Darren Peter Wade v Regina

2 One particular complaint made by the appellant is that the trial judge failed in his directions concerning delay to use language which conveyed "the weight and authority of the court". It is a complaint which appears to misunderstand what is meant by that phrase, a misunderstanding which has occurred in some other appeals. What it means is no more than that the various warnings which either the legislature or the appellate courts have required trial judges to give in relation to various issues to be determined by the jury must be seen by the jury to be given on the judge's own behalf, and not merely by way of reference to what counsel may have submitted to the jury. It does not require any particular form of words to demonstrate that the direction is being given by the judge on his or her authority. 3 It is clear that the judge added the weight of his judicial authority to the directions in issue in this appeal, and that the jury would so have understood them. 4 BARR J: The appellant, Darren Peter Wade, appeals against his conviction following a trial by jury in the District Court of the offence of having had sexual intercourse with the complainant, whom I shall call T, without her consent in circumstances of aggravation, namely that T was under the age of sixteen years. The offence was committed on 25 October 2000. T was twelve years old at the time and her brother, whom I shall call J, was thirteen years old. They lived with their mother. The appellant and the mother of the children had cohabited from time to time over the years. The appellant was the father of J but not of T, who was the child of a marriage between the mother and another man. After that marriage came to an end the mother and the appellant resumed their relations. The mother described them as "on and off". At the time of the events giving rise to the charge, the mother, the appellant and the two children were generally resident in the one house. The mother had her own room. So did T. So did J. The appellant sometimes slept in the mother's room but most of the time he occupied a bed in the lounge downstairs. 5 25 October 2000 was the night of T's school dance. She attended the dance and the appellant picked her up afterwards using T's mother's car. He drove her home. T went to her mother's room to say goodnight to her mother before retiring to bed in her own room. Those facts were uncontroversial at the trial. Also uncontroversial was the fact that T had had some difficulty bedwetting. 6 According to the evidence of T, she retired to bed and slept. At some later time she was woken by the appellant, who told her to take off her shorts. He said that her mother did not want her to wet her shorts. The appellant took off her shorts and as he did so he inserted his finger into her vagina. He left the finger there for some considerable time, probably an hour or so. T was afraid but did not call for help. The appellant told her that what had happened was a secret. He left her room. T told nobody what had happened. 7 It was not until March 2004 that T told her mother what had happened. She did so during an apparently difficult conversation in which she, T, had to explain why she had not been attending technical college classes. By that time, the mother and the appellant had ceased their relationship and there was some further delay before the complaint was brought to his attention. Altogether some three years and eleven months elapsed between the time of the events complained of and the time when notice was given to the appellant. 8 J gave evidence. He recalled the night of the school dance and T's being brought home by the appellant. He recalled T going upstairs to her room. He recalled the appellant going there as well shortly afterwards. When asked what happened then he gave this answer - A: I don't know, I just heard the door open and then heard him come back out some time later and I didn't think anything of it at the time. 9 T's mother gave evidence. She remembered the night of the school dance. She took T to the dance in her car, a red Holden Camira, and dropped her off. The mother returned home and remained there. She had something to drink during the evening and fell asleep. When she awoke she asked where the appellant was and J told her that he had gone to collect T. The appellant and T arrived home about ten minutes later. She saw both of them. T came to her room and told her how she had enjoyed the dance. She said that she was going off to bed and left her mother's room. The appellant came into the room and the mother thanked him for collecting T. He said that he was going downstairs to watch television. They said goodnight. 10 The appellant gave evidence. He admitted driving T home from the school dance in her mother's red Camira. He admitted being in the house after everyone had retired to bed. He denied having gone to T's room. He denied having assaulted her. 11 There is a single ground of appeal, namely - 1. There was a miscarriage of justice as a result of the learned trial Judge's failure to adequately warn the jury of the danger in convicting the applicant on the evidence of the complainant in that: (a) The trial Judge failed to use language of warning in delivering the portion of his summing up concerning the disadvantages suffered by an accused where there is delay in complaint; (b) The trial Judge failed to use language which showed that his words on this issue bore the weight and authority of the court. 12 As his Honour plainly told the jury, the real issue for them was whether the appellant had penetrated T with his finger. His Honour reminded the jury that the only witness to give evidence to that effect was T, and that the result was that before they could find the appellant guilty they had to be satisfied beyond reasonable doubt that T was an honest and accurate witness. His Honour summed up on delay in complaint, dealing first with its possible effect on the jury's assessment of the evidence of T herself. His Honour concluded with a direction, twice given, that these circumstances led to the need to scrutinise the complainant's evidence with great care. This unexceptionable direction was strong and accorded with R v Murray (1987) 11 NSWLR 12. 