Court of Appeal (WA)|2003-05-20|Before: Malcolm CJ

Crisafio v The Queen [2003] WASCA 104 (20 May 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CRISAFIO -v- THE QUEEN [2003] WASCA 104

Criminal law and procedure - Sexual assault offences - Applicant convicted after trial - Many years after offences allegedly committed - Content of warning given by trial judge of the danger of conviction - Whether necessary to use the words "dangerous to convict" - Nature of directions required about delay in making complaint - Whether comment by trial judge that jury might consider why complainant would fabricate allegations involves error

Saffron (No 1) v The Queen (1988) 17 NSWLR 395

1 MALCOLM CJ: In my opinion, this application for leave to appeal against conviction should be refused. I have reached that conclusion for the reasons to be published by Murray J. In my opinion, it was unfortunate that the decision of this Court in Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 was not referred to in the recent decision of this Court in Allegretta v The Queen [2003] WASCA 17. In my opinion, the summary of the relevant law by Owen J in Christophers at [37] set out in eight propositions is an accurate statement of the law. In particular, I agree with Owen J that, although the word "dangerous" is used from time to time in the judgments in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, the adequacy of the warning is not necessarily dependent on the use of that particular expression or any similar expression. What must be made clear is that in such a case, the jury should not rely on the evidence of the complainant alone to convict unless they are persuaded beyond reasonable doubt of its truth and accuracy. In this context, "truth and accuracy" is equated with reliability.

2 I also wish to place on record my agreement with the five propositions stated by Murray J at the conclusion of his Honour's reasons.

3 MURRAY J: On 18 July 2002, the applicant was convicted in the District Court of 17 offences of indecent assault and seven offences of sexual penetration after a trial by jury which took but two days. There were only two witnesses; the male complainant and the applicant.

4 The indictment alleged that the offences were committed variously between 1 May and 31 August 1986, during October 1986 and during January 1987. The complainant was born on 7 September 1971. He gave evidence that the offences commenced when he was 14. In May 1986 he ran away from home after having a serious argument with his mother. The complainant had previously been given the applicant's name and telephone number. He understood the applicant to be a social worker. He made contact with the applicant and was taken to his home where he stayed for about three months. It was during this period that the first group of offences was allegedly committed. According to the evidence of the complainant, the offences involved a variety of indecent assaults, anal penetration by finger and penis, procuring the anal penetration of the applicant by the complainant and various forms of masturbation. The

offences were committed in a number of rooms in the applicant's home. There were no witnesses. Further such offences were allegedly committed during a visit to the applicant's home by the complainant in October 1986, in the applicant's car when he allegedly stopped in an industrial area on an occasion in January 1987, and later during the same month in the complainant's bedroom on the occasion of a visit to his house by the applicant.

5 The complainant was not shaken in his account under cross-examination. He maintained that he had a fairly good memory of the events in question. He agreed that, as the applicant had had an index finger amputated during June 1986, a particular incident of digital penetration must have occurred before that time. The complainant recalled that at some stage during the first series of offences the applicant for a time had his arm in a sling. It was put to the complainant that he had only stayed at the applicant's home for a few nights, but he maintained that he had been there for an extended period. Whilst he conceded that the applicant had travelled overseas during 1986, the complainant said that he believed that this was after he moved back home. The complainant was the sole prosecution witness.

6 The applicant gave evidence in his own defence. He said that he had been telephoned by the complainant in July or early August 1986, after the complainant had run away from home. The complainant told him that he had nowhere to stay and the applicant assisted the complainant with accommodation for a night or two only and that with the consent of the complainant's mother. He denied that any of the alleged offences took place. He said that he injured his finger on 2 May 1986 and as a result, while he received treatment, including ultimately an amputation, he was forced to wear a sling for seven or eight weeks and so effectively for the whole of May and June of 1986. He said that he had made arrangements to travel to the Philippines. He left Perth on 13 or 14 August 1986 and he stayed there for four to five weeks. On 30 August, while there, he was married. He had to return to Australia without his wife who did not come here until April 1987. During the whole of the period between the beginning of May and the end of August 1986 there was only the one occasion when the complainant slept for two nights at his home.

7 The incident in October 1986 did not occur. There was simply no such occasion when the applicant took the complainant by car to a restaurant for the purpose of the complainant seeking work in the way described by the complainant in relation to this alleged incident. Nor was there any such incident in the car in an industrial area in January 1987. As to the final occasion alleged by the complainant, the applicant gave evidence that he had been to the complainant's home to see his parents on three occasions. He had never, on any of those visits, been in the complainant's bedroom.

