DRE v REGINA

Count 4 92 Count 4 occurred, according to the complainant, a few months after the first occasion. Again, it was in the main bedroom and involved a pornographic video (depicting heterosexual activity). Again, the appellant made the complainant put his penis into the appellant's anus and move it in and out, having first applied gel. The complainant said that he heard his sister coming and told the appellant. The appellant told him to put his pants back on and AB then came to the doorway. The complainant was still squatting behind the appellant at this time and asked, "What are you doing?" The appellant said that the complainant was, "Cracking his back". AB asked what the video was and the appellant replied, "It's a porno". He then said to her, "Here, you crack my back, you're heaver". 93 The complainant's evidence of this event was supported by AB's evidence. AB said that she recalled an occasion when her mother was away from the house working and the appellant and the complainant were at home when the appellant suggested that she should have a long bath. AB said that she had a short bath and dressed herself and then walked down the hallway towards the main bedroom and opened the door. She said she saw the appellant naked on the bed on his hands and knees facing the television with his tracksuit pants around his ankles and the complainant on the bed as well kneeling behind the appellant. There was a pornographic movie playing on the television. She said the complainant was very close to the appellant but although he jumped away very quickly she saw his penis. She said he jumped off the bed onto the other side. AB asked what they were doing and the appellant said something to the effect that the complainant was trying to crack a disc in his back because it was out of place or sore. She said the appellant then moved over to the edge of the bed with his feet on the floor and asked AB to push his back because the complainant was not strong enough to do so. She said that she pushed on his back. She noticed that the complainant had put his shorts back on. AB said that she asked her brother what had happened and he said, "Nothing" and that she did not discuss the matter further with him. She did not tell her mother because she said she was frightened of the appellant. The complainant said that he did not remember whether he saw his sister again that night after he left the room. 94 In the Magistrate's Court the complainant had said that when his sister entered the bedroom the appellant had his pants fully on. In the trial the complainant's evidence was that just before his sister entered the room his pants were at his ankles. When he told him she was just behind the door he quickly pulled them up and told him to put his on. At the earlier trial, in December 2002, the complainant was asked about what the appellant was wearing before the appellant went into the bedroom. The complainant said that it was a white robe like a bathrobe. AB told police that she could not say whether the complainant's pants were up or not.

Count 5 95 The fifth count was an occasion again in the main bedroom, AB and CD being in the lounge room at the time, when the appellant came into the room, shut the door and lay on the bed next to the complainant, offering him money if the complainant would let him touch his penis. The complainant refused and moved off the bed. At some stage, the complainant said, the appellant reached over with his hands towards the complainant's penis and the complainant slapped his hand away.

Other matters 96 I do not propose to set out the detail of what I might call the contextual evidence dealing with other sexual conduct since this does not seem to me to be useful in the present context. Some other matters, however, should be mentioned, not so much because of their intrinsic importance but because they pointed to the potential prejudice suffered by the appellant because of delay. Thus, the complainant said that the appellant used gel as a lubricant, applying it both to the complainant's penis and the appellant's anus for the purpose of facilitating anal intercourse on a number of occasions. It was conceded that a plastic container of gel lubricant with a dispenser top was in the main bedroom, as described by the complainant. He maintained that the gel was green whereas it was undisputed that it was clear. This discrepancy was explained away by the Crown as simply a failure of recollection because of the passing of time. In respect of the kinds of pornographic videos available - and it is undisputed there was a large number of them in the home - videos doing more than matching in a general way the description of the videos allegedly shown by the appellant to the complaint could not be identified. 97 The Crown prosecutor in his address to the jury conceded that there were a number of inconsistencies in the complainant's evidence (arising chiefly out of his accounts to police, which I shall come to shortly) but submitted that the jury would bear in mind the complainant's age and make some allowance for him in this respect and, in particular, "Remember the words that he said in relation to his discrepancies, he said, 'I've been inconsistent because it happened a long time ago and I don't have the best of memory'".