13 Then his Honour continued - Whether or not you were satisfied that there were good reasons for the complainant not making a complaint, that is to say not telling anyone about the matter until some three and a half years later, there still remains a further matter for you to consider and that is this, that the evidence is that this allegation was not brought to the attention of the accused until May last year and as I understand it that is common ground. Any delay in the prosecution of a charge will to some extent obviously compromise the ability of the person who faces that charge to properly meet it. The longer the delay obviously the more the ability to meet the charge will be compromised. Now the accused does not have an onus, he does not have to prove anything or disprove anything, but like any of us, if we are charged with a criminal offence he is entitled to mount a case to challenge that charge. In this case, obviously, his ability to do so will have been compromised at least to some extent by the long delay between when this event is said to have occurred and when he was first made aware of the allegation. Memories fade and you saw examples of that from a number of the witnesses who could not remember things because of the effluxion of time, that is probably the most significant way in which a person's ability to contradict a charge or challenge a charge will be compromised because of delay. There may be other reasons, his ability to recall exactly what happened on the night, where he was at various times and so on will undoubtedly have been compromised you might think. When you assess all the evidence in the case and his ability to challenge the allegations that have been made against him you must bear in mind that that ability will have been compromised to some extent because of the delay in bringing the charge to his attention.

14 It was submitted on behalf of the appellant that his Honour's directions fell so far short of the requirement in Longman v The Queen (1989) 168 CLR 79 that there was a miscarriage of justice. Counsel drew the Court's attention to passages from the judgments in Longman itself and from later cases in the High Court of Australia and in this Court which have to some extent refined and explained the need for directions in particular cases, both as to what ought to be said and as to what need or ought not to be said. Dealing with the effect upon an accused person of a delay of twenty-four years, Brennan, Dawson and Toohey JJ said this in Longman v The Queen at 91 - … there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer, at p 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of New South Wales, unreported, delivered 12 October 1989, pp 8,22-23,38-39,57-58) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing 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. 15 In Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 at 181, Gaudron, Gummow and Callinan JJ were considering a delay of nineteen years, and said this at [45] - The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. 16 Reference was made to the judgment in R v BWT (2002) 54 NSWLR 241 of Sully J, with whom Wood CJ at CL and Dowd J agreed, summarising the principles which had by then emerged. It was submitted that where there had been substantial delay there must be a warning, not simply a comment or a caution. The warning must be correctly focused and framed. It must identify particular problems which delay may have occasioned to the accused. It must not simply be a repetition of counsel's arguments but must have the unmistakable authority of the Court (at 273-4). Reference was made to the judgment of Sully J at 273 - …first, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly, that it would be, therefore, dangerous to convict on that evidence alone; thirdly, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and sixthly, that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction. 17 Counsel for the appellant fairly drew attention to other decisions of this Court calling for the adoption of a more flexible approach: R v GS [2003] NSWCCA 73; R v WSP [2005] NSWCCA 427. In R v DGB (2002) 133 A Crim R 227 Howie J, with whom Meagher JA and Simpson J agreed, said this at [30] - In the present case, I am unpersuaded that it was necessary, either as a matter of law or in order to ensure a fair trial to the appellant, that the trial judge use the phrase "dangerous to convict" in warning the jury as to the approach to be taken when assessing the complainant's evidence. No such warning was sought by an apparently competent defence counsel. 18 It was submitted that his Honour's words fell short of even the narrowest requirement of Longman v The Queen. They did not bear the weight and authority of the Court. Instead of using the clear language of warning and authority, his Honour put the matter in conversational language, using such words as "to some extent" and "you might think". The words failed to convey the seriousness of the matter. The jury would not have understood that they were being given a warning based on the combined experience of the Court of the dangers of convicting a person on the type of evidence available in this case. Reference was made to the need expressed in this Court by Adams J in R v Murre [2001] NSWCCA 286 for an emphatic warning. 19 As Simpson J observed in R v DRE [2006] NSWCCA 280 at [47], the principle dealt with in Longman v The Queen has, since that case, had a long and rather troubled history. As her Honour observed at [59] no definitive statement of the minimum requirements of a Longman direction have yet emerged. 