8 In short, as is often the case, the accounts given by the complainant and the applicant were in stark contrast. Both witnesses purported to remember what had occurred. Neither produced any contemporary documents to support the events to which they referred in evidence, although the applicant spoke of events which occurred on specific dates and the accuracy of his evidence about such matters as his trip to the Phillipines and his marriage appears to have been accepted by the prosecution. It is to be remembered that the complainant's evidence was being given about 16 years after the offences were allegedly committed.

9 Neither prosecuting nor defence counsel asked the complainant when he first made any complaint about the commission of the offences, if indeed he ever did so, or why it had taken so long before the matters came to trial. The complainant said that the offences ceased when, shortly after the last occasion when offences were committed, when the applicant again called uninvited to his home carrying what appeared to be a pornographic magazine, the complainant violently rebuffed the applicant. He said that he threatened the applicant in violent terms with physical harm. He was so angry that he rushed at the applicant who retreated rapidly, got into his car and drove off. He said that was the last time he saw the applicant "before this court procedure started".

10 The application for leave to appeal against conviction is made upon three grounds:

"1. The learned trial Judge erred in failing to give a sufficiently strong warning in terms of the case of Longman in the High Court, and more recently in terms of Crampton in the High Court that it was "dangerous to convict". Particulars:

(a) The learned trial Judge failed to use the words "dangerous to convict" when the circumstances of the case warranted such a direction given the length of time before complaint, and the animosity towards the defendant;

(b) the learned trial Judge did not even give the standard direction that the jury should scrutinise the evidence of the complainant very carefully before acting on it; and

(c) the learned trial Judge was requested to use the words "dangerous to convict" but refused when the circumstances of the case warranted those words to be used.

2. The learned trial Judge failed to direct the jury in terms of the High Court decision in Crofts.

3. The learned trial Judge in his direction to the jury posed the question, "Why would he (the complainant) make this up?" when that question sought to reverse the onus of proof as required by the prosecution. Particulars:

(a) the question posed by the learned trial Judge was against the weight of authority which prohibits such a question being left to the jury; and

(b) the authority of Palmers case in the High Court was relevant and applicable to the learned trial Judge's direction and his Honour failed to apply it appropriately or at all in the present case."

The danger of convicting without corroboration

11 As to ground 1, there was no question that the trial Judge should give to the jury a warning about the danger of convicting of all or any of the offences charged upon the entirely uncorroborated evidence of the complainant speaking in 2002 about events which had occurred 16 years earlier and which had commenced, according to the evidence of the complainant, when he was 14 years of age.

12 What a trial judge should tell the jury in those circumstances has been the subject of a number of cases. Any discussion of this topic commences with the decision of the High Court in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. In that case the High Court expressed the view that long delay in making the complaint and the lack of corroboration of the complainant's evidence were circumstances which required the trial judge to warn the jury of the danger of conviction. The purpose of the warning, as I understand the authority, is to highlight for the jury the need for special care before they are satisfied to act upon the complainant's evidence in a case where it is that evidence alone which is capable of establishing the offences charged in the indictment beyond reasonable doubt, because in such a case it is only if satisfied of the truth and accuracy of the complainant's evidence that the jury might find the case proved to the required standard. It is necessary to identify for the jury that in a case of the type under discussion their capacity to make that evaluation of the complainant's evidence is impaired because the defence may have long since lost the capacity to adequately test the evidence of the witness. The evidence is potentially unreliable and its unreliability may not be established by cross-examination or otherwise.

13 Given that the above correctly states the circumstances which will give rise to the need for the warning and the special instruction to be given to the jury, the question raised by ground 1 is the content of the warning. As to that, in Longman, at 91, Brennan, Dawson and Toohey JJ said:

"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 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 were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."

14 It is evident that that is a general description of the content of the warning. The essential elements seem to me to be that it should be pointed out to the jury that the defence have been incapacitated from adequately testing the complainant's evidence. Therefore, they should be told, they should scrutinise the evidence with great care before deciding that they may rely upon it because they are satisfied of its truth and accuracy. Of course, in a case of the kind under discussion, unless the jury were so satisfied there would be no evidence capable of establishing the guilt of the accused beyond reasonable doubt. In that event it would not merely be "dangerous to convict"; it would be wrong in law. That alone makes it clear that their Honours were not setting out to dictate any particular formula in which the warning should be given.

