Festa v The Queen

Court of Criminal Appeal (NSW)|2002-04-03|Before: Hodgson JA, Greg James J, Kirby J, James J

The application of the proviso depends on the error not being one which is so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and on the conviction being 'inevitable', so that the appellant can be said not to have lost a chance which was fairly open to him to have been acquitted. See Glennon v. R. (1994) 119 ALR 706 at 710-712. This error is not fundamental in the sense just described. Attention must therefore be directed to the strength of the Crown case. The Crown submitted that it was high. The victim's story was inherently credible and coherent. Her failure to complain until she complained to her husband was understandable. The fact that she complained to him when she did was understandable. There was some evidence confirming the complainant's evidence, though not strongly. Though the defence called witnesses, their performance may have strengthened the Crown case partly because they were seen to be trying too hard and partly because they contradicted each other.

The appellant's submission that the Crown case was weak is baseless. But once it is assumed, as it must be, that the prejudicial effect of delay on the forensic position of the appellant was not obvious to the jury, unless it had been explained to them, the warning which was not given could have caused them to experience a reasonable doubt.

Hence the proviso cannot be applied. 110 A new trial was ordered. 111 I share the disquiet expressed by the members of the bench in BWT (supra) as to what should be said by way of an appropriate direction. In BWT (supra), Sully, J., with whom Wood, CJ. at CL. and Dowd, J. agreed said:- I have come, based upon the foregoing survey of curial authority, to the following conclusions:- [1] The proposition advanced by Gleeson CJ in Doggett v The Queen to the effect that the decision in Longman "is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be 'dangerous' of 'unsafe' to convict on the uncorroborated evidence of the complainant", is, as I respectfully think, plainly correct on a fair reading of what was actually said in the joint judgment in Longman itself. Notwithstanding that some support is given to Gleeson CJ's proposition by the relevant parts of the judgment of McHugh J in Doggett, I think that the conclusion is unavoidable that, as matters currently stand, all five of the remaining Justices of the High Court do not accept the Chief Justice's proposition. [2] It seems to be a fair inference from the various statements of principle of those five Justices of the Court that they would all accept, at least to some extent, a measure of discretionary flexibility on the part of a trial Judge who is required to give a Longman direction. It seems to me, however, that the majority Justices regard that margin of discretion as being a very narrow one. It seems to be their Honours' position that such a residual discretion is available for the purpose of strengthening what I might describe as the basic Longman direction; but that it is not available so as to water the basic direction down in any way. [3] It seems to me to be a reasonable inference from what their Honours have said that all the current Justices of the High Court, excepting the Chief Justice and McHugh J, take the basic position that in any criminal trial a feature of which is substantial delay in complaint of alleged sexual offences then charged against the particular accused, a Longman direction must be given. Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Doggett : (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 of a caution will not sufficiently comply with what is required by law. It seems to me to follow that any trial Judge who is framing a Longman direction ought to ensure that the direction is framed, in terms, as a warning . (b) That which is to be warned against is, to return to the majority judgment in Longman itself: "that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], 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, was satisfied of its truth and accuracy". The approach of the majority Justices in both Crampton and Doggett seems to me to entail that 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 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. (c) Not only must the substance of the warning be carefully and correctly focused, but the form of the warning, also, must be carefully and correctly framed. 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 than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated. A ready example of that will be found in the trial directions in Crampton . (d) In framing the substance of a Longman direction, a Judge must keep in mind not only the guidance given by the joint judgment in Longman itself, but also the additional considerations to which reference was made in their respective judgments by Deane J and McHugh J. (e) The decision in Doggett will mean, in practical terms, that the framing of a satisfactory Longman direction will be 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. Those additional difficulties are pointed out clearly and compellingly, if I may respectfully say so, in the following portion of the judgment of Gleeson CJ in Doggett , (see paragraph [9]): If, by a Longman warning is meant a warning that it was unsafe to convict on the uncorroborated evidence of the complainant, in the circumstances of this case such a warning, to be of practical assistance to the jury, would have required the trial judge to go into the matter of corroboration, to direct the attention of the jury to the evidence capable of being regarded as corroborative and to explain its possible significance. Why would defence counsel invite that? As far as he was concerned, the less said about corroboration the better. The majority Justices, that is to say Gaudron and Callinan JJ in their Honours' joint judgment and Kirby J in his Honour's separate judgment, do not go so far as to say that a Longman direction will always be required notwithstanding that there is evidence capable of corroborating, whether in whole or in part, the particular complainant's own evidence. What their Honours do make plain, is that the availability of such corroborative evidence cannot, of itself , obviate the need for a proper Longman direction. What their Honours appear to be saying is that the availability of such corroborative evidence will require the particular trial Judge to make a painstaking analysis of the way in which, of the extent to which, and of the particular points in connection with which, the corroborative material is effective; and then to decide whether the resulting state of affairs leaves open, notwithstanding the corroboration, such forensic disadvantage as to call for the giving of a Longman direction. (f) The initial trigger for any Longman direction is the passage of time between the alleged offence and first complaint. No doubt, and as Kirby J observes in Doggett , "(t)he criterion for the provision of a warning as stated in Longman is not mathematically precise" . His Honour goes on to say that "in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary" . (emphasis added) His Honour refers in a footnote to Crofts , where the delay between the first alleged offence and complaint was about six years, although there had been offences allegedly continuing until about six months before complaint; and Jones v The Queen (1997) 191 CLR 439, where there was a delay in the order of four years between offence and complaint. On these particular points, Gaudron, Gummow, Hayne and Callinan JJ in the judgments variously delivered by their Honours in Crampton and in Doggett , are not, I think, as precise as is Kirby J. I think, nevertheless, that the prudent inference to be drawn from what their Honours have variously said in Crampton and in Doggett is that they would support, at least generally, the propositions advanced by Kirby J. It is, I think, clear enough that a delay in the order of 20 years would require, imperatively in the view of the current majority opinion in the High Court, a Longman direction, and a strong one at that. What is not clear is whether there is any, and if so what, time lapse that would be generally regarded by current majority opinion in the High Court as not calling for the giving of a Longman direction. While that state of affairs continues, it seems to me that the only prudent approach of a trial Judge is one that regards any delay between offence and complaint as sufficient to raise for consideration the need for a Longman direction. That consideration should concentrate upon two related factors, namely, the actual lapse of time involved in the particular case; and the actual risk of relevant forensic disadvantage in the particular case. It seems to me that, as matters stand, a trial Judge would be well advised to give a Longman direction unless it is possible to conclude reasonably: first , that the particular time lapse is so small that any reasonable mind would regard it as, in context, trifling; and secondly , that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt 1980) 146 CLR 40 at 47), "far-fetched or fanciful". [4] It is a nice question of academic jurisprudence whether the substantive effect of the judgments in Crampton and in Doggett overrules the propositions articulated by Spigelman CJ in Johnston . The two High Court decisions do not themselves shed any direct light on that question. It is, I think, sufficient to say that, as I respectfully think, Spigelman CJ's propositions in Johnston should be approached and applied with some caution, in as much as those propositions seem to me, with respect, to entail a degree, (and, I might add, in my opinion a wholly justifiable and desirable degree), of judicial flexibility which does not sit comfortably with what seems to have become the settled majority view in the High Court. In endeavouring to apply the foregoing discussion, and the principles which are in my opinion correctly to be derived from it, to the directions actually given in the present case by the learned trial Judge, I have kept in mind the practical realities that confronted his Honour on the relevant occasion. His Honour was sitting in a country circuit town, with all that is thereby entailed in terms of limited resources. His Honour was trying a matter, the basic allegations in which were clear and straightforward. His Honour got virtually no assistance from the Bar table in connection with the need for any, and if so what, Longman direction. His Honour was burdened, of course, with the advice given over many years, and both by the High Court and by variously constituted Benches of this Court, to the effect that trial Judges should not be unduly technical or complicated in charging a jury, but should prefer always to express themselves simply and clearly. The directions given in fact by his Honour to the jury seem to me, if I may respectfully say so, to have been both practical and sensible, having regard to the way in which the comparatively short trial had been conducted both by the Crown and by the defence; and to the way in which the issues for trial had been crystallised as between the Crown and the defence. I find it, if I may presume to say so frankly, unpalatable to have to say in such a context that the directions given to the jury do not meet the requirements of the current law in connection with the so-called Longman direction. But, unpalatable or not, I have come to the conclusion that there is no way in which the brief and temperate directions given by his Honour to the particular jury can be accommodated to the requirements established, not only by Longman itself, but by the subsequent decisions in Crampton and in Doggett . 112 Although he noted:- … it cannot be denied that the jury was given a clear warning of the need to scrutinise with care the evidence of the complainant before accepting it as, not only honest, but also reliable. The jury must be presumed both to have understood, and to have given effect to those directions. 113 His Honour reached the following view on the facts of that case, a view which might well be applied to this:- In those circumstances, I do not see any present justification for this Court's now setting aside the verdict of the jury upon the basis that this Court is convinced that the jury, acting reasonably, ought to have had a reasonable doubt about the guilt as charged of the appellant. 114 But, his Honour concluded, having regard to the law as it stands requiring a Longman direction, the appeal must be allowed and a new trial ordered. 115 His Honour then made, in an addendum to his judgment, a number of observations with which I agree:- In CSR Limited & Anor v Bouwhuis (unreported; Court of Appeal; 23 August 1991), Samuels JA observed: The role of the judicial dissenter, after the initial protest has been made, is necessarily to maintain a silent vigil in the wings of jurisprudential history. It may remain solitary, or it may culminate in a summons to centre stage. But it does not involve denigrating the current script or booing the players.