The making of the complaint 98 The complainant told CD on 17 November 1999 that the appellant had been touching him but did not give any more detail than that. CD telephoned police but the first interview with police did not occur until 13 March 2000. Amongst other things, the complainant told the police officer that the appellant 'had a big bottle of gel stuff" and, when asked what it was for he answered, "I don't know. I think it was for him and mum". He was asked whether it was ever used at any time by the appellant with the complainant and the complainant denied it. The complainant said in evidence that he had deliberately withheld saying that the appellant had used the gel because, "I didn't think it was all that important, I wanted to move on with the more important stuff". The next interview with another police officer occurred on 29 May 2000. During that interview nothing was mentioned about the appellant having used gel. The complainant was again interviewed in September 2001 and then mentioned the use of gel. The complainant gave evidence that the appellant had inserted a vibrator into the complainant's anus and that this hurt a lot. However, he first made the allegation concerning the use of the vibrator in his statement to police of September 2001. He said that he just didn't think of it when he made his March 2000 statement. In his March 2000 statement also, he did not mention the incident when his sister had walked into the room when he was with the appellant, saying that for the first time in the interview of September 2001. 99 The accused was interviewed by police about the allegations made by the complainant on 22 November 2000. He exercised his right to silence and declined to be interviewed. The appellant gave evidence that his solicitor issued a subpoena to CD's employer in an attempt to obtain details of CD's employment prior to July 1997. However, a fire at the restaurant in February 1998 destroyed all their records.

Addresses to the jury 100 The Crown prosecutor did not refer to delay except as a mode of explaining the inconsistencies and failures of recollection of the complainant. Defence counsel referred on a number of occasions to the difficulties faced by the appellant because of the delay between the event and his being informed of the allegations. Counsel made a number of points - · If the appellant had been told about the allegations in any timely way real investigations could have been carried out and evidence brought to show whether he was indeed at home on any particular occasion and whether he had an opportunity at the particular time to act as alleged. · It may have been possible more precisely to prove when the television and video were brought into the bedroom and connected up. · Employment records may have shown whether CD was working on the occasion of the first three charges. · Evidence may have been available about the complainant's demeanour and conduct towards the appellant at about the time the offences were allegedly taking place. · The accused's opportunity to properly test the allegations has been lost and he can do little more than what he in fact did, namely simply to give a generalised denial. · The inconsistencies in the complainant's evidence can be explained away by failure of recollection over time, which would not have been available had the complaints been made contemporaneously with the events.

Counsels' submissions on directions 101 Mr O'Connor of counsel for the accused sought a direction in accordance with Longman v The Queen (1989) 168 CLR 79. The learned trial judge responded emphatically that the warning about the effects of delay required by Longman was confined to cases where the evidence of the complainant was uncorroborated. Mr O'Connor submitted that the warning as to the effect or potential effect of delay was not confined to cases where a complainant's evidence was uncorroborated, citing Doggett v the Queen 208 CLR 343. 102 It seems to me, with respect, that Doggett left this issue in a somewhat uncertain state. Gleeson CJ considered that, in the particular case, a Longman warning was not necessary (pointing out, however, that the phrase "Longman warning" has a somewhat uncertain meaning) but his Honour seems to have accepted that a warning bringing to the jury's attention the possible disadvantages to an accused person in preparation of his or her case was not excluded by the fact of corroboration. However, as it happened, his Honour thought that such a direction was not sought and its absence ought not to be permitted to be relied on appeal: Doggett 208 CLR at 349. Gaudron and Callinan JJ considered that the corroborative evidence led in the trial did not relieve the trial judge of the obligation to give a Longman direction citing uncertainties with the complainant's evidence in some important respect and stating as a significant independent ground "the denial by the effluxion of time to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred": Doggett 208 CLR at 355-356. McHugh J considered that Longman did not require a warning of the effects of delay, even long delay on the ability of the accused to defend the charge: Doggett 208 CLR at 365, 368. Kirby J considered that the mere fact of corroboration did not make a Longman warning as to the effects of delay on the ability to prepare a defence inappropriate: Doggett 208 CLR at 378-380. 103 In R v BWT (2002) 54 NSWLR 241 Sully J (with whom the other members of the Court agreed) summarised the position, if I may respectfully say so, in a useful set of propositions at [95], noting inter alia, that the mere fact that evidence of the complainant was corroborated did not mean that the jury should not be warned about the effects of delay but simply that the appropriate direction might need to take into account that evidence of corroboration. His Honour described the framing of the satisfactory direction as "a much more fraught and difficult experience in a case where the particular complainant's evidence does not stand entirely alone, but is supported, whether patchily or not, by some other evidence that is capable of being regarded reasonably as corroborative evidence" (54 NSWLR at 274). 104 The problem facing an accused where there has been significant delay is not reduced by the mere fact that one or more aspects of a complainant's evidence is corroborated. After all, it is as vital to the defence to be able to test adequately the evidence of the corroborating witness as the evidence of the complainant. May I respectfully say that, although I entirely agree with his Honour's summary of the position, I think for myself that compliance with the substance of the requirement will not, in the general run of cases, be made significantly more difficult where there is some support capable of being regarded as corroboration for a complainant's evidence. I think that juries are well able to grasp the essence of the warning once the difficulty has been pointed out to them. It is part of ordinary human experience that recollections fail over time and that this is true for actual participants as well as witnesses or potential witnesses. I do not believe that juries find it difficult to comprehend that it may well be difficult to test and refute claims that are made some time after the events in question are said to have occurred. But this is not self-evident and the extent of the forensic disadvantage is unlikely to be appreciated by the lay mind. 105 Of course, the circumstances of each case vary and directions ought to be framed to assist the jury in understanding the potential significance of delay in the particular case. This will require, in my respectful view, a trial judge to inform the jury of the two features of the Longman warning emphasised by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362 at 371 - "First, the jury is to be told why it is "dangerous to convict" namely, the delaymeant that the evidence of the complainant could not be "adequately tested". Secondly, the jury is to be told how they should go about their task because of the identified danger namely, "scrutinize the evidence with great care". 106 As Sully J said in BWT (2002) 54 NSWLR 341 at 273 - "(a) The direction must be cast in the form of a warning. Any form of expression which is thought to have the character of a comment , or even a caution will not comply sufficiently with what is required by law." (b)…[A] trial judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: 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 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 the dangers of conviction. (c)… The form of the warning must be such as bears unmistakably the imprint of the court's own authority. It must be made clear that the foundation of that authoritative warning of the court itself is the accumulated experience of the courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably that not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggest that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated…"