15 Deane J dissented. His Honour thought a general rule of practice of the kind discussed by the majority was unjustified because "it inevitably involves an element of disparagement of the complainant". However, his Honour recognised that in many cases juries were held to require direction "in a way that does not involve any general unqualified proposition about it being 'dangerous' or 'unsafe' to act on the uncorroborated evidence of the victim of an alleged sexual offence." His Honour reviewed the cases in which it had been held that the jury should be told that they "should hesitate long", should "scrutinise with very special care", should "carefully weigh", should "exercise considerable caution" before relying upon the uncorroborated complainant. His Honour expressed a preference for the view of Burt CJ, expressed in the unreported case of Miller v The Queen, unreported; SCt of WA; 23 December 1987, that, "the preferable warning is one couched in terms of the need to exercise considerable caution in acting on the word of the complainant alone", expanded to refer to the need, "to scrutinise the evidence with great care and to exercise considerable caution." (94).

16 The fifth member of the court, McHugh J, also dissented from the proposition that any general warning was required, but his Honour considered that a warning would be appropriate where justified in the particular circumstances of the case. Such a case would be one where to secure a fair trial required a "strong warning to the jury of the potential for error in the complainant's testimony." (108). His Honour referred to various matters which, in Longman, might have had an impact on the reliability of the complainant's testimony. His Honour concluded, at 109, by saying, "To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial Judge."

17 In my opinion, nothing in Longman seeks to lay down a formula for the required warning or supports the applicant's contention in this case that the words "dangerous to convict" must be used. Nor is there anything in the case which suggests that there may be cases where a strong warning is required, while in other cases the direction may be given in rather less imperative terms.

18 In my opinion, it is a sensible approach for the courts not to dictate the terms in which trial judges are to give this warning. Trial judges have the responsibility to preside over particular trials and to secure fair trials in individual cases. What is said should be dictated by the nature of the danger, in the particular circumstances of the case, that the jury may not appreciate the difficulty posed to the fact-finding processes by the existence of circumstances which will require the warning to be given. The judgments in Longman require that a trial judge should give to a jury in an appropriate case a warning, with the force of the judicial office, that the jury should not rely upon the evidence of a complainant in the circumstances of the case, to which the judge should refer, without subjecting that evidence to careful analysis and scrutiny so as to ensure that the jury are entirely satisfied about the reliability of the evidence.

19 In Crampton v The Queen (2000) 206 CLR 161 the majority, Gaudron, Gummow and Callinan JJ, referred with approval to a passage in the judgment of the majority in Longman at 90 - 91, which passage includes the observations about the content of the warning which I have quoted. In Crampton at 181 [45] their Honours said:

"An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakeable and firm voice must be given by appropriate directions."

20 Their Honours expressed the view that in the instant case that obligation should have been discharged by putting to the jury "almost all of the passage of the majority in Longman to which we have referred".

21 The reasons of Hayne J, at 211 -212 [140] - [142] are to the same effect. Kirby J, at 207 - 209, spoke of the inadequacy of the warning about delay in that case by observing first that what was required was a distinct warning rather than mere comment on various aspects of the evidence. As to the content of the warning, again his Honour returned to Longman. At [129] and [130] his Honour said that Longman:

"... obliges trial judges, in cases such as the present, not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial. The warning required by Longman must be, in the words of the joint reasons in this case, "unmistakeable and firm". It must be related to the evidence and derived from forensic experience."

22 Neither Gleeson CJ nor McHugh J referred in Crampton to the content of the Longman warning.

23 Finally, in this review of the decisions of the High Court, reference should be made to the case of Doggett v The Queen (2001) 208 CLR 343, a relatively unusual case of this type. The complaint was first made in 1998 of sexual offences committed against the complainant between 1979 and 1986. Again, as is usual in such cases, the only direct evidence against the accused was that of the complainant, but there was corroborative evidence, particularly of a taped telephone conversation between the accused and the complainant. The trial Judge did not warn the jury of the danger, given the delay, of convicting on the complainant's evidence.

24 It was held that despite the corroborative evidence available, such a warning was required, and so the case is not directly concerned with the content of the warning. The direction was, in fact, conceded to be deficient. The majority, Gaudron and Callinan JJ, and Kirby J, delivering separate reasons, therefore contented themselves with noting that the trial Judge merely directed the jury to scrutinise the complainant's evidence "very carefully", a direction which was held to be deficient in that, as Kirby J put it at 381 [142] it, "completely omitted reference to the considerations, special to the law's experience, upon which Longman places emphasis."