I do not intend in what follows either to denigrate the current script or to boo the players. I wish, rather and simply, and speaking as one who is called upon to preside regularly over criminal trials with a jury, to draw attention to some practical results for trial Judges of the matters which it has been necessary to discuss in the context of the present particular appeal.

In this State a Judge who is presiding at a criminal trial comes to the summing-up burdened with a great deal of appellate judicial advice as to how the summing-up should be framed. Three particular examples will make the point.

It seems to me, if I may say so with unfeigned respect, that the combined effect of the decisions in Longman , in Crampton and in Doggett makes it, if not quite impossible, at least extremely and unnecessarily difficult for a conscientious trial Judge when directing a jury, to give dutiful effect, as of course he must do, to the requirements of those decisions, while simultaneously giving effect to the requirement that he be succinct, simple and clear.

Suppose that the case is one like Doggett itself, that is to say, a case in which there is some, albeit perhaps patchy, corroboration of at least some parts of the complainant's own evidence. Suppose that counsel for the accused is alive to the forensic problems that are described by Gleeson CJ in paragraph [9] of his Honour's judgment in Doggett . Suppose that counsel for the accused, mindful of that forensic minefield, does not ask for a Longman direction; or, indeed, asks that no such direction be given. Where, it might reasonably be asked, does that leave the trial Judge? There are, obviously I should have thought, only two practical choices. One is to accede to the request that there be no Longman direction. The other is to over-ride that request in the spirit of Pemble v The Queen (1971) 124 CLR 107. If the Judge takes the former course, the current state of the law makes it overwhelmingly probable that any resulting conviction will be upset on appeal. If the Judge takes the Pemble approach, then he will find himself mired inevitably in the very problems of which Gleeson CJ gives warning in the paragraph [9] to which I have earlier referred; and there is raised thereby the prospect that a requirement intended to protect the accused turns out to have in fact exactly the opposite practical result.

Suppose, to take another practical possibility, that the trial Judge gives a Longman direction. Suppose that the jury, after retirement to consider its verdict, sends in a note asking the trial Judge whether there is any, and if so what, evidence indicative of any practical difficulty or difficulties in fact encountered by the particular accused by reason of the effluxion of time between the time of the alleged offence and the time of complaint. And suppose that, as in the present particular case, there is in truth not a scintilla of evidence of any such practical forensic disadvantage having been suffered by the particular accused. What, then, is the trial Judge to do? If he tells the jury the simple truth, it is likely to be held that he has thereby destroyed the efficacy of the Longman warning. If he tells the jury that it is no concern of theirs to enquire whether or not there is any such particular evidence; but that they are to proceed upon the simple basis that the experience of the Courts suggests that there has been some such forensic disadvantage, whether or not the particular accused has claimed it, or given evidence of it, the practical likelihood is that the jury will reason that, since it is not possible to see in any concrete way evidence of actual forensic disadvantage, there is no good reason why, as a matter of fact, it should be found that there has been any. In which event the apparent lack in the particular case of any discernible factual underpinning for the Longman direction produces, once again, the result that an intended protection for the accused ceases to afford the accused any protection, and tends rather to have the opposite effect in practice.

And, quite apart from the matters raised in the two immediately preceding paragraphs, what guidance, it might fairly be asked by a trial Judge, does the current state of the law give as to the practical definition of the sort of time lapse which justifies, in a real sense, the giving at all of a Longman direction. It is, I should think, simple enough for any trial Judge to grasp the concept, articulated by Kirby J in Doggett , that: "(t)he criterion for the provision of a warning as stated in Longman is not mathematically precise" . But what exactly, the trial Judge might find himself wondering, is meant by the proposition that "in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary" (emphasis added)? Even after some definition has been given to the fluid concept of "a comparatively short interval" , it remains necessary to consider, granted that there has been such a short interval, not whether a Longman direction might or might not be required, but whether such a direction is or is not required. If the Judge approaches that conundrum upon the basis that the determining consideration is the presence of an unacceptable risk of unfairly prejudicial forensic disadvantage, then either the Judge assumes as a matter of law, and notwithstanding the complete absence of relevant evidence, that there has been some such forensic disadvantage; or the Judge refuses to give the direction unless there is in hand at least some credible evidence from which there may be drawn a reasonable inference that there has been, in a sense that is not far-fetched or fanciful, relevant forensic disadvantage. Either way, the answer gives rise, as I have attempted to demonstrate in the preceding paragraphs, to yet further practical problems.

