51 In the later High Court cases of Crampton v The Queen (2001) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343 in both of which it was held by the High Court that a Longman direction should have been given, the delay between the time of the alleged offences and the time of the complaint being made was, in Crampton, nineteen years and, in Doggett, between twelve and nineteen years.
52 At the hearing of this appeal counsel for the appellant made a concession in the course of the oral argument that the present case was not a case of extraordinary delay and that it had not been necessary for the trial judge to give directions complying with all the requirements of Longman directions.
53 In my opinion, this concession by counsel for the appellant was properly made.
54 Although the "criterion for the provision of a warning as stated in Longman is not mathematically precise" (Doggett per Kirby J at 377 (127); BWT per Sully J at 274 (95)), the present case was not a case of extraordinary, or even lengthy, delay.
55 In the later High Court case of Dyers v The Queen (2002) 210 CLR 285, where there had been a delay of five years between the time of the alleged commission of the offence and the time of the first complaint, a majority of the High Court (Kirby J at 306-307 (54-58), McHugh J at 304 (47), agreeing with Kirby J and Callinan J at 329-330 (127-131) held that, at least in the particular circumstances of that case, it had not been necessary for the trial judge to give Longman directions. The other members of the Court (Gaudron and Hayne JJ) found it unnecessary to consider whether Longman directions should have been given (at 297 (21)).
56 In R v MDB [2005] NSWCCA 354, where the delay between the time of the commission of the alleged offence and the time of the complaint was about six months, Simpson J, with the approval of the other members of the Court, observed that the delay in that case was "nothing like the magnitude of that under consideration in Longman, Crampton, and Doggett" and that the instant case was not "a Longman case (at 41)".
57 In the present case the delay between the time of the alleged commission of the principal offence (the offence charged in count 1) and the first definite complaint was only about seven weeks. Furthermore, the occasion on which that offence had allegedly been committed was clearly identified and the complainant claimed to have a good recollection of it. The only respect in which the appellant might have been disadvantaged which was specifically referred to at the trial, was that the appellant might have lost the opportunity of obtaining forensic evidence disproving that there was any semen of the appellant on the floor of the activities room. However, that opportunity had been lost, not by the lapse of any lengthy period of time, but by the complainant's actions, on her account, of having, almost immediately after the offence was committed, wiped up the semen with a tea towel and then having thrown the tea towel into a garbage bin.
58 In the present case even the delay between the time of the alleged commission of the indecent assault offence and the first complaint of that offence was only about ten months.
59 I will now proceed to consider the particular submissions made by counsel for the appellant in support of the general ground of appeal.
60 1. The delay between the alleged commission of the offence and the first making of a complaint was longer in the case of the offence of indecent assault than it was in the case of the principal offence. There was a delay of about ten months from October 2001 to early August 2002, when the complainant complained to Mr Morrison that the appellant had grabbed her on the buttocks and Mr Morrison soon afterwards spoke to the appellant. There was a further delay to September 2002, before the complainant spoke to police.
61 Although the directions given by the trial judge could have been better expressed, I do not consider that the trial judge should be regarded as having limited his directions about the complainant's delay in complaining to the first count in the indictment.
62 The trial judge began his directions by saying that they related "particularly" to the "primary" count, that is the first count in the indictment, which on any view was by far the more serious of the two offences charged. The use by his Honour of the word "particularly" would have indicated to the jury that, although the directions about to be given would apply "particularly" to the first count, they also had application to the other count in the indictment.
63 Furthermore, in the first paragraph of the directions the trial judge expressly referred to "the matter said to have taken place in the shop during the month of October in the year before", which would have been understood by the jury as a reference to the alleged grabbing by the appellant of the complainant's buttocks at their place of work in October 2001, which was the subject of the second count.
64 As I have already indicated, no application was made by counsel at the trial for any further directions.
65 I would reject this submission by counsel for the appellant.
66 2. I have already earlier in this judgment referred to the evidence given by the complainant of other sexual conduct on the part of the appellant directed to the complainant.