25 Gleeson CJ and McHugh J dissented, principally upon the basis that as the trial was fought there was no suggestion that the specific circumstances of the case required a Longman warning or that the trial Judge should give any further direction than that to which I have referred. The contest at trial was between the complainant's version that she was the victim of sexual abuse and the appellant's response that on the contrary, he had been the subject of unwanted sexual advances from the complainant which he did nothing to encourage and which he consistently rebuffed, a version which, as Gleeson CJ remarked at 347 [6] was presented in the context that, "The contents of the tape made it virtually impossible for the appellant to deny that sexual activity had occurred between him and the complainant." As the case was fought, the delay in complaining and any consequent forensic disadvantage which the appellant might have suffered was not put in issue.

26 Relative to the present case, however, it is worth noting the timely reminder by Gleeson CJ at 346 [2] that the way in which a trial is conducted:

"... has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties."

27 The decisions of this Court are to my mind precisely to the same effect. In Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106, Owen J, in a judgment with which Pidgeon and Ipp JJ agreed, at 117 [37] relied in part on the earlier unreported decisions of James v The Queen [2000] WASCA 100 and Gaulard v The Queen [2000] WASCA 218 and said:

"In my view a number of propositions can be extracted from the judgments in Longman and the discussion about Longman in other cases:

1. The "Longman direction" is a rule of practice that applies notwithstanding the enactment of s 36BE (now s 50) of the Evidence Act.

2. It is not a conventional corroboration warning.

3. It is borne out of the circumstances of the particular case and not from some general appreciation of the position of particular classes of witnesses or classes of offences.

4. It arises because of an overriding obligation of a trial Judge to ensure that there is a fair trial and to avoid a perceptible risk of miscarriage of justice occurring, again because of the circumstances of the particular case.

5. The warning is concerned both with the reliability and the veracity of the testimony given by the witness.

6. There is no prescribed or ritualistic formulation in which the warning is to be delivered: see James v The Queen [2000] WASCA 100 at par [23]. It must be tailored to the features of the case that have dictated that it be given. This is not surprising given that it arises from the circumstances of the particular case.

7. It is important that the trial Judge point out to the jury the particular features of the evidence that might have an impact on the reliability of the impugned testimony and the difficulties that this has, or may have, caused for the presentation of the defence.

8. Although the word "dangerous" is used from time to time in the judgments in Longman, the adequacy of the warning in any particular case is not necessarily sensitive to whether that phrase was uttered: Gaulard v The Queen [2000] WASCA 218 at par [14]. What must be brought home to the jury is that they need to be "persuaded of the truth and accuracy of the evidence before they may place reliance on it": see James at par [22]. In this context, "truth and accuracy" equates to reliability."

28 In the later case of Allegretta v The Queen [2003] WASCA 17, the judgment of this Court was given by Roberts-Smith J, with whom Malcolm CJ and McKechnie J agreed. The trial of sexual offences was held in 2002. It appears that the offence principally charged was that of having a sexual relationship with a child under the age of 16. It seems that the relationship was said to have commenced in 1995 and continued from 1996 until the end of 1999, a period during which the complainant alleged that she resided with the applicant in his home. The applicant gave evidence and called witnesses, including his wife. His case was that he did not sexually interfere with the complainant in any way at any time. He said he first met her in 1996 and she only came to live in his house in about July 1998. The first complaint of the matter occurred in March 2000, about five years after the complainant alleged that the sexual activity commenced.

29 The trial Judge did no more than urge the jury "to be very careful in your analysis of the evidence" because of the delay, the lack of direct corroborative evidence and because the complainant was, at the beginning, a relatively young child of perhaps 12 or 13 years of age.

30 Roberts-Smith J referred particularly to the fact that the applicant relied on R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241, a decision of the Court of Criminal Appeal of NSW. His Honour recounted at some length passages from the various judgments in that case, including some bearing upon the content of the warning. His Honour noted the decision of Sully J who analysed the relevant High Court authorities and set out in a number of propositions what, in short form, his Honour thought the law to be. As to those propositions and particularly in respect of their reference to the content of the warning, Roberts-Smith J, at [105], said that whether or not those propositions were all "necessarily strictly applicable in the way presented by his Honour" did not fall to be decided in Allegretta. The ratio of that decision, so far as it concerns what may be described as the Longman direction, is that such a direction was required in the instant case and what had been said by the trial Judge in that case "fell significantly short of such a warning".

