (a) there was a prima facie case of error or mistake on the part of the Magistrates Court: s 219D(a); and (b) the decision of the Magistrates Court should not in law have been made: s 219D(c).

7. Relevant to the complaints in this appeal, I have previously found in Bourke v Styche [2024] ACTSC 62; 21 ACTLR 86 at [54]-[58] that establishing an error of law in the reasoning process enlivened the court’s power to intervene on a review appeal. This was confirmed in Styche v Bourke [2025] ACTCA 5; 393 FLR 303 at [31]-[33].

8. In addition, the complaints in this proceeding involved the giving of directions, which carries with it discretionary considerations. Where the exercise of discretion is involved, principles articulated in House v R [1936] HCA 40; 55 CLR 499 at 505 also inform what might constitute a prima facie case of error or mistake. Relevantly here, acting on a wrong principle of law, taking into account irrelevant matters, failing to take into account material considerations or other legal unreasonableness indicative of misapplication of principle are within the scope of the review grounds specified.

9. This court has various powers to dismiss, set aside or quash, or amend the decision of the Magistrates Court: s 219F of the MC Act. If error is established, the court retains “broad and complementary discretions” under s 219F(1) and (5) of the MC Act to dismiss the appeal: Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 at [84]. The basis and application of the residual discretion was discussed in Harlovich at [2]-[5], with fairness and justice, both to the individual offender and with respect to the administration of justice more generally, guiding the exercise of the discretionary power. Grounds of review

10. The specific complaints made by the prosecution on review were that the learned magistrate erred by: (a) finding that s 80B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) did not apply (Ground 1); (b) directing herself that the respondent had suffered a significant forensic disadvantage in circumstances where the requirements of s 165B of the Evidence Act 2011 (ACT) were not met (Ground 2); and (c) giving herself a direction in accordance with the decisions in Kilby v The Queen [1973] HCA 30; 129 CLR 460 and Crofts v The Queen [1996] HCA 22; 186 CLR 427 (Ground 3).

11. Embedded in those grounds were two points of principle. The first was how a magistrate deals with statutory directions that only apply in jury trials. The second was whether the application of s 80B of the EMP Act was inconsistent with the Crofts direction.

12. The relief sought by the appellant was that the decision in respect of each information be set aside and the proceedings be remitted for hearing before a differently constituted court. Obligations on a magistrate with regard to the application and exposition of legal principles

13. It is appropriate to first make a general observation as to a magistrate’s obligations when it comes to warnings and directions, because this is a common thread in the arguments made with respect to each ground of complaint. Applying DL v The Queen [2018] HCA 26; 266 CLR 1 at [33], which in turn cited AK v Western Australia [2008] HCA 8; 232 CLR 438, at common law, ordinarily it is necessary for a trial judge to: (a) summarise the crucial arguments of the parties; (b) formulate the issues for decision; (c) resolve any issues of law and fact which needed to be determined before the verdict could be reached; (d) explain how competing arguments of the parties were dealt with and why the particular resolution was reached; (e) apply the law found to the facts found; and (f) explain how the verdict followed.

14. This obligation at common law has been set out because it is what guides magistrates in circumstances where they are not under the same statutory obligations found in s 68C(2) of the Supreme Court Act 1933 (ACT). For matters in the Supreme Court without a jury, s 68C requires the applicable legal principles to be recorded and expressly requires judges to take into account the same warnings or directions as would be given to a jury. In the Magistrates Court, at common law the extent to which the reasons record the reasoning process and the findings made very much depends on the nature of the issues in the case: DL at [33].

15. The nature of the jurisdiction also informs the judicial task. In a summary jurisdiction, the reasons must articulate the essential ground or grounds on which the decision rests, although a detailed explanation is not always required: O’Connell v McMennemin [2014] ACTSC 112 at [77]. Appreciating the pressure and realities of the workload in the Magistrates Court, the substance of the reasoning is what is important, not how it is expressed: Greenwood v Barlee [2018] ACTSC 46 at [4]; Wolter v Broomhall [2023] ACTSC 331 at [63]. In partial recognition of that fact, and possibly due to historical reasons concerning appeals from magistrates previously being upon a hearing de novo basis (see Parkinson v Alexander [2017] ACTSC 201 at [84]), statutory directions as to what a judge must record, set out, or apply do not appear in the MC Act.