20 Some things may be said with confidence. First, the charge to the jury should take into account all the relevant circumstances of the case before the jury. One circumstance will be the length of time which elapsed between the events and the accused's appreciation of the accusation. In cases of gross delay, the charge will need to be strong. It is not irrelevant that the strong warnings called for in Longman and Crampton resulted from delays approaching and exceeding twenty years. See also R v Sheehan [2006] NSWCCA 233, another case in this Court calling for a strong direction, which was concerned with delays varying between seventeen and twenty-two years. 21 On the other hand, the shorter the time between events and accusation, the less insistent must surely be the need for a strong warning. Spigelman CJ described DRE, a case involving a delay of up to three years for some counts but only a matter of months for others, as at best a borderline case for a Longman direction. However, I do not understand his Honour to have formed that conclusion from a reckoning of time alone - that a Longman direction was required was accepted by both sides in the appeal - and I would not wish to be understood as proposing such an approach. 22 There may be other circumstances, too. There may be evidence going directly to the accused's ability to remember events and otherwise account for his movements and activities. Such circumstances must be borne in mind as well. 23 Secondly, it may be said that no particular form of words is needed when directing the jury: R v Kesisyan [2003] NSWCCA 259. 24 Thirdly, it is not necessary, in fact undesirable, to use the words "dangerous to convict" or "unsafe to convict" when giving a Longman warning. These expressions bear similar meanings: Doggett v The Queen (2001) 208 CLR 343 per Glesson CJ at [10]; see also the judgment of Spigelman CJ in R v Robinson [2006] NSWCCA 192 and of Sully J in R v BWT. 25 What is necessary is that the trial judge should add the weight of judicial opinion that the relevant disadvantages do exist and why they exist. 26 The relevant circumstances of this case are as follows. The delay, as I have said, was just short of four years. It was common ground that only four persons were present in the house at the time of the alleged events, namely the complainant, the appellant, the complainant's mother and the complainant's brother. There was no possibility that any other person may have been present. This was not the sort of case where there might have been writing or diary notes or other communications, records of which might have been lost in the meantime. There was no possibility of the lost opportunity to seek the aid of other witnesses. There was no suggestion that the complainant's mother or brother ever entered the complainant's room. In a practical sense there were only two possibilities: the complainant was in her room and was visited by the appellant, as she said, and that the two remained alone and separated at all relevant times. 27 The appellant showed by his evidence that he remembered the events of the night. He remembered collecting the complainant and taking her home. He knew that she wet the bed. Her mother had told him. He conceded in cross-examination that he could have gone to the complainant's room if he had wished to do so. He denied having done so. 28 This was a very short trial. The evidence was complete well inside two sitting days. The issue was of the narrowest kind. Although it could not be said that if the appellant had learned of the complaint sooner he would not have been able better to defend himself the length of the delay and the circumstances of the case lead to no strong presumption of that kind. What his Honour told the jury must be judged accordingly. 29 The only potential adverse effect for the defence was the loss of memory of the detail of the events of the night. The jury must have understood that by what his Honour said. The charge was couched in the language of loss of memory of events and detail, for example - Obviously his ability to (mount a case to challenge the charge) will have been compromised at least to some extent by the long delay… … Memories fade… … That is probably the most significant way in which a person's ability to contradict … will be compromised because of delay. … There may be other reasons… you must bear in mind that that ability will have been compromised to some extent because of the delay. 30 The defence case, as put in cross-examination, was one of deliberate concoction. Nothing was put forward to suggest that the appellant might have been prejudiced through delay. In my opinion, looking overall at the passage of the summing-up complained of, what his Honour said was sufficient to bring home to the jury that this appellant, having to answer a charge after a long delay, was bound to be to some extent compromised by the fading of memory. I do not regard the use of the words "to some extent" as inhibiting the strength of the charge. It would be unrealistic to suggest that any significant delay would produce a total loss of memory, and clearly the appellant had no total loss of memory. In fact he appeared to have a good memory of the events of the evening. 31 Secondly, his Honour explained why the ability of the appellant to defend himself might have been compromised, namely by the fading of memory. Although his Honour suggested that there might be other reasons, the case itself suggested none. 32 Finally, his Honour's direction was clear, that the jury were bound to bear in mind that such failure of memory as existed would affect the ability of the accused to defend himself. 33 This direction was not of the strongest kind but was, I think, adequate to the circumstances of the case, following, as it did, a strong Murray direction. I think that it must have appeared so to defence counsel, who did not ask his Honour to give any further direction or stronger direction than that now complained of. Accordingly, leave is required to appeal on this ground. In my opinion the appellant has not made out a case for a grant of leave, which should be refused. 34 I would dismiss the appeal. 35 JOHNSON J: I agree with Barr J and with the additional observations of Hunt AJA.

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