31 The case of Christophers was not referred to by Roberts-Smith J in Allegretta and it does not appear to have been cited to the Court. The summary of the law by Owen J in that case is not on all fours with the summary adopted by Sully J in BWT.

32 The direction of the trial Judge in this case commenced by referring to the debate between prosecuting and defence counsel in their addresses to the jury which focused upon the fact that there was no corroboration for the evidence of the complainant. It was, "one person's word against another". His Honour told the jury that it was always important in such a case to "carefully look" at the evidence of the complainant, but in this case, because of the delay that had occurred, it was "very much more important" to take that course. His Honour referred to:

"the fact that the offences were alleged to have occurred against a person of this boy's age so long ago yet the complaints were not made until what I have called relatively recently. That means that it is difficult for parties, in this case the defendant, the accused, wishing to disprove, to get evidence of what he was doing and who was where and so on so long ago.

It imposes considerable difficulties for an accused person when allegations are made long after the event. I don't think there would be any problem with that being understood. The fact I have already referred to that there is no independent evidence corroborative of these allegations. Because of the delay you obviously don't, for instance, have medical evidence. If somebody said, 'Well, I have just been sodomised,' you could take them to a sexual assault centre at a hospital and have them examined. The police could examine them and so on.

The delay means a lack of medical evidence one way or another. Obviously, you don't have evidence like DNA evidence or fingerprint evidence which will survive 16 years. A lot of evidence will vanish because of the time that has gone by. I have mentioned what we call forensic evidence, DNA, fingerprint, sexual medical evidence, things of that sort. People disappear, people vanish, people lose memory and so some of the means of testing evidence becomes lost.

It becomes, for those reasons, difficult for the parties to put before you what they might have been able to put before you had the matters come to light so many years ago or to test the evidence of the other side by reference to that. It does become of critical importance that you very carefully look at all the evidence that has been given, assess it and are satisfied beyond a reasonable doubt of the truth of the allegations before you convict."

33 To my mind, to give the warning in those terms did not create a risk of a miscarriage of justice in this case. The warning was tailored to the circumstances of the case. The trial Judge gave examples of the sort of exculpatory evidence that might have originally been available, but would now be lost. His Honour spoke of the difficulty that confronted the applicant in adequately testing the evidence against him and yet, of course, there were specific events and dates which the applicant gave in evidence.

34 It was not a case where it was asserted that the concrete and direct evidence given by the complainant might be mistaken. The defence was that no such incident as any of those given by the complainant in evidence, ever occurred. In the way in which it was put in this case, that was necessarily an assertion that the complainant was not merely mistaken, had not merely misinterpreted what had occurred, but was lying from first to last and the applicant was the innocent victim of his fabrication. As to whether the offences or any of them were committed, the challenge was not to the reliability of the complainant's evidence, but to his truthfulness.

35 Nonetheless, as I say, the jury were warned that in making that assessment they were hampered by the delay in that whatever means might have existed to obtain evidence independent of the complainant to test his truthfulness had long since evaporated. It was appropriate in those circumstances to tell the jury that it was of "critical importance" that they "very carefully" look at the evidence and assess it. That direction was given as a warning by the trial Judge and was not merely a reference to argument put by counsel. In my opinion, the warning sufficiently conveyed to the jury the danger of convicting without subjecting the evidence of the complainant to close and careful scrutiny to satisfy themselves of its truth and accuracy.

36 In my opinion ground 1 is not made out. Indeed, it puts a proposition which is not supported by any decision of the High Court and is contrary to the decisions of this Court.

37 I turn then to the enigmatically expressed ground 2. The ground was not argued before us, both counsel being content to rely upon their written outlines. That submitted by the applicant does not make abundantly clear what is the nature of the direction derived from the decision of the High Court in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 which is sought. The case of Crofts was concerned with the provisions of the Crimes Act 1958 (Vic), s 61. The section effectively combines the terms of the Evidence Act 1906 (WA), s 50 and s 36BD. The latter section is that which is concerned to deal with the question of delay in making a complaint or absence of complaint.