16. That does not mean the substance of the applicable law in the Territory changes. Just as the essence of the judicial task described above does not change, the applicable legal principles, including how to treat the evidence and permissible reasoning processes, do not change. The Evidence Act applies to all proceedings in an ACT court (s 4) and does not affect the operation of a principle or rule of common law in relation to evidence in a proceeding “except so far as [the] Act provides otherwise expressly or by necessary intendment”: s 9(1).

17. Thus, the legal principles behind each warning or direction do not depend on the legal forum in which the case is being heard or who the fact-finder is; it is just that the law requires the jury to be told certain legal principles about how to treat the evidence before them, otherwise they would not know those principles. The primary purpose of warnings, under the general law, is to share with the jury a special knowledge or appreciation of the evidence, which the jury does not have (by virtue of it being comprised of people who are not practising lawyers): R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 at [118]. See also Bromley v The Queen [1986] HCA 49; 161 CLR 315 at 324 and Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [52].

18. Authorities such as Greenwood and Wolter confirm that a magistrate’s reasoning should reveal in some way that he or she gave effect to the directions and warnings considered applicable. However, while it remains necessary for a magistrate to apply the same directions or warnings in reaching their decision as would be applied where there is a jury, there is considerable flexibility in how that is demonstrated: Wolter at [69].

19. The parties drew the court’s attention to the South Australian case of Beames v Police [2002] SASC 405; 135 A Crim R 447. In that decision, Bleby J (as his Honour then was) observed at [20]: Thus, while a judge or magistrate may not need the type of warning that must be given to a jury, there must be some evidence, usually only to be gleamed from the reasons, that the judge or magistrate has in fact addressed the evidence in the manner that a jury would be required to.

20. I respectfully agree with that statement, which broadly encapsulates the judicial obligation explained above. Further, whether the fact-finder is a judge or a magistrate, a mere incantation of the warnings and directions is unlikely to be sufficient if the reasons otherwise indicate they were not actually applied or taken into account (following Fleming v The Queen [1998] HCA 68; 197 CLR 250 at [33] in respect of a judge alone trial).

21. Finally on this point, and accepting that practitioners in the Magistrates Court face the same burdens of workload, they can assist judicial officers to navigate the at times nuanced legal dance between statute and common law by communicating early with each other about the directions to be sought and the basis for them.

Ground 1 – the substance of s 80B of the EMP Act applied

22. The appellant’s complaint was that the magistrate failed to apply the warning as to delay in making a complaint and engaged in precisely the stereotypical reasoning that the section was introduced to guard against. I agree that is what occurred and will now explain why.

The evidence

23. The complainant was interviewed by police twice, first in 2020 when she was 13 and second in 2022 when she was 15. In the first interview, the complainant disclosed that the respondent had rubbed her inner thigh with his foot. She made no mention of an incident of masturbation. In the second interview, the complainant stated that she had been touched on her vagina, not her inner thigh, and that the respondent had gone on to masturbate while standing in her doorway later that night.

24. She acknowledged this in her second interview: Q227 So when do you think you told your mum about that? A I told her like honestly a couple of months ago. Q228 Oh, OK. A So it’s something that I, um, I didn’t say to the police the first time. Q229 Yep. And, and why is that? A Um, when I was, ‘cause I made the statement when I was about like 12, when I was little, um, if you go back and like listen to it, I’m not saying like, um, erection and penis and vagina. I was really, really like quite embarrassed. Q230 Yeah. A And pretty like disgusted in myself. I don’t know why I was disgusted in myself but it was just like a disgusting thing to say, if you know what I mean.