(May I respectfully point out, in parenthesis, that the problem of significant delay is by no means confined to sexual assault cases. Wherever an allegation is made significantly after the event there is a forensic disadvantage in testing or refuting it.) 107 Lest it be thought that AB's evidence as to seeing the appellant and the complainant in the bedroom on the occasion of the fourth count meant that the jury should not have been warned about the effects of delay, it is sufficient simply to point out that the Court of Criminal Appeal, dealing with the appellant's first conviction upheld a ground of appeal that the trial judge failed adequately to direct the jury in relation to the significance of the delay in compliant. The principal judgment of the Court was that of Sully J, with whom the other judges agreed. 108 The Crown prosecutor submitted that the availability of corroborative evidence did not of itself obviate the need for a proper Longman direction although he submitted that it was a matter for the trial judge to consider whether the nature of corroborative material was such as to obviate the forensic disadvantage of delay and hence the giving of a Longman direction. The prosecutor did not submit either that a Longman direction should be given or not given but contended that his Honour did not have to use the words "dangerous to convict".

The judge's directions 109 Before directing the jury, the learned trial judge sought submissions from counsel as to any particular directions that were sought. Mr O'Connor for the appellant asked for "a Longman direction…in relation to two aspects: one is the inconvenience occasioned to the accused in defence of the matter; and the other is in relation to fantasy." Mr O'Connor sought "a direction along the lines that it is dangerous to convict [having regard to the delay]…and, as a result of the delay he is unable to put forward his defence in the same way as he would have been [able] had he been aware of the allegation at a more proximate time." He repeated the substance of this submission somewhat later in the exchange with the trial judge and then said: "Your Honour, in addition to that, if I could perhaps refer to the checklist which Mr Justice Wood helpfully outlined in BWT" (a reference to R v BWT (2002) 54 NSWLR 241 at 250), which was then handed up. 110 Following a brief discussion of the roles of judge and jury, Freeman DCJ referred to his obligation to give "a full set of directions about the law" adding, "but that approach, that minimalist approach, if you like, requires that I give you a couple of warnings". The first of those warnings was that his Honour did not intend to refer to all the evidence and the jury should not think that this meant that they should not consider the whole of the evidence. The second warning was to remind the jury that it was their responsibility to decide the facts and not his Honour's. Having directed the jury that, where the Crown only has one witness upon which it can rely, "then, clearly, you have to look carefully at the evidence of that witness in order to make sure that it does satisfy you beyond reasonable doubt before you can bring in a verdict of 'guilty' against the accused" and that this "is particularly so where there is no support for the evidence of the sole witness", his Honour identified the evidence of AB as possible corroboration in relation to count 4. His Honour pointed out that there was no supporting evidence in respect of the events covered by counts 1, 2, 3, and 5. His Honour then said - "There is a further area upon which I need to give you directions in a case where there is only one witness and where there has been delay between occurrence of the alleged crime and its reporting. Now, in a perfect world, I suppose all crimes would - well, in a truly perfect world there would not be any crimes at all - but, accepting that there would always be some, ideally, a crime ought to be reported instantly; the police should be involved immediately and investigations ought to start straight away and, if that were the case, if all crimes were treated in that fashion, then the Crown would have the advantage of contemporaneous evidence; the accused would have the advantage of being able to test immediately all the circumstances of the allegation made against him - you would probably find that we would not have many trials at all because either crimes could be demonstrated to have occurred or false allegations could be