There is one additional matter worthy of present consideration. A commonsense understanding of the real world suggests that a jury which is given a Longman direction in the form now apparently required, is likely to reason that the trial judge, although he has stressed repeatedly that it is not for him to tell the jury how the facts should be found, is in fact sending a none-too-subtly coded indication to the jury that the dangers of convicting are such that the jury ought to return a verdict of not guilty. 116 Wood, CJ. at CL. added some observations of his own and said, dealing with passages in Longman (supra), Doggett (supra) and Crampton (supra):- These passages have been taken up, so it seems to me, as requiring that an instruction in equally positive terms, be given in every case involving a substantial delay, irrespective of whether or not there is any evidence, or basis beyond suspicion, that the absence of contemporaneity between the alleged offence and complaint, or trial has in fact (not 'might have') denied to the accused a proper opportunity to meet the charge or charges brought: see for example R v Roddom (2001) NSWCCA 168, R v GJH (2001) NSWCCA 128 and R v Roberts (2001) NSWCCA 163.

Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant's evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way. 117 His Honour identified the reasoning in those decisions as deriving the direction from the onus and standard of proof when he reflected on the form of the direction usually given and called for a re-consideration of the form of the warning:- The difficulty which I have with this proposition is that it elevates the presumption of innocence, which must be preserved at all costs, to an assumption that the accused was in fact innocent, and that he or she might have called relevant evidence, or cross examined the complainant in a way that would have rebutted the prosecution case, had there been a contemporaneity between the alleged offence and the complaint or charge. That consideration loses all of its force if, in fact, the accused did commit the offence. In that event there would have been no evidence available of a positive kind, relating for example to the existence or ownership of the premises, or of a motor vehicle or other item, associated with the offence charged, or going to establish an alibi for the relevant occasion, no matter how contemporaneous the complaint or charge was with the offence.

I do not seek by these observations to question the common sense considerations that delay can, and in many cases will, occasion difficulty to an accused who may have lost an opportunity to investigate whether a complaint of sexual misconduct could, or could not, have occurred at those places, or within the time frames alleged and, even more importantly, to gather physical evidence in the form of records, or evidence from other witnesses that would support such a proposition. The simple fact is that records can be lost or mislaid, and the memory of potential witnesses may dim, or they may not be capable of being found.

For these reasons, as Spigelman CJ noted in R v Johnston (1998) 45 NSWLR 362, in sexual assault cases which commonly turn upon a direct conflict or word against word, between a complainant and an accused, and where there is no independent verification of whether the event occurred, or of whether it was consensual, the contextual details of the alleged conduct will often prove to be " of definitive significance " (at p 370).

These are matters which can and should properly be placed before a jury, as relevant to its assessment of the prosecution case. My concern lies more with the unequivocal nature of a warning , which must be given by a trial judge who does not himself or herself know where the truth lies, that the accused was unable to adequately test and meet the prosecution case.

If in fact the accused did commit the offence charged, any such warning or direction would be misleading if not positively untrue. A similar consideration would apply if, in fact, the accused was not prejudiced, being able, in the particular circumstances of the case, for example to call positive and objective evidence in rebuttal, or where the absence of contemporaneity did not in any way deprive him or her of such an opportunity.

The latter circumstance might arise, for example, where the complaint related to a time and place where the accused was in fact living alone with the complainant, and in circumstances where, no matter what inquiries were made, the case became one of word against word, such that rebuttal evidence could never have been obtained.

I have no difficulty with the decision in Longman , or with the subsequent decisions, if understood as decisions on their own facts, that is, as cases where the delay was of such an inordinate degree that it was impossible for an accused even to begin to investigate the circumstances alleged. Nor do I have any problems with the warning now required, where there is evidence, or good reason to suppose positively, that the accused has been prejudiced.

Otherwise, I would respectfully raise for consideration, whether some modification should be made to the warning which, it seems to me, must now be given, in invariable and emphatic terms, of the fact of prejudice. In that regard I do not consider it unimportant that, in the various passages cited, the reasons given for the warning have at times spoken in terms of the possibility, rather than the fact, of prejudice, as underpinning it (see also in this regard the observations of Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439 at 454 to 455.

Nor do I consider it irrelevant that the impact of delay is double edged, since it is just as likely to occasion practical difficulty for the prosecution in pinning down times and places, and in gathering relevant witnesses.

For the reasons identified in Regina v GPP ([2001] NSWCCA 493), and by Sully J in this appeal, notwithstanding the number of times that the Longman direction has been considered, there still is a sharp division in the High Court (following Doggett v The Queen ) as to the circumstances when, and the terms in which, the necessary warning should be given. Additionally, there is the concern upon which I have focused concerning whether or not the warning should be given in terms that the appellant has been forensically disadvantaged on the one hand, or might have been so disadvantaged, on the other hand.

It needs to be borne in mind that the direction presently under consideration is but one of a multitude of directions which now fall to be considered by a trial judge faced with the task of summing up to a jury in a sexual assault case. They include:- (a) the Murray direction ( R v Murray (1987) 11 NSWLR 12) to the effect that where there is only one witness asserting the commission of a crime, the evidence of that witness " must be scrutinized with great care " before a conclusion is arrived at that a verdict of guilty should be brought in; (b) The Longman direction (as reinforced in Crampton and Doggett ), that by reason of delay, it would be " unsafe or dangerous " to convict on the uncorroborated evidence of the complainant 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. (c) The Crofts direction ( Crofts v The Queen (1996) 186 CLR 427), if a jury is to be informed, in accordance with s 107 of the Criminal Procedure Act , that a delay in complaint does not necessarily indicate that the allegation is false, and that there may be good reasons why a victim of sexual assault may hesitate in complaining about it, then it should also be informed that the absence of a complaint or a delay in the making of it may be taken into account in evaluating the evidence of the complainant, and in determining whether to believe him or her (but not in terms reviving the stereotyped view that complainants in sexual assault cases are unreliable or that delay is invariably a sign of the falsity of the complaint: Crofts at 451). (d) The KRM direction ( KRM v The Queen (2001) 75 ALJR 550) to the effect that, except where the evidence relating to one count charging sexual assault is admissible, in relation to another count or counts alleging a separate occasion of such an assault, the jury must consider each count separately, and only by reference to the evidence which applies to it; balancing that direction, where appropriate, by a reminder that if the jury has a reasonable doubt concerning the credibility of the complainant's evidence on one or more counts, they can take that into account when assessing his or her reliability on the other counts (see Regina v Markuleski [2001] NSWCCA 290 at paras 259-263). (e) Any warning which may be required by reason of a ruling that limits the use of evidence concerning a complaint, or delay in complaint, to the question of credibility (eg under s 108(3) of the Evidence Act as an exception to the credibility rule), or alternatively that allows it to be taken into account (under s 66 of the Evidence Act as an exception to the hearsay rule) as evidence of the facts asserted. (f) The Gipp warning (conveniently so called, although there was divided reasoning in Gipp v the Queen (1998) 194 CLR 106) concerning the way in which evidence of uncharged sexual conduct between an accused and a complainant can be taken into account as showing the nature of the relationship between them, but not so as to substitute satisfaction of the occurrence of such conduct for proof of the act charged; (g) Any warning that may be necessary in relation to the use of coincidence evidence (under s 98 Evidence Act ) where the accused is charged in the one indictment with sexual assault against two or more complainants, requiring the jury to be satisfied beyond reasonable doubt first of the offences alleged in respect of one complainant, and then of the existence of such a substantial and relevant similarity between the two sets of acts as to exclude any acceptable explanation other than that the accused committed the offences against both complainants; (h) A BRS direction ( BRS v The Queen (1997) 191 CLR 275) that where evidence revealing criminal or reprehensible propensity is admitted, but its use is limited to non propensity or tendency purposes, for example those considered proper in that case, then it is to be used only for those purposes and not as proof of the accused's guilt.