25. The complainant’s mother was also questioned about a further four-month delay from the time of disclosure to her and when the complainant complained to police: Why was there a four month delay?---Because we – we – it was very delicate and we didn’t know if we wanted to go through the whole police thing again. [The complainant] didn’t know, I didn’t know. We were in different circumstances that impacted on the whole family… The applicable direction

26. The applicable warning about delay is set out in s 80B of the EMP Act. It is in the following terms: 80B Comments about lack of, or delays in making, complaint (1) This section applies if, in a sexual offence proceeding, evidence is given, or a question is asked of a witness, that tends to suggest that— (a) the complainant made no complaint about the alleged offence; or (b) there was a delay in making a complaint. (2) The judge must–– (a) give the jury a warning to the effect that the absence of, or the delay in making, the complaint does not necessarily indicate that the allegation that the offence was committed is false; and (b) tell the jury that there may be good reasons why a victim of a sexual offence may not make, or may hesitate in making, a complaint about the offence.

27. The principle underlying the direction addresses a potential stereotype of how a complainant in a sexual assault matter is “supposed to” or “expected to” behave (the stereotype being that because a victim of sexual assault would report the conduct in a timely manner rather than delaying complaint, the fact of delay suggests the allegation is false).

28. Section 80B of the EMP Act was previously s 71 of the same statute. The section was relocated in the statute and the language updated in 2018, as part of the suite of legislative reforms following the Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Explanatory Memorandum to that legislative response referred to findings of the Royal Commission that many child sexual abuse cases involve significant periods of delay in reporting and that on average, it took 23.9 years for a person to report child sexual abuse: Explanatory Statement, Royal Commission Criminal Justice Legislation Amendment Bill 2018 (ACT) at 23 and 26.

29. The section reflects the evolution of the principle at common law. In Suresh v The Queen [1998] HCA 23; 72 ALJR 769, Gaudron and Gummow JJ stated at [5] (citation omitted): … [T]he assumption that the victim of a sexual offence will complain at the first reasonable opportunity is an assumption of doubtful validity, particularly in cases of child sexual assault. …

30. Similarly, in WS v The Queen [2022] NSWCCA 77; 297 A Crim R 320, MacFarlan JA (with whom Walton and Rothman JJ agreed on this point) stated at [69] that “in earlier times the common law assumed that late complaining cast doubt on the credibility of a complainant but … this assumption no longer has validity, particularly in light of s 294 of the Criminal Procedure Act 1986 (NSW)”. Section 294 of the Criminal Procedure Act 1986 (NSW) is in different terms but addresses the same question of delay in complaint as that to which s 80B of the EMP Act is directed.

31. Stereotypical expectations have been the subject of repeated caution in the authorities, as seen in cases such as Maughan v R [2020] NSWCCA 51, where R A Hulme J stated at [2]: I particularly endorse what their Honours have said about what I would describe as the futility of assessing the behaviour of sexual assault complainants by reference to stereotypical expectations. The criminal law has moved past the era in which this was often prominent in a defence to a sexual assault allegation. Jurors applying a sensible and mature understanding of human behaviour are far less likely now to be persuaded by such propositions.

32. The appellant also drew attention to Harper v R [2022] NSWCCA 211 at [186]-[192], where N Adams J concluded at [192]: It seems necessary to observe yet again that the criminal law has moved on from a time when sexual assault trials were overlaid with antiquated stereotypes about how a victim is supposed to behave. … The magistrate’s reasons

33. The reasoning of the magistrate that the appellant challenges was as follows: I have watched the first interview closely. It was given at a relaxed pace, with plenty of opportunities for the complainant to give a full account of anything that made her feel uncomfortable, or to draw details is she preferred. She was not required to use technical terms such as ‘masturbation’ and could have explained what she heard and saw without saying ‘masturbation’ or even without saying ‘jerking off’. She does not appear to be too embarrassed or too shy to speak with police at that first interview. However, even if she was too embarrassed to say ‘masturbation’ or ‘jerk off’ or ‘erection’ or ‘penis’ or ‘vagina’ or talk about the masturbation incident at all, it is unclear why it took so long, almost three years, for her to become comfortable enough to tell the police, and it’s also notable that in the second interview she still feels a bit like she did in the first interview, which she explains is the explanation for [sic] why she didn’t make a full disclosure. The delay between telling her mother the full extent of the foot-rubbing allegation in about September or October 2021 and telling the policy about a month before March 2022 is inadequately explained. …

34. The magistrate then set out the mother’s explanation, part of which has been extracted at [25] above, before continuing: There was no restriction in attending police stations or telephoning the police during Covid lockdown periods, which in New South Wales ended in about October 2021. I do not find that that explanation is sufficient.