67 The submission that the trial judge should have given a direction to the jury to avoid tendency reasoning based on this evidence of other sexual conduct was not pressed by counsel for the appellant in his oral submissions. Counsel said that, subject to one qualification, he "backed away" from this submission. Consequently, subject to the one qualification to which I will come shortly, it is unnecessary to deal with this submission. I will, however, make some brief comments.
68 I note that no application for such a direction was made by counsel for the appellant at the trial. Even apart from r 4 of the Criminal Appeal Rules, it is of some significance that it did not occur to counsel for the appellant at the trial that such a direction was necessary. The judgments of the majority of the members of the High Court in KRM v The Queen (2000) 206 CLR 221 support the proposition that there is no absolute rule that a trial judge should always warn a jury against propensity reasoning, in a case where propensity reasoning would not be permissible. In the present case the evidence of other sexual conduct was brief, in some cases the conduct of which evidence was given was merely verbal and in some cases no details of the conduct was given and there was no risk that the other conduct would be confused with, or substituted for, the conduct charged in the two counts in the indictment.
69 The one aspect of this submission which was pressed by counsel for the appellant was that the trial judge should have directed the jury that evidence about the offence charged in the first count, which was the later offence, could not be taken into account in determining whether the appellant was guilty of the offence charged in the second count, which was the earlier offence. However, I am not persuaded that in the circumstances of the present case the omission to give such a direction gave rise to a miscarriage of justice.
70 3. In the summing-up the trial judge told the jury:-
"…I must warn you that the delay in making a complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of the complainant but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted hesitates in making a complaint".
71 A little later in the summing-up the trial judge said:-
"I direct you that where there is a delay in making a complaint, the delay does not necessarily indicate that the allegation of the offence which was committed is false."
72 These directions were given pursuant to s 294 of the Criminal Procedure Act, which provides (so far as is relevant) that if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked tending to suggest that there was a delay in the alleged victim making a complaint, the trial judge must warn the jury that delay in making a complaint does not necessarily indicate that the allegation that the offence was committed is false and that there may be good reasons why a victim of a sexual assault may hesitate in making a complaint.
73 Section 294 of the Criminal Procedure Act is similar to s 61 of the Crimes Act 1958 (Vict), which was considered by the High Court in Crofts v The Queen.
74 In Crofts v The Queen the High Court held that in a case where there has been a delay in the alleged victim of a sexual offence making a complaint, then, not only should a direction in accordance with a statutory provision such as s 61 of the Crimes Act 1958 (Vict) be given but also, as a general rule, a direction should be given in accordance with the direction set out by Barwick CJ in Kilby v The Queen (1973) 129 CLR 460 at 465 "that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they (the jury) should take into account that she had made no complaint at the earliest reasonable opportunity".
75 In the present case the trial judge in his summing-up said:-
"The accused has argued that the delay by the complainant in making a complaint to a person to whom she might reasonably have been expected to complain such as her partner is inconsistent with the conduct of a truthful person who has indeed been sexually assaulted. The accused says that you should, therefore, regard the complainant's evidence that he sexually assaulted her as false."
76 In the part of the summing-up I have just quoted the trial judge was merely repeating arguments which had been put on behalf of the appellant and did not give the jury any directions. However, the trial judge proceeded to say "this is necessarily a matter which you should consider".
77 Although what the trial judge said fell short of being a model direction, I consider that the combination of the repetition of the argument which had been put on behalf of the appellant and the statement by the trial judge that the argument had to be considered by the jury amounted to a sufficient compliance with Crofts, particularly in the absence of any application for any further direction.
78 It might have been preferable for the trial judge to have reminded the jury in the summing-up that, when various grievances were disclosed by the complainant in the grievance form of 3 August 2002, no complaint was made about the alleged offence of sexual intercourse without consent on 17 July 2002. However, as might have been expected, counsel for the appellant at the trial had emphatically made the point to the jury in his closing address, saying about the grievance form (among other things):- "Not one word of the intercourse or the rape that occurred on 17 (July)". I do not consider that there is any risk that the jury would have overlooked the point in their deliberations.