38 I have commented about the evidence in that respect in this case. It gave no indication when the complaint was made and there was no questioning about the absence of complaint or delay in making a complaint. Had that been the case, by s 36BD, the trial Judge would have been required to warn the jury that absence of complaint or a delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and his Honour would be required to tell the jury that there may be good reasons why the victim of a sexual offence may hesitate in making, or may refrain from making, a complaint of that offence. It is accepted that such a direction should be tailored to the evidence in the case. However, in this case, as I say, there was no questioning and apparently no argument presented which suggested that the complainant's veracity might be doubted because of the absence of or delay in making a complaint. I will come shortly to what was said by counsel and the trial Judge.

39 As to the Victoria equivalent of s 36BD, the majority in Crofts, Toohey, Gaudron, Gummow and Kirby JJ, explained at 451 that:

"... the purpose of such legislation, properly understood, was to reform the balance of jury instruction, not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witness. It was simply to correct what had previously been standard practice by which, based on supposed "human experience" and the "experience of courts", judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to "sterilise" the complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the Judge should put such comments before the jury for their consideration. The overriding duty of the trial Judge remains to ensure that the accused secures a fair trial."

40 The decision in Crofts was considered by this Court in Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100. At 135, Malcolm CJ said that in this area the interests of justice were best served if each case was approached in the light of its own facts and appropriate directions formulated which took account of the arguments raised by those facts.

41 I have said that in this case there appears to have been no evidence given about the making of a complaint or delay in complaint, but it seems to have been assumed that the matter came to light, by whatever means, shortly before the trial or criminal proceedings commenced. The trial Judge did direct the jury in terms of the substance of s 36BD and he mentioned that prosecuting counsel had spoken of the evidence given by the complainant that at the applicant's house, during the period when the complainant was staying there, he did talk about making a complaint. The applicant's response was that no-one would believe him, a runaway, a child, and it would be the complainant's word against his.

42 It appears that no more was said in argument to the jury by defence counsel than that, for whatever reason the delay occurred, the case remained one of oath against oath without any corroboration for the complainant's evidence. It appears that it was not suggested that the complainant's credibility was subject to criticism having regard to the delay. One can well understand that approach in a case where the defence case was that the complainant's evidence was a complete fabrication and no evidence was advanced which might explain or offer any reason why the complainant should fabricate the allegations after many years, during which there had been no contact between the applicant and the complainant, and the applicant's evidence contained no reference to anything which occurred during the course of their relatively brief contact so many years ago which may have caused ill feeling towards the applicant on the part of the complainant.

43 This was not a case, in my opinion, where anything was raised which required a direction to redress the forensic balance and ensure the fairness of the trial process having regard to the instruction given in terms of s 36BD of the Evidence Act. In my view, ground 2 raises no matter capable of constituting a miscarriage of justice.

44 In the course of the discussion about and comment upon matters of evidence the trial Judge made the comment upon which ground 3 focuses attention. The remark was made as part of the prelude to his Honour's instructions and warning to the jury in terms of Longman. It was made in the course of discussion of the submissions of counsel in relation to the evidence, including reference to what the trial Judge obviously assumed, no doubt correctly, was a delay in making any complaint. In the course of recapitulating the arguments presented by counsel his Honour said:

"The Crown said, 'Why would he make it up?' The defence says, 'Well, how do we know? It's not for us to prove what is going on in his mind.' Both the defence and the Crown I think would agree that it's very important, and it obviously is very important, although the facts are for you and the law is for me; it is obviously - and I say this to you as the Judge in charge of the law on the matter - it is obviously very important that you carefully look at the evidence of the two key witnesses."

45 The trial Judge then went on to discuss the processes the jury might employ in assessing the evidence and, as I say, that discussion led in to the question of the lack of corroboration of the evidence of the complainant and the Longman warning_._

46 It should be said that neither the Crown nor the defence said in their submissions to the jury, the words quoted by his Honour, but it is clear that the trial Judge was not purporting to quote counsel precisely. His Honour's manner of speech often caused him to say that the Crown said something or the defence said another thing in reminding the jury of the submissions made by counsel. It should also be said that learned prosecuting counsel did not ask the applicant, in cross-examination, any question or questions to the effect of the words quoted by the trial Judge.

47 In supporting this ground the applicant's counsel relies upon the decision of the High Court in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, but that case had nothing to do with the comments on the evidence which would be permissible on the part of the trial Judge. In that case the complainant was a 14-year-old child. The offences being tried were sexual offences. The accused was asked in cross-examination whether he could suggest any reason why the complainant would invent the allegations against him. He answered that he was unable to suggest any reason. His defence was that the incidents of which the complainant testified did not occur. They were all said to have happened on the one day. The accused said that he was not even with the complainant on that day.