35. Later in the reasons, on the applicable direction, the magistrate stated this in relation to delay: … I give myself the Crofts direction and I do so clearly avoiding the stereotyped view that sexual assault complainants are an unreliable category of witnesses. I don’t hold that view professionally, personally, or at all. The direction I give myself is that delay in complaint may be taken into account in evaluating the evidence of a complainant and in determining whether or not to believe her. I do so bearing in mind section 80B of the Evidence (Miscellaneous Provisions) Act, which does not apply to these proceedings but reminds the fact-finder, who is myself, that delay in making a complaint does not necessarily indicate the allegations are false. I have, however, concluded that there are no good reasons why the complainant hesitated in making the complaints to police a further two years after already making similar but less serious complaints to the police about her dad. Error in stereotypical reasoning

36. The direction itself indicates an appreciation that while the statute did not apply in terms, the substance of the direction or warning as to how to treat the evidence nevertheless applied to the factfinder. The reference to “no good reasons” echoes the statutory language of s 80B, and this might be seen as an example of flexibility in disclosing the principles that the magistrate purported to apply.

37. The difficulty, however, is that the reasons of the magistrate did not accord with the direction given. The direction itself was not in substance applied, as can be seen from the reasoning process that was disclosed.

38. The magistrate’s finding that there were “no good reasons” why the complainant hesitated in making the complaints was based in part on the magistrate’s assessment of demeanour. Her Honour seemingly ignored the fact that this was a child alleging sexual assault against her biological father to strangers (police) and that she had given an explanation for the delay in complaint, namely her youth, her embarrassment and her feeling of disgust in herself (see [24] above). Even in the second interview with police, the complainant was still a child. The magistrate’s statements that there were “plenty of opportunities for the complainant to give a full account of anything that made her feel uncomfortable”, that the complainant “[did] not appear to be too embarrassed” at the first interview, and that “it is unclear why it took so long, almost three years, for her to become comfortable enough to tell the police” mistakenly treated the evidence in precisely the stereotypical manner that the substance of the direction referred to in s 80B of the EMP Act is intended to guard against.

39. Separately, the magistrate’s reasoning relied on a non-sequitur. To say that the complainant did not look embarrassed on close observation during an interview when she did not disclose the allegations says nothing about the complainant’s demeanour if she had talked about the things she said she was embarrassed to raise.

40. While I am prepared to accept that the magistrate recanted a form of the direction, it was manifestly not applied in the reasoning process undertaken. The magistrate’s reasoning process was illogical and based on unfounded stereotypical assumptions. The magistrate ultimately made findings that the complainant was not a reliable witness. The reasons disclose that such a finding was informed in part by the view that the magistrate took in relation to the complainant’s delay in making complaints. The impermissible reasoning process adopted had a material impact on the outcome. Ground 1 is established.

Ground 3 – error is established in the application of the Crofts direction

41. I have dealt with Ground 3 next, as the reasoning that is challenged overlaps with the same part of the magistrate’s reasons set out at [35] above. The appellant challenged the direction the magistrate gave herself, to the effect that delay in complaint could be used to impugn the complainant’s credibility.

42. This is commonly described as the Crofts direction, which incorporated earlier statements of the relevance of delay made by Barwick CJ in Kilby (discussed below). I accept that s 80B of the EMP Act does not preclude the application of the common law with regard to delay in complaint, because Crofts dealt with that issue in the context of Victorian legislation (which was in terms similar to s 80B of the EMP Act) and held that the statute permitted a direction in appropriate circumstances. The appellant did not submit otherwise.