79 I do not consider that the trial judge was obliged in the summing-up to refer to the various explanations given by the complainant for the delay in making a complaint and references by the trial judge in the summing-up to these explanations might not have assisted the appellant.
80 I would reject this submission made by counsel for the appellant.
81 4. In support of his submission that the trial judge should not in the summing-up have referred to the disadvantage which might have been suffered by the Crown, as distinct from the appellant, through the complainant, according to her evidence, having wiped up the appellant's semen with the tea towel and having thrown the tea towel into the Otto bin, counsel for the appellant cited R v Folli [2001] NSWCCA 531.
82 In Folli the offences charged had allegedly been committed at various times between 1980 and 1983 and no complaint had been made until 1997 or 1998.
83 In the trial judge's summing-up in Folli the trial judge referred to, and made comments about, the delay which had occurred between the times of the alleged offences and the making of a complaint. In his comments the trial judge said that the delay had made investigation of the alleged offences difficult, both for the Crown and the accused, and had made it difficult for witnesses on both sides to recall circumstances and details of events.
84 It was held by the Court of Criminal Appeal that Longman directions should have been given and that what the trial judge had said in his summing-up did not amount to proper Longman directions. Mason P, who delivered the leading judgment in the Court of Criminal Appeal, added at par 22 of his judgment:-
"There is a further difficulty with that passage (in the summing-up) in that it suggests that the Crown case was also entitled to be viewed sympathetically having regard to the problems of delay. The purpose and form of a Longman warning are directed at protecting the accused from being convicted otherwise than in circumstances of heightened jury scrutiny and caution".
85 Earlier in this judgment I noted that in his oral submissions counsel for the appellant conceded that the present case was not a case of extraordinary or lengthy delay and that it had not been necessary for the trial judge to give directions in accordance with Longman and I also recorded my opinion that these concessions had properly been made.
86 In cases where Longman directions are required, then in giving those directions a trial judge should not refer to any disadvantage which the Crown might have suffered through the delay in any complaint being made, because the purpose of giving Longman directions is to protect the accused and referring to disadvantages which the Crown might have suffered through the delay is likely to detract from the efficacy of the directions in protecting the accused.
87 However, in cases where Longman directions are not required, such reasoning is not applicable.
88 I accept that a trial judge should be cautious in suggesting to a jury that, if events had happened differently, the Crown might have had more evidence than the evidence it in fact presented at the trial and that a trial judge should direct the jury's attention to the evidence which has been presented at the trial and not encourage the jury to speculate about what other evidence might have been available, if events had happened differently.
89 However, I do not consider that there is any prohibition on a judge making a comment to a jury, in a case where Longman directions are not required, that, if some event or events had happened differently, evidence might have been available, which, if it had taken one form, might have favoured the Crown but which, if it had taken another form, might have favoured the accused.
90 In the present case, I consider it would have been quite apparent to the jury, even without their having been told by the trial judge, that, if an immediate investigation had been carried out, it would have revealed material evidence, either the presence of semen on the floor or on the tea towel, which would have strongly supported the complainant's evidence, or an absence of semen, which would have seriously weakened the complainant's evidence.
91 I would reject this submission by counsel for the appellant.
92 5. In support of this submission counsel for the appellant referred to BWT at 263 (75) per Sully J. However, in this part of his judgment in BWT Sully J was discussing Longman directions and what his Honour said is not applicable to a case where Longman directions are not required.
93 The present case was a case where there was only one witness (the complainant) asserting the commission of the crimes charged and the trial judge was required to give a direction that "the evidence of that witness must be scrutinised with great care" R v Murray (1987) 11 NSWLR 12 at 19 per Lee J.
94 In the summing-up the trial judge after directing, correctly, that there was no legal requirement that the evidence of the complainant needed to be corroborated or backed up by some other evidence, a direction which would have conveyed to the jury that the complainant's evidence was not corroborated or backed up by other evidence, directed the jury that "you must always scrutinise evidence such as hers with great care".
95 This was a sufficient Murray direction and I would reject this submission made by counsel for the appellant.
96 In my opinion the appeal against conviction should be dismissed.