48 The High Court held that the convictions which resulted were tainted by the possibility of a miscarriage of justice in the trial process. The majority, Brennan CJ, Gaudron and Gummow JJ, at 9 [9] said:

"... a complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition ... that proof of a motive to lie weakens a complainant's credibility. The correct view is that absence of proof of motive is entirely neutral."

49 While I naturally appreciate the force of that view, it seems to me, with respect, that the real difficulty is that much of this type of questioning of an accused person which has occurred from time to time is simply objectionable because it seeks to elicit evidence from the accused about the complainant's motive to lie and the accused's knowledge of it in a form which is inadmissible. As Kirby J, the fourth member of the majority in Palmer, said at 41 [100] of that case, "No witness can give factual evidence about the motives of another person. Even evidence about a past dispute or suspected reason for a false accusation will not prove the motivation of the accuser."

50 However, as I say, Palmer is a case about whether or not it is permissible to question an accused person about his or her knowledge of whether the complainant has any motive to make false accusations against the accused. It is not a case about what comment may be made by a trial Judge or about what direction should be given in a case such as this in respect of the question whether the complainant may have any motive to falsely accuse the accused person of the offences alleged. As to that, in his dissenting opinion in Palmer, McHugh J said at 28 [69]:

"The jurors are almost certain to ask themselves the question, why would the complainant invent this terrible allegation? That being so, it is better to give them directions on the matter. At all events, it is a course to be preferred to that of ignoring the process of reasoning that is almost certain to dominate the jury's discussion of the issues when the case comes down to word against word."

51 However, as I say, Palmer was not a case which was concerned with the directions which should be given and it is not authority for the proposition which underlies ground 3.

52 The direction which might be given by the trial judge is an issue which has previously been considered by this Court. The matter seems first to have arisen in the case of Latham v The Queen [2000] WASCA 57, but that decision turns on its particular facts because there the directions or comments by the trial Judge to the jury in respect of the question whether the complainant may have had a motive to lie were made in conjunction with directions which raised questions about the adequacy of the directions of the trial judge generally in relation to the burden of proof, in a case of oath against oath.

53 The case raised the question whether a direction in the terms canvassed by the High Court in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515, should have been given. Such a direction warns the jury that even if they positively reject as a truthful and accurate account the evidence given by the accused, they must still ask the question whether, upon the evidence of the complainant, or so much of it as they accept, the jury are satisfied of guilt beyond reasonable doubt. In Latham, the combination of these two issues and the directions given in respect of them caused the Crown to concede that there was the possibility of a miscarriage of justice and hence, effectively, to concede the appeal.

54 The matter next arose, it would seem, in the case of Rodd v The Queen [2000] WASCA 329. In that case Ipp and Owen JJ put the question arising out of Palmer in terms which were rather stronger than those used by the High Court where, at [9] the majority spoke of the diminution of the standard of proof. In Rodd, the majority at [29] said that the mischief to which Palmer was directed "is the tendency of an inquiry into motive to threaten the integrity of the trial process by effectively reversing the onus of proof." In my respectful opinion, for a ground of appeal of this kind to succeed it would not be necessary to go so far. It must be sufficient if there has been a material detraction from the standard of proof beyond reasonable doubt.

55 In the same paragraph of Rodd their Honours went on to observe that there appeared to be no reason to restrict Palmer to issues of permissible cross-examination. For myself, with respect, I would entirely agree, but again, with respect, I am not in entire agreement with their Honours when they added the observation, "If it is not appropriate for the Crown to raise it as an evidentiary matter, then it is equally inappropriate for it to be raised in closing remarks." As has been seen, Palmer is not authority for either proposition expressed in that sentence, as it seems to me their Honours Ipp and Owen JJ themselves appreciated when, in the following paragraph of their judgment, they went on to refer, with apparent approval, to the decision of the Queensland Court of Appeal in Taylor v The Queen [2000] QCA 96, which in turn referred to the earlier unreported decision of that Court in R v Topalidis [1999] QCA 376.

56 In Taylor, the Court accepted what Thomas JA had said in Topalidis, that, "The question of the motive for a false complaint should not be regarded as territory which a Crown prosecutor may not enter." His Honour continued:

"What the Crown must not do, and what the court must ensure does not happen, is to permit the impression to be gained that the defence has any onus of showing that there was a particular reason for the complainant not telling the truth; or that at the end of the day the absence of any perceived reason for a false complaint strengthens the suggestion that the complainant must be telling the truth."