easily refuted by virtue of the fact that the accused knew what it was that he was dealing with as soon as it had allegedly occurred. That did not happen in this case. There is a delay between early 1997 and a revelation to the mother in late 1999; the involvement of the police in March 2000; the ultimate revelation to the accused of the fact that these allegations had been made against him in late 2002 [ sic ], I think that was November, I am not sure, it might have been September, but it was late 2001; so that there is a delay between the alleged occurrence and him becoming aware of it and being given an opportunity to prepare himself to answer it, and that delay causes a number of what are called "forensic disadvantages." The first, I suppose, most obvious one is in the nature of a sort of alibi, an ability to demonstrate that he was not there at the time, or that the opportunity, because the mother was always there, had not arisen, and so on. The opportunity to call that evidence has been lost because, as we know, the records relating to - what is her name? O'CONNOR: [Place of employment]…your Honour. HIS HONOUR: No, I was struggling to find [CD's] name. Yes, I remembered [place of employment], but the records relating to [CD's] employment at [place of employment] had been destroyed in a fire occurring in February 1998, that is before these allegations surfaced at all after they are alleged to have occurred, but before they were made known by [the complainant] to anyone and, particularly, a long time before they were made known by the police to the accused. So he lost the opportunity to subpoena records or to have records produced on subpoena which may have demonstrated that she was not at work during the relevant period between the day he moved in and the day of the garage sale. I suppose that is the relevant period. We do not know what those records would display. I am concerned only to remind you that he has lost the opportunity to show you what those records would have held. As well, he has lost the opportunity to identify people who would be in a position to make some comment about the appearance, behaviour of the young boy…and, consequently, in not being able to recollect years after the event who was around the house and who would have been in a position to make observations, he has lost the opportunity of cross-examining or calling those persons to say what they could have said casting light upon the behaviour of the child as to whether it was consistent and so on. So he has been disadvantaged in those respects. They were listed in several different ways by Mr O'Connor. I do not think there is any need for me to take you through them in extenso , but I am required to remind you of these disadvantages which the accused has suffered because of the delay, these lost opportunities and tell you that it would be unsafe to convict in those circumstances where there has been delay, on the unsupported evidence of the complainant …unless you are satisfied, having examined that evidence in detail with particular care and having borne this warning in mind, unless you were satisfied beyond reasonable doubt that he was telling you the truth, these things did happen in the way in which he said they happened. So that is delay. [Emphasis added.] I do not think there is any more in the way of cautions that I am required to - oh, there is one other aspect of delay, I suppose, and that is that if there is a delay between the occurrence of an alleged assault and the reporting of that assault, then that delay is consistent with there not having been an assault to begin with. In other words, if nothing happens, there is nothing to complain about." 111 His Honour identified the following particular forensic disadvantages - (i) the inability to establish that the accused may not have been present at the time of any of the criminal acts;

(ii) the inability to obtain the records of CD's employment; and

(iii) a lost opportunity to identify people able to give evidence about their appearance, behaviour of the complainant that might cast light on whether his behaviour was consistent with the allegations. 112 The disadvantages referred to by defence counsel were, in substance, those listed above with the additional (and, to my mind, very significant) matter that the delay was used by Crown to explain away the inconsistencies in the complainant's evidence, which explanation the appellant, because of that delay, was unable to refute.