In all of these circumstances, bearing in mind also the desirability of containing a summing up to an acceptable length; of ensuring its immediate relevance to the actual trial ( Regina v Zorad (1991) 19 NSWLR at 91, Regina v Williams NSWCCA 10 October 1990, KRM v The Queen, and R v Chai [2002] HCA 12 at 18 ); of avoiding unnecessary judicial input into the fact finding process ( Azzopardi v The Queen [2001] HCA 24 ); and of paying due respect to the tactical considerations which are best judged by trial counsel in the actual atmosphere of the trial, I consider it timely for there to be a further review of the evidentiary, and other requirements of procedural law that apply to cases of sexual assault, particularly those involving children.

In summary, in relation to this specific aspect of this appeal, I repeat my concern that the direction currently required amounts to a warning that, in fact, the accused was unable by reason of the delay to test or to meet the prosecution case. Two problems emerge:- (a) the giving of such a direction involves a finding of fact that this was the case, whereas it might not be so - indeed it may be positively incorrect; and (b) so far as it involves a finding of fact then it intrudes into the proper role of the jury. 118 Although these passages cited from both cases are extensive, their importance is such as to warrant reiteration. With the observations of all of their Honours I have cited, I agree. I further observe that where the warning, as here, neglects to draw to the jury's attention that the delay has or may have prevented the testing of the Crown case, there is another side to the commonsense observation of Sully, J. which also involves a judicial intrusion into the jury's function, where such direction as has been given focuses upon the effect of delay on the accused's case rather than the Crown case. In such a case the Crown case may be too readily accepted by the jury, and because the accused is or may be unable to meet it (as the jury have been judicially informed is the case) the conclusion of guilt might be more easily drawn. The absence of an appropriate warning may cause a jury to apply a lesser standard of satisfaction. In my view, an appropriate warning will refer to the possible effects on both the Crown and defence cases and will refer to the difficulty of testing the Crown case and the assessment of the weight to be given to it. 119 The warning is intended to ensure trials are fair which might otherwise have been stayed as abuses for delay. Analysed in this way, an appropriate warning is a legal necessity for a fair trial. The absence of an adequate direction will result in the trial not being a fair trial according to law (see Mraz v. Regina (1955) 93 CLR 493). In such circumstances, it is hard to see room for the application of Rule 4 or the proviso. 120 Heydon, JA. in GPP (supra) regarded the absence of an appropriate direction as not "fundamental" in the sense referred to in Regina v. Wilde (1988) 164 CLR 365 and Regina v. Glennon (1994) 179 CLR 1 but as reflecting on whether a conviction might be regarded as inevitable that is, whether the direction would found a basis for the possible experiencing of a reasonable doubt. Such a view relates the necessity for a Longman direction to the onus and standard of proof. Whether its absence would cause such a fundamental defect in the trial as is referred to in those cases need not be resolved since nonetheless its absence would result in a trial which was not a fair trial according to law. Thus unless, postulating a proper direction, the appellate court would have no reasonable doubt of guilt on the evidence at trial, the appeal should be upheld (see Festa v. The Queen (2001) 76 ALJR 291). 121 In my view, even though no application for a proper direction is made (unless perhaps, the lack of application was established as proceeding from a tactical consideration), even where, as here, conviction on all or most of the counts in both trials would be inevitable or nearly inevitable, the present state of the law requires that unless there is a direction which approaches nearly enough to the Longman requirements so that the jury could be seen to have the requisite understanding the appeal should be allowed. 122 It is for these reasons I have concluded the appeals should succeed. The evidence is, however, such that there should be new trials. I therefore agree with the orders proposed by Kirby, J. 123 KIRBY J: I have had the advantage of reading the judgment of Hodgson JA in draft. There were two broad areas of complaint in respect of each trial. They were: · First, the admission of evidence, either upon the basis of relationship or coincidence, and the directions given in respect of such evidence. · Secondly, the directions given in respect of delay; the so-called Longman Direction. 124 I agree with Hodgson JA, and for the reasons he states, that there was no error in respect of the first issue in either trial. I do not, however, share his Honour's view on the second issue. I shall, therefore, deal with that issue.

The Longman Direction 125 Both trials involved significant delay. It is necessary to look at what was said on the question of delay in each trial. 126 The first trial concerned the allegations of CPS. The appellant (WRC) was indicted on 28 August 2000 upon four counts. The offences were alleged to have been committed at various times between 1 October 1976 and 30 June 1977. CPS was born on 27 August 1968. The appellant was his teacher in Year 3. The proceedings, therefore, were based upon the recollection of CPS, now an adult, of incidents which occurred when he was a child aged approximately eight years. The complaint was first made to the police in 1997, more than 20 years after the events described. The trial, in August 2000, was more than 23 years after the alleged offences. 127 His Honour's directions on this issue, in the first trial, were brief. He said this: There is also one other matter that I bring to your attention, in which the law requires me to bring to your attention and it is a matter that has been also referred to you by counsel for the accused. And this is: that because of the delay between the time when these events are alleged to have occurred - that is in 1977 in relation to [CPS] and 1978 in relation to [TEL] - and the time of the allegations were brought to police notice, which occurred in 1998, following the police being brought into the matter with the police statement - do you recall the evidence of the police statements being made in January 1997? - following that delay of which is twenty-two or twenty-three years, or thereabouts, the accused has necessarily had difficulties in meeting those allegations.

The examples of the difficulties that were brought to your attention during the course of the trial and the closing addresses are, in a sense, the accused has had to conduct his defence in relation to the allegations that he indecently assaulted [CPS] and [TEL] at the army barracks in 1977 and 1978. And now, after a period of years, [there] have been changes made in some respects to the barracks. An example, of course, is after twenty-two years there is a disputed issue as to what type of floor was on the drill hall; a dispute about what kind of windows were in the drill hall (painted or frosted); what was the situation in relation to an occasion, was it a parade day when the squadron was being presented to 100 to 150 people milling around; or was it an occasion when the squadrons were not there and there was only a skeleton staff, perhaps a dozen, or in some cases perhaps two or three.