57 In Taylor, Pincus JA, with whom McPherson and Thomas JJA agreed, said:

"I do not believe that anything that was said by the High Court in Palmer [1998] HCA 2; (1998) 193 CLR 1, holds that it is not material for a jury to think about why a complainant, who may possibly be lying rather than mistaken, would lie. A jury would, reasonably enough, regard it as an impermissible intrusion into their function if they were instructed not to take that factor into consideration. I cannot accept that it is necessarily wrong for a Judge to tell them that they may do so."

58 In that case the comments of the trial Judge went far beyond those of the trial Judge in this case, which I have quoted. In Taylor the appeal was not allowed on this ground and, in my opinion, the ground is not made out in this case. The trial Judge did no more than identify the effect of the debate about whether the complainant had a motive to lie between defence and prosecuting counsel (in that order of address) before going on to observe, in a completely neutral manner, that it was obviously important to look carefully at the evidence of both the complainant and the applicant, the only witnesses in the case, "before you decide whether you are satisfied beyond reasonable doubt that the charges have been proved." In that way his Honour's remark was directly tied back into previously given directions about the onus and standard of proof, about which no complaint is made.

59 I am led by my consideration of the authorities to accept the following propositions, particularly in respect of a case of this kind where the evidence is entirely or substantially oath against oath, on the one hand the evidence of the complainant and, on the other hand, that of the applicant -

1. It is imperative that the jury not be given any impression that in such a case the guilt of the accused will be established by the jury's preference for the evidence of the complainant. The matters discussed in Liberato are of critical importance and the jury must be properly instructed that if they are left unable to reject the evidence of the accused, although they do not positively accept it, they could not find guilt established beyond reasonable doubt, and even if the evidence of the accused is rejected attention must still be given to the important question whether the evidence of the complainant, or so much of it as the jury do accept, establishes the commission of the offence beyond reasonable doubt.

2. In testing the evidence in such a case it is permissible to put to the complainant questions concerned to establish whether or not he or she has or may have a motive to lie, to falsely implicate the accused, but Palmer establishes that it will never be admissible for the Crown to cross-examine an accused person about whether or not he or she can suggest any motive for the complainant to lie. However, that case does not establish that the accused may not give admissible evidence upon that issue and if that is done it would be open to the prosecution to test that evidence by cross-examination in the ordinary way.

3. Where the issue is raised it is open to the trial judge to comment on the evidence in the ordinary way. Indeed, the obligation to ensure that the trial is fair will often require comment. The trial judge will retain his or her freedom to make comments which are appropriate to the circumstances of the particular case, for such assistance as they may provide to the jury in the fact finding process.

4. On the other hand, the circumstances of the case may suggest that it is preferable for the trial judge to make no comment upon this factual issue: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637 [41] - [42].

5. Whether or not any comment is made, the trial judge must take care to ensure that the jury is not left with any impression that the accused bears any onus to establish that the complainant has a motive to lie or that the lack of any perceived motive to lie of itself justifies the acceptance of the evidence of the complainant and the rejection of the evidence of the accused.

60 For those reasons I would refuse the application for leave to appeal.

61 PARKER J: The facts and issues on which this application for leave to appeal turns have been set out fully in the reasons published by Murray J.

62 For the reasons given by Murray I agree that the application for leave to appeal be refused.

63 For reasons which are clearly indicated in the reasons in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 it is important in the interests of justice in

a case such as the present that the jury be directed as to the dangers, that might not otherwise be apparent to them, of convicting on the evidence of the complainant alone where there has been a significant delay by the complainant in reporting the events said to constitute the offence.

64 The precise form which that direction should take, however, will be guided very much by the particular circumstances of each case and is not a matter likely to be dealt with to best effect by the use of some standard form of words in ever case.

65 While the purpose of the direction required is to warn the jury of the dangers of conviction which may not otherwise be apparent to them, it is not the effect of the decision in Longman, or the other relevant authorities that the words "danger of conviction" or "warning" must be used. What is critical is that the necessary effect be achieved by the directions given, it being desirable that the direction is adapted to the particular circumstances of the case.

66 As Murray J has indicated the approach taken by the trial Judge in this case was sufficient to ensure that the jury were conscious of the dangers of conviction which arose by virtue of the apparent delay of the complainant in reporting the events of this case.

Crisafio v The Queen [2003] WASCA 104

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Crisafio v The Queen [2003] WASCA 104 (20 May 2003)

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