The ground of appeal 113 The sole ground of appeal, as I have mentioned, was that the trial judge failed adequately to direct the jury in relation to the significance of delay in complaint. The substance of the complaint was the contention that "the directions given in relation to the significance of delay in complaint do not comply with the essential elements of such a direction, in so far that the directions are not emphatic in tone or content and do not constitute proper or sufficient warnings as required at law". 114 In his written submissions, Mr Craigie SC for the appellant submitted that the learned sentencing judge's opening remarks, of which the reference to the "perfect world" was an example, diluted the requirement of an emphatic warning and, in effect, might have led the jury into thinking that the significance of delay was trivial or less important than it was. Mr Craigie also pointed to the immediately following passage in which his Honour referred to the likelihood that in this "perfect world" the prompt complaints would mean that there "would not be many trials" and added, as an example of what was said to be a dilution of the proper force of the warning, the reference to "what are called 'forensic disadvantages'. In summary, it was contended that at no stage did his Honour specifically warn the jury of the real disadvantages, as distinct from reminding them that the appellant lost the opportunity to identify people who would be in a position to give relevant evidence and the other disadvantages that defence counsel had identified. Mr Craigie submitted that the particular disadvantages should have been specifically referred to by his Honour. 115 These submissions would have been more helpful if Mr Craigie had specified what directions he contended should have been given. In oral argument counsel relied in substance on his written submissions, adding - "When one looks at the whole of the summing up, and that would appear to be the fairest test of its adequacy, both in its content and its tenor, the summing up simply fails to constitute a necessary judicial warning with the imperative nature that such a warning should have in order to properly equip a jury to approach the whole issue of delay in a matter such as this. My learned friend appears, if I understand his submissions correctly, to concede that indeed the summing-up could have been more vigorous in its character." SPIGELMAN CJ: He could have used the words 'dangerous to convict' and he could have used the word 'warning' in the relevant spot where it appears from Longman .' ADAMS J: And it could have been pointed out that it was, as Longman expressly says and, indeed, as the Chief Justice said in Johnston, that the point of all this is the difficulty of testing adequately the evidence of the complainant. That's the nub, that's where everything comes into focus and that focus was not provided here. Whether in substance it was is another matter, but it wasn't given in terms. CRAIGIE: That's certainly, in substance, our complaint. Moreover, its only a case of what was lacking but in some instances the structure of his Honour's fairly brief directions was such as to diminish the force of those cautions as he called them, or comments, that he did give to the jury. ADAMS J: Mr Craigie, those points are all made in your submissions and you've pointed us to the summing up. In the end, its really a matter for us to give a fair reading of the summing up. CRAIGIE: I believe so… 116 Mr Craigie also submitted that, to the extent that Rule 4 of the Criminal Appeal Rules applied, the shortcomings in the summing up were so fundamental that leave should be granted.