I am just drawing your attention to these issues which have arisen in this trial, and the fact that you, the jury, are asked to reflect on and consider findings in relation to disputed issues that deal with matters that are some twenty-two or twenty-three years in the past. 128 The second trial was the consequence of allegations by TEL. The appellant was indicted on 30 October 2000 upon seven counts. The offences were said to have taken place at various times between 18 February 1978 and 28 January 1979. The complainant was born on 10 March 1969. He went to the same school as CPS. The appellant was his teacher. The complainant first made a complaint in 1979 to the school authorities. He made a statement to the police in 1997. TEL was, at the time of the alleged offences, about nine years old. The trial took place more than 21 years after the events described. 129 In the second trial, his Honour summed up on this issue in these terms: There is one further direction that I give you in relation to this matter and that is this, that because of the delay between the time when these events are alleged to have occurred, that is in 1978, and the time when these allegations were brought to ... notice, it (sic) necessarily had difficulty in meeting these allegations.

That is a matter, members of the jury, that I am bound under the law to bring to your attention and to remind you of those difficulties.

It is a matter that you should take into consideration, that is the prejudice that has been suffered by the accused in meeting these claims, meeting these allegations, that his ability to recall and gather evidence pointing to his innocence has been adversely affected.

That is a matter for you to consider. It is a matter for you to take into account, as I say, that he has been placed in a difficult situation, now having to answer allegations relating to 1978.

Now ... the accused has been placed in a situation of hardship in adequately and properly preparing his defence by reason of that delay by reason of the fact that the matters that might have been fresh in the memory in 1978 might well have faded from memory. And there may be other matters that could have been attended to but were not.

And in this case, you heard from Mr Webb, counsel for the accused, refer to the difficulties in relation to a number of disputed issues such as was there a stencilling room in the ... Prep School in 1978 on the first floor.

And the difficulty in the year 2000 of ascertaining what the position was. Did he have a mustardy coloured four door sedan in 1978, or did he not. Was the school playing cricket on Saturday at Primrose Park or not. And there are other matters that you have been told about, and they are matters, members of the jury, that you should reflect on and consider in relation to the fact that there has been an absence of complaints. 130 Each case, therefore, concerned allegations of sexual molestation of a young child. One, at least, involved delay in making any complaint. Both cases involved significant delay in prosecution. A Longman warning was called for in each case. The Crown did not suggest otherwise. 131 The appellant complains that, in neither trial, did the directions conform with the requirements of Longman v The Queen (1989) 168 CLR 79. The deficiencies asserted by the appellant, common to both trials, were as follows: · First, the direction was not given with the firm voice and authority of the Judge administering a warning, identifying matters which the jury was bound to take into account. Rather, the issues were put in a way which suggested they were a summary of points made by counsel. · Secondly, the appellant's difficulties, caused by delay, were not adequately identified. The only matter identified, namely, the physical changes to the army barracks, was an aspect which was relatively minor. · Thirdly, no reference was made to the need for extreme caution before acting upon the recollection of events that occurred in early childhood. 132 A number of issues arise: · First, what is required by a Longman warning? · Secondly, were those requirements met, or substantially met, in the directions given in each trial? · Thirdly, if they were not, is there any room for the application of Rule 4, or the proviso?

The Requirements of Longman 133 The statement of principle in respect of the obligation to warn juries comes, of course, from the joint judgment of Brennan, Dawson and Toohey JJ in Longman v The Queen (supra), where their Honours said this: (at 91) But 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 [1987] AC 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 twenty 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 (NSW) (1989) 168 CLR 23) 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 twenty 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. 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." 134 The need for such a warning can be traced to two matters (cf Kirby J, Doggett v The Queen (2001) 182 ALR 1 at 26). They are matters known to the Courts through experience, but unlikely to be known to juries, unless the subject of a warning. The first matter was described by Gaudron, Gummow and Callinan JJ in Crampton v The Queen (2000) 176 ALR 369, in these words: (at 379) ... 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. 135 Their Honours said: The trial judge should have instructed the jury that the appellant was, by reason of the very delay, unable adequately to test and meet the evidence of the complainant. 136 In Doggett v The Queen (2001) 182 ALR 1, Gaudron and Callinan JJ elaborated in these words: (at 11) ... the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, of more importance is 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." 137 The second matter emerges from the judgments of Deane and McHugh JJ in Longman. McHugh J said this: (at 107) The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. 138 His Honour added: (at 107/108) Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine. 139 The first of these matters has been questioned by this Court in R v BWT [2002] NSWCCA 60 (Wood CJ at CL, Sully and Dowd JJ). In that case the trial Judge gave a warning which was framed in terms of the accused possibly having difficulties occasioned by delay ("it may have resulted in some difficulties for the accused in defending himself"), rather than the accused in fact having such difficulties. Applying Longman, the Court of Criminal Appeal felt obliged to uphold the appeal. Had Longman (and the cases after it), been expressed less emphatically, as their Honours clearly believed appropriate, then the appeal would have been dismissed. Wood CJ at CL said this: (para 13/15) 13. These passages have been taken up, so it seems to me, as requiring that an instruction in equally positive terms, be given in every case involving a substantial delay, irrespective of whether or not there is any evidence, or basis beyond suspicion, that the absence of contemporaneity between the alleged offence and the complaint, or trial has in fact (not 'might have') denied to the accused a proper opportunity to meet the charge or charges brought: see for example R v Roddom [2001] NSWCCA 168, R v GJH [2001]NSWCCA 128 and R v Roberts [2001] NSWCCA 163.

Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant's evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way.

The difficulty which I have with this proposition is that it elevates the presumption of innocence, which must be preserved at all costs, to an assumption that the accused was in fact innocent, and that he or she might have called relevant evidence, or cross examined the complainant in a way that would have rebutted the prosecution case, had there been a contemporaneity between the alleged offence and the complaint or charge. That consideration loses all of its force if, in fact, the accused did commit the offence. In that event there would have been no evidence available of a positive kind, relating for example to the existence or ownership of the premises, or of a motor vehicle or other item, associated with the offence charged, or going to establish an alibi for the relevant occasion, no matter how contemporaneous the complaint or charge was with the offence. (emphasis in original) 140 His Honour recognised that, as a matter of common sense, delay can, and in many cases will, occasion difficulties to an accused. However, Wood CJ at CL identified his difficulty with Longman, as it has been interpreted, in these words: (para 18) These are matters which can and should properly be placed before a jury, as relevant to its assessment of the prosecution case. My concern lies more with the unequivocal nature of a warning , which must be given by a trial judge who does not himself or herself know where the truth lies, that the accused was unable to adequately test and meet the prosecution case" (emphasis in original) 141 However, with respect, I disagree. Significant delay does create disadvantage, guilty or innocent. Our system of criminal justice seeks to fireproof each conviction against error. It does so through the combined operation of the fundamental principles of criminal justice (the presumption of innocence and the requirement of proof beyond reasonable doubt) and the adversarial system. The accused may cross examine and call evidence. The proof offered by the Crown must be sufficiently robust to withstand the assault upon it even of the guilty. 142 The potency of cross examination as a means of exposing unreliable evidence diminishes significantly with time. In State v Saporen (1939) 205 Minn 358 (quoted in McCormick on Evidence, 2nd Ed (1972), page 602), the following was said: The chief merit of cross-examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is the immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others. ... 143 The method of cross examination is an attack upon detail, exposing contradictions and unreliability. If the trial is undertaken within a reasonable time, the excuse for unreliability of fading memory is unlikely to be persuasive. However, where the trial is delayed, the accused is disadvantaged in two ways. First, the testimony is likely to be more vague, bereft of the detail which may be used to expose unreliability. Secondly, that absence of detail, and any contradiction that may happen to emerge, can the more easily be explained by reference to the passage of time. The jury therefore is more likely to be forgiving of shortcomings in the complainant's evidence, especially in the context of charges which arouse strong feelings of prejudice or revulsion (cf Kirby J Doggett (supra) at 25, para 118). 144 Returning to the requirements of Longman, Sully J in R v BWT (supra) provided a helpful analysis of matters which must be included to conform with the authorities. His Honour said this: (para 95) 95[3] ... Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Doggett : (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 of a caution will not sufficiently comply with what is required by law.