43. The appellant’s argument was that a Crofts direction should not have been given in this case and was part of the magistrate’s misapplied approach to delay or compounded the error in the magistrate’s reasoning.

44. I consider that it is not strictly necessary to resolve whether the Crofts direction was inappropriate in the circumstances of this case. That issue has been overtaken by the finding above as to the misapplication of principle captured by s 80B of the EMP Act, which also flowed into a failure to apply the proper reasoning process in the context of making a Crofts direction. I have dealt with this alternative argument directed to the same passage of reasoning with a view to limiting the scope of dispute going forward in this proceeding as to the intersection between statute and the common law on this point.

The Crofts direction as to the relevance of delay

45. The case of Crofts involved a convicted offender appealing against his conviction of sexual offences. At the time of his trial, s 61(1)(b) of the Crimes Act 1958 (Vic) was in force. It provided as follows: (b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must— (i) warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and (ii) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in complaining about it.

46. As can be seen from a comparison with the terms of s 80B of the EMP Act set out above, the provisions are substantively similar.

47. The trial judge in Crofts warned the jury in accordance with that section and was found to have given an unexceptional warning that delay in complaint in sexual abuse cases does not necessarily mean the allegations are false and that there may be good reasons why victims of sexual assaults hesitate in making complaints about them.

48. However, the issue before the High Court was an additional direction given by the trial judge on the relevance of a six-year delay in complaint. The trial judge had also stated that “as a matter of law” an inference could not be drawn that because the complainant in that case did not complain about the offences immediately after they happened, that they did not happen or that there was consent.

49. The question was whether the Victorian legislation set out above precluded the giving of a direction in terms derived from the case of Kilby, namely that where there has been a failure to make a complaint at the earliest opportunity, that fact may be used to impugn the credit of the complainant.

50. The court in Crofts held that the Victorian provision did not preclude such a direction being given. Toohey, Gaudron, Gummow and Kirby JJ observed at [40]-[41]: 40. … Although the actual decision in Kilby turned upon a disputed confession signed by the accused, the statement of common law principles contained in the judgment of Barwick CJ, as to the significance of a want of timely complaint, was accepted thereafter as stating the applicable law. In appropriate cases juries were told that the absence of timely complaint (if that be their conclusion) was relevant to the credibility of the complainant and a fact to be considered in evaluating the consistency of the complainant's evidence. There might be "many reasons" to explain why the complaint was not made promptly. It was for the jury to weigh up those possible reasons. But it was also for the jury to weigh up the significance of the delay in complaining. 41. Provisions such as s 61(1)(b) of the Act are not, in their terms, addressed to a fundamental alteration of the balance suggested both by commonsense and by the decision of this Court in Kilby. That this is so is clear from the terms of s 61(1)(b) itself. The two subparagraphs within it merely require that the judge should warn the jury that delay in complaining does not necessarily indicate that the allegation is false and that there may be good reasons for hesitation in complaining. The existence of such reasons had already been acknowledged by Barwick CJ in the passage cited. The use of the adverb "necessarily" is critical to the operation of s 61(1)(b)(i). Delay in complaining may not necessarily indicate that an allegation is false. But in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false.

51. As these paragraphs explain, a Crofts direction is not required to be given in every case where there is significant or substantial delay. The judicial duty to assist the jury in the weighing of the potential significance of delay in complaint depends on the circumstances of the particular case: Crofts at 449.

52. The appellant submitted that a Crofts direction cannot sensibly be given alongside a s 80B direction, given that both directions deal with the issue of delay in different ways. I would not construe the section as going that far. In other jurisdictions, the common law relating to recent complaint as articulated in Kilby and Crofts has been expressly abolished. For example, recently in Kennedy v The King [2026] SASCA 10 at [38], the Court of Appeal of South Australia referred to s 34M of the Evidence Act 1929 (SA) which provides: (1) This section abolishes the common law relating to recent complaint in sexual cases. Note – See Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.