Discussion 117 It seems to me, with respect, that there were four significant shortcomings in the directions to the jury. The first is that the learned trial judge did not explain to the jury that these warnings arise because of the experience of the courts as to the difficulties faced by the accused person in defending a case brought in such circumstances. Secondly, his Honour suggested that the problems in this case were typical of criminal trials and thus, implicitly, that this trial was no different from the common run of case. I am not sure that I would adopt the submission of Mr Craigie SC that the effect of these directions was to trivialise the warning but I think the submission, in substance, that these directions amounted to a substantial understatement of the significance of delay in the circumstances of this case is correct. Third, there was no reference to the difficulties faced in testing by cross-examination and in assessing the credibility of a witness able to resort to failure of memory in respect of inconsistencies or lapses in memory - a point specifically made by the Crown prosecutor in his address to the jury in relation to the complainant and applying also to the evidence of AB as to what happened in the bedroom. This was a most important consideration in this case, given the significant inconsistencies in aspects of the complainant's evidence and that of his sister. Indeed, at the end of the day, this was the fundamental evidentiary basis for the defence argument that the jury would not accept the evidence of the complainant beyond reasonable doubt. Leaving aside the difficulty in testing their evidence, the temptation to use delay to explain away inconsistencies, which is of course one possibly available explanation, rather than focussing on the crucial question whether the evidence is sufficiently convincing, is a very strong one. 118 Where the accused has not been able to obtain reliable contemporaneous evidence and has, essentially, only his or her unsupported and general denial to rely on, the demonstration of significant inconsistencies in the complainant's account assumes great significance. As I have said, delay is often a possible and even reasonable explanation for inconsistencies. But giving the benefit of the doubt to the complainant's evidence is, in effect, to reverse the onus of proof. This is a real and substantial risk and requires the jury to understand that the focus must remain on whether the evidence of the complainant can be believed beyond reasonable doubt. Of course, if delay is only a possible or even a probable explanation for the demonstrated inconsistencies and it is still reasonably possible that the true explanation is that the evidence is wrong, the Crown will have failed to prove the charge. To my mind, the importance of this reasoning, which engages the onus and standard of proof in the starkest way, requires more than mere reference to counsel's address. This was a crucial part of the defence case and the jury's task. Clear and understandable directions as to how they should approach it in light of the onus and standard of proof and the evidence of delay were, to my mind, essential and should have been explicitly explained by the trial judge. Merely to refer in general terms to the problems caused to the defence by delay is insufficient: the significance or possible significance of the delay in the particular circumstances of the case and in the context of the evidence at trial must be explained. 119 This is hardly new doctrine. A number of the particularly relevant authorities are helpfully collected in the judgment of Spigelman CJ in R v Johnston (1998) 45 NSWLR 362. It is merely an aspect of the fundamental duty of a trial judge to relate the directions of law to the issues in the case. 120 Fourthly, the warning was specifically limited to counts 1, 2, 3, and 5. This is the substance of the qualification which I have italicised in the directions set out above. I would agree that its significance may have been missed by the jury but I do not see how this Court can proceed otherwise than by assuming that the jury paid attention to and obeyed the judge's directions. Once the complainant was accepted in relation to count 4, the effect of warning in respect of the other counts must have been significantly weakened. 121 I agree that counsel did not give the learned trial judge the assistance which was necessary - and the duty lies on counsel both for the Crown and the defence - and that these particular matters were not the subject of submissions. However, in my view, the significance of delay was clearly raised as an issue to be addressed in directions. It is also true that, except for the lack of adequate emphasis point and the adopted reference to the passage in R v Johnson of Spigelman CJ at 371, counsel for the appellant in this Court did not articulate the omissions which I have identified. 122 Having regard to the problematical aspects of the complainant's testimony to which I have referred (and which also troubled this Court in the earlier appeal) and the asserted failure of recollection about a very significant matter in the evidence of AB, it seems to me that the directions failed both in form and substance to give the warning that was required by the circumstances of this case, accepting as I do that no particular form of words is required. In the context, furthermore, I would not accept that the phrase "unsafe to convict" carries with sufficient emphasis the warning required to be given and which is conveyed by the phrase "dangerous to convict". 123 Of course, the directions must be taken as a whole in light of the particular circumstances of the case and the addresses of counsel. In summary, I have concluded, with respect, that the learned trial judge did not adequately inform the jury either why it was dangerous to convict or that they must scrutinise the evidence with great care: see Johnston 45 NSWLR at 371. 124 Following the summing-up, the learned trial judge asked counsel whether any re-directions were sought. The following exchange appeared: "HIS HONOUR: Yes, Mr O'Connor.

O'CONNOR: Your Honour, there's nothing beyond the applications I indicated to your Honour on Friday in relation to the legal directions.

HIS HONOUR: That sounds like a very guarded response, that's it. Nothing else?" 125 (I rather think that the punctuation in the concluding passage is a little misleading. I think it should read: "That sounds like a very guarded response. That's it? Nothing else?" The difference is not significant, however.) In my view, the response of Mr O'Connor to his Honour's query was both appropriate and sufficient. It seems to me that his Honour took a different view to that for which Mr O'Connor had contended and that Mr O'Connor was submitting that he understood that this had been done and did not wish to add further argument. The reference by his Honour to anything else, to my mind, was not a reference to the Longman question but reference to any other aspect of the summing-up. That being so, Rule 4 of the Criminal Appeal Rules does not apply. I note, in this respect, that the Crown prosecutor in this Court did not suggest to the contrary.

Conclusion 126 I am of the view that the ground of appeal has been made out and the conviction should be quashed. 127 It was submitted on behalf of the appellant that, if the conviction were quashed, this Court should not order a new trial. If there had been no evidence capable of corroborating the complainant's evidence, I would not have favoured an order for a new trial. However, whilst a verdict of acquittal would be entirely open to a jury in the particular circumstances of this case, I am not persuaded that such a verdict is so likely as to justify the entry of an acquittal by this Court. Whether there is to be a new trial should be a matter for the Director of Public Prosecutions to determine.

Proposed orders 128 I propose the following orders -

(1) the appeal against conviction be upheld; (2) the convictions and sentences be quashed; and (3) there be an order for a new trial. **********

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