It seems to me to follow that any trial Judge who is framing a Longman direction ought to ensure that the direction is framed, in terms, as a warning .

(b) That which is to be warned against is, to return to the majority judgment in Longman itself: 'that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], 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, was satisfied of its truth and accuracy' . (emphasis in original) 145 His Honour then distilled six matters which a Longman direction should include. He said this: (para 95) 95[3] ... 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 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 .

The Directions in these Cases 146 The directions given in the first trial, in my view, plainly did not conform, or substantially conform, to these requirements. The direction was not framed as a warning. Arguably, the direction adequately dealt with the difficulties which the accused experienced in presenting his own case. The jury was told that the accused necessarily had difficulties in meeting the allegations by reason of the delay. An illustration was provided concerning the appearance of the army barracks, which had changed. However, the jury was not told that the complainant could not be adequately tested by reason of the delay. Nor was reference made to many of the other issues identified by Sully J. 147 The direction given by the learned trial Judge in the first trial, it will be noticed, was significantly less detailed, and covered fewer of the issues catalogued by Sully J, than the Longman direction in R v BWT (supra), which was found by the Court of Criminal Appeal not to be adequate. 148 Further, having regard to the age of the complainant, when the events which he was describing occurred, it was important that his Honour warn the jury of the fragility of recollection in one so young. 149 The directions in the second trial were more detailed. However, I believe that they also plainly failed to conform to the requirements of Longman, for many of the same reasons. 150 Although, in the context of the warning, it would have been appropriate to refer to matters which may be regarded as confirmation of the complainant's account (including the striking similarity of the evidence given by the other boy), that did not, in my view, remove the need for such warning. The disadvantage to the appellant arising from delay remained, whether there was corroboration or not. The jury needed to be told about it, so that its assessment of the complainant's evidence (and that of the other boy) could be made with an appreciation of the appellant's position. 151 In both trials, therefore, I believe that error has been established.

Rule 4 and the Proviso 152 No objection was taken at either trial to the directions which are now impugned. Rule 4 therefore applies. 153 In R v GPP [2001] NSWCCA 493, Heydon JA (with whom Wood CJ at CL and Carruthers AJ agreed) made the following remarks on the availability of Rule 4, in the context of a failure to conform with Longman: (para 60) 60. The Crown's first point in answer was that counsel for the appellant did not seek at the trial the direction which it is now said should have been given, and that leave is required under r4 of the Criminal Appeal Rules to advance these grounds. Counsel's failure is regrettable, but if the appellant's criticisms are sound, they are, in the light of the High Court authorities, sufficiently important for leave to be given, as it customarily is by this Court in cases concerning Longman directions. 154 In the same case, Heydon JA made the following comment upon the proviso: (para 111) 111. The application of the proviso depends on the error not being one which is so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and on the conviction being 'inevitable', so that the appellant can be said not to have lost a chance which was fairly open to him to have been acquitted. See Glennon v R (1994) 119 ALR 706 at 710-712. This error is not fundamental in the sense just described. Attention must therefore be directed to the strength of the Crown case. 155 Here, unquestionably, the Crown case against the appellant in both trials was strong. However, I do not believe in either case it can be said that conviction was inevitable (Doggett v The Queen (supra) Gaudron and Callinan (para 55) (182 ALR 1 at 12); Kirby J (para 151) (182 ALR 1 at 33)). Again, the comment of Heydon JA in R v GPP (supra) is apposite: (para 112) 112. The appellant's submission that the Crown case was weak is baseless. But once it is assumed, as it must be, that the prejudicial effect of delay on the forensic position of the appellant was not obvious to the jury, unless it had been explained to them, the warning which was not given could have caused them to experience a reasonable doubt. 156 Therefore, I believe the appropriate order is as follows: 1. The appeal in respect of each trial is upheld. 2. The conviction recorded as a result of each trial is quashed and the sentences set aside. 3. There should in each case be a new trial. **********

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CITATION : Regina v. WRC [2002] NSWCCA 210 revised - 11/06/2002 FILE NUMBER(S) : CCA 60224/01 HEARING DATE(S) : 3 April 2002 JUDGMENT DATE : 7 June 2002

COUNSEL : Mr. Byrne SC for appellant Mr. G.E. Smith for the Crown SOLICITORS : Baker Deane & Nutt for appellant S.E. O'Connor for Crown CATCHWORDS : CRIMINAL LAW - EVIDENCE - Circumstantial evidence - Coincidence evidence - Tendency evidence - Relationship evidence - Probative value and prejudicial effect - Contamination - CRIMINAL LAW - Appeal against conviction - Longman direction - Whether necessary - Whether adequate - Whether rule 4 leave should be granted. LEGISLATION CITED : Evidence Act 1995 ss.95, 97-101, 135, 137, 192. Ananthanarayanan (1994) 98 Cr.App.R 1 BRS v. The Queen (1997) 191 CLR 275 Crampton v. The Queen (2000) 75 ALJR 133 Doggett v. The Queen (2001) 75 ALJR 1290 Festa v The Queen (2001) 76 ALJR 291 HG v The Queen (1999) 160 ALR 554 Hoch v The Queen (1998) 165 CLR 292 Longman v. The Queen (1989) 168 CLR 79 Mraz v. Regina (1955) 93 CLR 493 Pfennig v. The Queen (1995) 182 CLR 461 CASES CITED: R v. AH (1997) 42 NSWLR 702 R v. BWT [2002] NSWCCA 60 R v. Colby [1999] NSWCCA 261 R v. OGD (No.2) (2000) 50 NSWLR 433 Regina v GPP [2001] NSWCCA 493 Regina v. Glennon (1994) 179 CLR 1 Regina v. VHP NSWCCA 7/7/97 Regina v. Wilde (1988) 164 CLR 365 Shepherd v. The Queen (1990) 170 CLR 573 State v Saporen (1939) 205 Minn 358 Westerman v. The Queen (1991) 55 ACrimR 353 DECISION : 1. The appeal in respect of each trial is upheld. 2. The conviction recorded as a result of each trial is quashed and the sentences set aside. 3. There should in each case be a new trial.