53. Words of that explicit kind do not appear in the EMP Act. Because of the similarity in the legislative provision under consideration here, I accept the respondent’s submission that the reasoning in Crofts is of equal application to the legislation in this jurisdiction. The words of s 80B of the EMP Act do not implicitly necessitate the exclusion of a Crofts direction. In an appropriate case, it may assist the jury (or other factfinder) to make it clear that a delay in complaint does not necessarily mean the allegation is false because a complainant may have good reasons to hesitate, but equally that the factfinder is not precluded from considering delay as being relevant to the truth of the allegation.

The magistrate’s reasons for giving a Crofts direction

54. The magistrate gave three reasons for finding that she “must” give a Crofts direction in the present case. They were: (a) “Section 165B and section 80B do not apply to this trial”; (b) “I find the delay in this matter substantial”; and (c) “I do not find that the facts of the case and the conduct of the trial do not suggest the need for the Crofts direction to restore the balance of fairness. I find the explanations for the various delays inadequate.”

55. As with Ground 1, I do not see a difficulty with the direction that the magistrate ultimately gave herself. All that the magistrate said was: “delay in complaint may be taken into account in evaluating the evidence of a complainant and in determining whether or not to believe her”. Although the magistrate stated that she must give a Crofts direction, that is fairly to be read as the magistrate’s view that the circumstances compelled her to give such a direction.

56. However, again as with Ground 1, the giving of a Crofts direction is really beside the point because the same erroneous reasoning process (set out at [33] above) was present in the context of the Crofts direction. It formed the supporting basis of the magistrate’s third reason for giving the Crofts direction. The error was not the fact that the Crofts direction was given per se. The error was the approach taken to assessing the delayed complaint of a child.

57. In other words, while I ultimately accept the appellant’s submission that the magistrate’s approach on this issue was inconsistent with the proper approach required at law, that is not to say that a delay in complaint could never be relevant, nor that the factfinder was precluded from weighing the significance of the delay. The error was that both under statute and now also at common law, the factfinder could not as a matter of legal principle attach relevance and significance to the delay on the basis of unfounded assumptions and stereotypes, which is what the magistrate here did.

Ground 2 – The magistrate erred in giving a direction as to significant forensic disadvantage

58. Ground 2 deals with a different but related aspect, namely, the consequences for the respondent of any delay and whether the magistrate erred in giving a direction as to forensic disadvantage. Given the material error established with regard to the other two grounds, this ground has been addressed for completeness.

59. At first instance, the respondent submitted that he had suffered a forensic disadvantage (not a significant forensic because of the delay in complaint). He expressly sought a direction at common law, stating that because this was not a trial by jury, none of the statutory prescriptions such as s 165B in the Evidence Act applied. The direction given by the magistrate

60. The magistrate acceded to the respondent’s requested direction, stating that s 165B of the Evidence Act did not apply to the proceeding (see [54] above). Later in the reasons, the magistrate then separately stated: Finally, I find there is a forensic disadvantage by the delay, as five years had passed since the date of the allegations to the date of closing submissions. This would put a burden on any defendant to recall with precision details about five years prior. Section 165B modified the common law concerning forensic disadvantage

61. The giving of such a direction is governed by s 165B of the Evidence Act which provides (emphasis added): 165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must tell the jury about the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there is a good reason for not doing so. (4) It is not necessary that a particular form of words be used in telling the jury about the nature of the significant forensic disadvantage suffered and the need to take the disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or tell the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) For this section: (a) delay includes delay between the alleged offence and its being reported; and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

62. The emphasised aspects of the section are those that the appellant says prevented the magistrate from giving the direction at common law.

63. Section 165B of the Evidence Act only applies to a proceeding in which there is a jury. That does not mean that a judge or magistrate ignores the section or its requirements in a judge alone trial, for reasons stated at the outset. Importantly for the complaint that is the subject of Ground 3, while the common law continues to apply, it may be that the statutory provision modifies the direction to be given even when the statute does not directly apply. Here, s 165B was the product of express legislative reform of the common law warning as to forensic disadvantage. The section replaced the common law position enunciated in Longman v R (1989) 168 CLR 79; HCA 60 at 91: TO v R [2017] NSWCCA 12; 265 A Crim R 191 at [173]. This is seen in the Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth) (EM), which included the following at 35: 221. The purpose of new section 165B is to replace the existing common law on Longman warnings so as to limit the circumstances in which they are given and clarify their scope. In Longman v The Queen (1989) 168 CLR 79, the majority of the High Court held that the jury in a sexual assault case should have been warned that, as the evidence of the complainant could not be tested adequately after the passage of time, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, was satisfied of its truth and accuracy. In addition to the warning about delay, the Court also found that the jury should have been warned about the risk of fantasy and the potential for delay, emotion, prejudice or suggestion to distort recollection.

64. This express legislative intention applies to the Evidence Act in the Territory because it was passed after s 165B was enacted by the Commonwealth Parliament, in almost identical terms as the uniform law. The statute introduced, among other things, a higher threshold of the forensic disadvantage being “significant” before such a direction is able to be given and further, clarified that delay of itself was not “significant”. Those features combined with the legislative history above confirm that the common law was modified by s 165B by “necessary intendment”: s 9 of the Evidence Act.

65. A second way in which the statute modified the common law by necessary intendment is in providing that delay of itself is not sufficient to be regarded as a “significant forensic disadvantage”: s 165B(6)(b) of the Evidence Act, emphasised above.

66. The relevant part of the EM is at [224]: … the mere passage of time is not to be regarded as a significant forensic disadvantage … Significant forensic disadvantage arises not because of delay itself, but because of the consequences of delay – such as the fact that any potential witnesses have died or are not able to be located, or the fact that potential evidence has been lost or is otherwise unavailable.

67. That is reflected in the authorities, as seen in Groundstroem v R [2013] NSWCCA 237 at [61]: … The significance of delay will plainly always be a matter of fact and degree and whether a warning should be given will depend upon whether a significant forensic disadvantage has been identified. If it has been identified then it is clear that the warning ought to be given, simply because it is or can be a very important factor to be taken into account when assessing the respective prosecution and defence cases and its importance may not be appreciated by the jury. The fundamental question is whether there has been a significant forensic disadvantage, which will depend on the nature of the complaint and the extent of the delay in the circumstances of the particular case. The extent of delay is not the test. Rather, it is the consequence of delay which is decisive. The focus on the length of delay has … arisen because of the notion of presumptive prejudice, especially as to reliability of recollection, which was earlier regarded as giving rise to the need for a warning.

68. Otherwise, authorities such as Brown v R [2022] NSWCCA 116 at [43] (and the authority there-cited) and Robbins (a pseudonym) v The Queen [2017] VSCA 288 at [186] summarise a number of material features. Of relevance to the direction given in this case are the following:

(a) Regard must be had to the facts in issue in the particular case. See also Gahani v The Queen [2022] NTCCA 13; 370 FLR 485 where it was stated at [161] that “care needs to be taken in extrapolating from one set of facts to another”.

(b) Significant forensic disadvantage must be demonstrated, rather than assumed by reference to the lapse of time (see also Binns v R [2017] NSWCCA 280 at [24]). In other words, the disadvantage must be, and be shown to be, real or actual and not speculative. A risk or danger of prejudice is not sufficient.

(c) The disadvantage must be of a forensic kind; that is, a disadvantage suffered by the accused in challenging, adducing or giving evidence, or in conducting the accused’s case.

(d) There is a causal requirement in that the significant forensic disadvantage identified must be caused by the delay.

The direction given was not permissible at common law

69. The magistrate was correct that s 165B did not apply because there was no jury. Again however, that did not mean that the magistrate was free to depart from the law applying to forensic disadvantage as set out in the Evidence Act. The section is capable of being understood as not precluding other warnings outside the operation of the statute (through s 165B(5)), so long as they are available consistently with the provision. Importantly though, as Basten JA observed in Lever (a pseudonym) v R [2018] NSWCCA 107 at [53]: … it is incoherent to say that s 165B does not affect the general law power to give such a warning: that is its sole purpose. …

70. It may have been that the magistrate was intending to do no more than make the point that over a period of years, people’s recollections vary and they forget things. However, that general proposition is a different thing from a specific forensic disadvantage that might require a direction or a warning. In speaking of forensic disadvantage, the magistrate did not apply the appropriate threshold, which meant that the magistrate did not grapple at all with whether any forensic disadvantage (to the extent that any actual disadvantage had been identified) was significant. In that regard, it is apparent that the incorrect legal principle was applied.