Probative Value and Prejudice 22 Mr. Byrne referred to Pfennig v. The Queen (1995) 182 CLR 461, and submitted that, just as the evidence in question did not demonstrate the high degree of similarity required for admission of tendency evidence having regard to ss.97 and 101 of the Evidence Act, it did not demonstrate sufficient similarity to justify admission as coincidence evidence having regard to ss.98 and 101 of the Evidence Act. The alleged similarities were merely that both were young pupils of the appellant, both alleged sexual assault by masturbation by the appellant, and both identified the same places where assaults occurred (a stencil room at the school and army barracks at Parramatta). Both were places known to be visited by the appellant, and were neither secret or unexpected. 23 Mr. Byrne also submitted that the trial judge was in error in admitting relationship evidence by the corroborating witness in each case. 24 Mr. Smith submitted that Pfennig did not apply, because the matter was governed by the Evidence Act: cf. R v. OGD (No.2) (2000) 50 NSWLR 433. 25 In my opinion, Pfennig is highly relevant to the effect of ss.97, 98 and 101 of the Evidence Act, in that the principles there stated concerning circumstances in which the probative force of similar fact evidence substantially outweighs its prejudicial effect are directly applicable to questions raised for decision by ss.101 and 137 of the Evidence Act: R v. AH (1997) 42 NSWLR 702. OGD does not suggest the contrary. 26 The essence of the approach to similar fact evidence, such as propensity evidence, established by Pfennig appears in the following passage from the judgment of Mason CJ, Deane J and Dawson J at 482-3: Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. (Hoch (1988) 165 CLR at 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at 564). See also Harriman (1989) 167 CLR at 602). Here "rational" must be taken to mean "reasonable" (See Peacock v. The King (1911) 13 CLR 619 at 634; Plomp v. The Queen (1963) 110 CLR 234) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle. 27 Plainly, that passage does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd v. The Queen (1990) 170 CLR 573; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence. 28 On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of the propensity evidence. 29 In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence. 30 In the present case, evidence was not admitted as tendency evidence under s.97, but as coincidence evidence under s.98. In order to consider its admissibility in accordance with s.98, and also to consider whether the requirements of s.101 were satisfied, it is necessary to be clear as to precisely what gave the coincidence evidence in this case its probative value. 31 In some cases, the probative value of coincidence evidence arises entirely from some striking similarity or peculiarity of the related events themselves, which supports an inference that the same person was involved in them. In such cases, if it is shown that the accused was involved in one such event or was the only person who could have been involved in both or all such events, an inference may be drawn that it was the accused who was involved in both or all of them. 32 In other cases, the probative value of the coincidence evidence arises not merely from the related events, but also, and especially, from the circumstance that two or more persons independently give evidence of the related events, where it is improbable that they would have given accounts with such similarity unless both or all accounts had foundation in fact. In such cases, in my view, the related events need not necessarily have such striking similarity as is required where it is only the events themselves that are said to have probative value. However, in such cases, the exclusion of any reasonable possibility of joint concoction or contamination is absolutely crucial to the probative value of the coincidence evidence: cf. Ananthanarayanan (1994) 98 Cr.App.R. 1, R. v. Colby [1999] NSWCCA 261. 33 In each of the present cases, the coincidence evidence was plainly of the latter kind. The crucial question at issue was not whether, given that certain events occurred, it was WRC who was responsible: rather, it was whether or not the events themselves occurred. What could strongly support the probability that the events occurred is that two persons independently gave such similar accounts. Leaving to one side for the moment the possibility of concoction or contamination, there is very high improbability of two persons independently coming forward with such similar stories, unless those stories had a factual basis. In my opinion, that is one reason why, accepting that the material was not sufficient for tendency evidence, which must depend only upon objective fact, rather than upon two or more persons giving similar stories, the material may be sufficient for coincidence evidence. 34 Viewed in that way, in my opinion the evidence is of significant probative value, as required by s.98. The question then is whether that probative value substantially outweighs any prejudicial effect (s.101), or whether the danger of unfair prejudice outweighs its probative value (s.137). There may also be a question whether its probative value is substantially outweighed by the danger that it might be unfairly prejudicial (s.135). Despite the variations in wording, in my opinion if the evidence satisfies s.101, it will necessarily satisfy s.137 and not be liable to discretionary rejection under s.135. 35 In order to decide whether the s.101 test is satisfied, it is necessary to consider whether the criterion laid down in Pfennig is met, at this stage leaving to one side the question of concoction or contamination, a matter subject to separate submissions. Let us suppose that a jury had a reasonable doubt, in the case of CPS, in the absence of the evidence of TEL. Would the evidence of TEL then leave no reasonable view consistent with the innocence of the appellant? In my opinion, the answer is yes. In my opinion, assuming there is no reasonable possibility of concoction or contamination, it is not reasonably possible that two persons could come forward with stories with the similarities of the stories of CPS and TEL unless they had foundation in fact. 36 This approach could raise a question which was not the subject of submissions either below or in this Court. Since the coincidence is not merely the similarity of objective circumstances related by the two witnesses, but also and primarily the fact that two witnesses should independently relate such similar circumstances, the improbability that gives the evidence its probative force is not so much the improbability of the related events themselves occurring coincidentally, as contemplated by s.98(1), as the improbability of two witnesses independently coming forward with evidence of related events unless their evidence had foundation in fact. One view could be that s.98 is a section that excludes evidence in certain circumstances so that if its terms do not precisely refer to certain evidence, then it does not apply to that evidence, and accordingly s.101 also does not apply. However, on that view there would be nothing in the Evidence Act to exclude application of the Pfennig approach, so the same result would follow. 37 As regards the relationship evidence, I see no error in the decision of the trial judge to allow relationship evidence in relation to the corroborating witness in each case, to the limited extent indicated by his Honour's judgment. There is force in the considerations discussed in the judgment of Greg James J, but in my opinion the course taken by the trial judge was a reasonable compromise. On the one hand, it avoided the complainants presenting a misleading picture of what they claimed to be their relationship with the appellant; and on the other, it avoided going into extraneous details. It was not prejudicial to the appellant, because the complainants' assertions that there were other occasions of abuse had no greater credibility than their assertions about the events the subject of the charges.

Members of the jury, I want to now take up with you a direction that I have already given to you in relation to the evidence of TEL and I gave it, you may recall very early in the trial when this evidence was led from TEL: namely that apart from the matters charged in the indictment, his evidence was that he had been indecently assaulted on other occasions than those charged. You will remember, members of the jury, that I told you by way of a warning that this evidence was only admitted on a very limited basis. It was limited on the basis of showing what the Crown contended was the true background, the true context in relation to the charges in the indictment; in other words to in the crown case avoid any speculation that might arise from the mind of the jury that well, in the background of an on going relationship of some 12 months in 1978 why did it happen so to speak out of the blue that on a particular occasion an assault was committed that would be a matter that could cast a shadow or a doubt over the reliability or credibility of TEL. It was only on that basis, members of the jury, that that evidence was admitted and I warned you at the time that it could only be used for that purpose. I also warned you at the time that it could not be used for the purpose of reasoning, 'Oh well, I might have a reasonable doubt about a particular charge in the indictment, but in view of the background that has been put to me that there were other occasions that I will find him guilty'. You will remember that I told you that that was a false and illogical process of reasoning. I told you that I would take the matter up again with you in my summing up as I am now doing because it is a most important matter for you to bear in mind and keep in the forefront of your mind. What you have to focus your attention on is whether or not the Crown has proved that these offences that are charged in the indictment were committed. You cannot substitute evidence that on other occasions TEL was alleging that he was indecently assaulted by TEL as proof of the matters charged in the indictment. You cannot do that. You must not do that nor can you. As I say, you cannot substitute that evidence for the evidence that relates to a particular charge nor can you use it to reason, 'Well, he is a person that on TEL's account has been doing it on other occasions. Then he has a tendency or propensity to commit offences of his kind. He is the kind of person that commits offences of this kind'. As I explained to you when I first gave you that direction: that is false and impermissible reasoning. You must not use that evidence in that way. It is a matter where it is led on the very limited basis that the Crown puts to you that this was the context, the background in which the Crown says these offences were committed in order to avoid any speculation in your mind as to why did they happen on those occasions and came out of the blue so to speak. So, then, members of the jury, your duty would be then, to take that on board for that limited reason but avoid any speculation on your part in that regard and you then confine and focus your attention on the evidence that bears on each particular charge and make up your minds in relation to that evidence whether or not you are satisfied beyond reasonable doubt of his guilt or not. 90 Notwithstanding those directions, in the form in which the evidence was given it showed little of the relationship as might have assisted the resolution of the matters left by his Honour to the jury but was capable of causing a deal of prejudice. It is hard to see how the jury could have applied these directions to evidence in this form. Should the evidence have been given in more detail there may have been even more prejudice, but if there was probative value it would probably have been higher. Other directions would then be appropriate 91 The problem becomes one of deciding what can be admitted, having regard to the directions that will have to be given. In any given case, the touchstone to be applied to decide to admit the evidence will be what the evidence reveals of the nature of the relationship as is necessary in the particular circumstances for a proper understanding of the context of the specific allegations so that those allegations themselves can be properly understood, when without the relationship evidence there is a real risk they might not. Where, as here, the relationship evidence is not tendency or coincidence evidence and is not directly probative of the acts founding the charges, the appropriateness of using it to prove a relationship which, although relevant, is hardly illustrated any more than it is by the other evidence, considering the form in which the relationship evidence is given, is doubtful. Since the directions need to show in a meaningful way how the evidence might be used and how it must not be used, the form of the evidence may make the task of so properly directing most difficult. Evidence in too general form, whether of tendency or relationship, is of limited if any use. 92 In Regina v. AN [2001] NSWCCA 372, Kirby, J. at 36 reviewed the purposes for which such evidence is properly admissible. In particular, at paragraphs 48 to 51, his Honour says:- Further, some form of balance needs to be maintained between evidence relevant to the offence charged, and evidence introduced either as relationship evidence, or evidence of guilty passion (cf. Hunt, CJ. at CL. in Beserick (supra) at 522. In Regina v. Bradley (1989) 41 A. Crim. R. 297, Shepherdson, J. said this (at 302):- It is in my view not necessary that in every case the whole history of sexual activity between an accused person and the complainant be admitted in evidence. In some cases a trial judge may have to take care to limit that history to what is sufficient to enable the jury to set in its proper perspective and to understand the acts alleged to constitute a particular offence. In other words, in some cases the 'full story' … may have to be limited. … In a case such as the present where there are quite a large number of instances of carnal knowledge alleged against the appellant prior to the first of the acts of alleged indecent dealing the prejudice to an accused person may be so great that the sheer number and weight of those instances may well overbear the jury in its consideration of the evidence in each of the three charges and prevent the jury from considering that evidence impartially.

Finally, the generality of evidence concerning relationship, on one view, may render it inadmissible. In Gipp v. The Queen (supra) Gaudron, J. said this (at 112/113):- General evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders evidence admissible as 'similar fact' or 'propensity' evidence. And in this case, there was no feature of the kind present in Regina v. Ball [1911] AC 47 that made it directly relevant to the question whether the appellant was guilty of the offences charged. Thus, unless there was some subsidiary issue in the trial to which it was relevant, the evidence of general sexual abuse was not admissible.'

Kirby, J. on this aspect, did not express a concluded view (cf. 73 ALJ 432 at 440-441). Powell, JA., in Regina v. MM [2000] NSWCCA 78, provided the following comment upon this decision (at para.46):- Although in the course of their separate judgments in Gipp v. The Queen (1998) 194 CLR 106, Gaudron, J. at 111-113 and Callinan, J. at 168-169 expressed the view that general evidence of sexual abuse on occasions other than those charged is, in the absence of conduct on the pat of the defence which raises an issue to which prior abuse is relevant, not admissible unless it has a special probative value which renders to admissible as propensity evidence, that view does not appear yet to command a majority in the High Court.' 93 In that case, I said at paragraphs 4-7:- The exception to which I have referred involves the question of the reception into evidence of the material of sexual activity extraneous to each particular charge as relationship evidence.

101 In Hodgson, JA.'s view, the applicant is precluded by Rule 4 from complaint about the inadequacies of these directions unless it is shown that the failure to complain at trial was not due to a tactical decision, particularly since the notes of TEL's 1979 complaint and CPS' first statement were not before the jury. On the material before us, I am unable to see that the failure to seek a re-direction might relate to the absence from the evidence of those documents or bear some tactical relationship to their absence. The evidence had closed and could hardly have been re-opened because of an application for a re-direction to properly comply with the law applicable to the evidence as it stood. 102 In my view, both directions were inadequate as failing to require the jury to consider the effects of the delay on the ability to test the Crown case, particularly having regard to the application of the principles in Regina v. Longman (1989) 168 CLR 79; Regina v. Crampton (2000) 75 ALJR 133; Regina v. Doggett (2001) 75 ALJR 1290; by this court in Regina v. GPP [2001] NSWCCA 493 and Regina v. BWT [2002] NSWCCA 60. In these cases the purpose, history and case law concerning the various forms of direction in the case of delay and the consequences of the omission of an appropriate direction are discussed. 103 In these decisions, it is noted that the law and practice in criminal matters on this topic is presently the subject of much difficulty and disagreement. It may well be that the topic is in need of re-consideration to ensure that any necessity for warning or direction accords with established fundamental principles. I will therefore turn to the extensive discussion in those latter two cases. 104 In GPP (supra), Wood, CJ. at CL. and Carruthers, AJ. agreed with Heydon, JA., who concluded that a direction which merely referred to a delay in complaint and the effect of time on memory was inadequate to deal with the loss of the means of testing the complainant's allegations. At paragraphs 49-51 he said:- It follows from the majority opinions in Doggett v. R. that delay coupled with forensic disadvantage is sufficient to create an obligation to give a Longman warning, and it follows from the majority opinions in Crampton v. R. together with that if Kirby, J. in Doggett v. R. , that delay capable of creating the phenomena described by Deane and McHugh, JJ. in Longman v. R. is also sufficient.

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Judgment (40 paragraphs)

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Cases Cited (41)