71. A further difficulty relates to what the magistrate understood to be the actual forensic disadvantage that required a separate direction. The respondent submitted that there was evidence of him suffering an actual forensic disadvantage essentially because of the fact that his memory had faded over time. The respondent argued that he was cross-examined at great length about things that happened many years earlier.

72. On the authorities set out above, whether that was sufficient to meet the requirements for a direction as to significant forensic disadvantage to be given in the circumstances of this case is a matter that perhaps will arise for consideration in due course. However, it is a moot point on this review appeal because the reason why the magistrate evidently considered there was a forensic disadvantage was solely because of the mere existence of a delay, akin to the old concept of presumptive prejudice. As the appellant submitted, the language of the learned magistrate’s decision shows that the direction was given purely because five years had passed between the allegation and closing submissions and that “would put a burden on any defendant to recall with precision details about five years prior”, rather than any disadvantage specific to the respondent. Such reasoning is proscribed by s 165B(6)(b) of the Evidence Act.

73. I therefore consider that Ground 3 also succeeds because of the misapplication of legal principle to the direction that was given as to forensic disadvantage. The exercise of the residual discretion to refuse relief is not justified here

74. The onus is on the prosecution to satisfy the court that the discretion should not be exercised in favour of the respondent: CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [66], cited in Harlovich at [5].

75. In this regard, I accept the appellant’s submissions that this was a significant error that was neither minor nor technical in nature. It impacted upon the critical finding as to the complainant’s credit. The error in the reasoning process was not contributed to by the prosecution. There was no delay in bringing the review appeal. There was no other reason that would make remittal unjust.

76. The respondent argued that the dismissal of the charges on remittal was inevitable, relying on Sims v Drewson [2008] ACTSC 91 at [39] and Waring v Laws [2020] ACTSC 33 at [22]. The submissions made by the respondent as to that outcome relied heavily on the delay in complaint and the submitted lack of the complainant’s credibility based on the complainant giving a different version of events initially. In light of the explanations given by the complainant for hesitating in making a complaint, I consider it is not inevitable that the factfinder would entertain a reasonable doubt about the complainant’s version of events. It remains open to a factfinder to accept the complainant’s version of events beyond reasonable doubt notwithstanding that she initially did not disclose the allegations and that the complainant’s evidence as to what she told her stepsister may have differed from the account given by the stepsister. The fact that the respondent gave evidence which contradicted that of the complainant and raised his good character in the hearing are also not matters that of themselves make an acquittal inevitable.

77. Accordingly, I am not persuaded there is a sufficient reason to withhold relief. Disposition and costs

78. The proper disposition of the matter is to allow the appeal, set aside the orders made and remit the matter for further consideration according to law. Given the conclusive credit findings made by the magistrate, if the matter were to be dealt with by the same magistrate again there will be an issue arising about apprehended bias. Accordingly, it is appropriate to order that the court be differently constituted on the remitter.

79. On an appeal pursuant to s 219B(1)(a) of the Magistrates Court Act, the court must order that the costs of and incidental to the appeal are payable by the appellant. Such an order will be made.

Orders

80. For the above reasons, the orders of the Court are as follows: (1) The appeal is allowed. (2) The orders of the Magistrates Court made in respect of proceedings no. [redacted] on 6 August 2024 are set aside. (3) The proceeding is remitted to the Magistrates Court, differently constituted, for further consideration according to law. (4) Pursuant to s 219F(8) of the Magistrates Court Act 1930 (ACT), the appellant is to pay all costs of and incidental to the appeal.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam

Associate: Date: