Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315

PY [1999] NTCCA 44; (1999) 105 A Crim R 505

1 IPP J: I invite Miller J to deliver the first judgment.

2 MILLER J: The appellant was charged on an indictment which alleged seven counts of indecent dealing with a child under the age of 13 years. On one count on the indictment he was acquitted by direction, but, in relation to the remaining six counts, convicted by a jury on 12 October 1999. The counts of indecent dealing alleged against the appellant were said to have occurred between the years 1976 and 1981 which meant that they were between 18 and 23 years prior to the trial of the appellant.

3 The case against the appellant was contained primarily in the evidence of the complainant who was his stepdaughter. She was born in March 1969 and therefore was under 13 years of age at the time of the alleged offences. She made no complaint in relation to those offences, contending that she had been too young and too frightened of the accused to do so.

4 It is unnecessary to detail the incidents of indecent dealing alleged. They are set out clearly in the learned trial Judge's directions to the jury. In essence the appellant was alleged to have interfered with the complainant over a 5-year period when she was between 7 and 12 years of age, there being one alleged incident of digital penetration (a matter which could only be the subject of a count of indecent dealing by reason of the time at which it was alleged to have occurred) two of cunnilingus, one of causing the complainant to touch the appellant's penis, one of kissing the breasts of the complainant, and one of the appellant making the complainant urinate upon him.

5 The appellant contended at trial that there had never been any sexual impropriety between him and his stepdaughter. He said that he had occasionally supervised her bathing but had never indecently dealt with her in that respect. He asserted in effect that the complainant was lying, making false allegations and that her evidence was so inconsistent that it was totally unacceptable. A possible motive for the complainant's testimony was given as her seeking the family farm following the death of her mother in late 1995 and being driven to make false allegations against the appellant by reason of bitterness and malice in relation to that issue.

6 Prior to the learned trial Judge's directions to the jury, the question had been raised about the extent of the so-called Longman direction that would be required. His Honour raised the matter with counsel in the following terms:

"FENBURY DCJ: A Longman direction is obviously required. I notice that you in your observations, Ms Braddock, said to the jury it would be dangerous to convict. Do I infer from that that that is what you would expect me to be saying?"

7 It was urged upon his Honour that he should indicate to the jury that it would be dangerous to convict in the terms of the case. The learned trial Judge indicated that he was unhappy with the use of the word "dangerous", but would consider the matter and decide exactly in what terms the jury should be charged.

8 When his Honour did charge the jury he gave what on any view of it was a very full and complete Longman direction. His Honour stressed the following:

(1) that the allegations in question occurred 18 to 23 years beforehand, which was "a long time ago on any measure";

(2) in assessing the reliability of the evidence of the complainant one had to have regard to the fact that the incidents related to a time in her age period when she was between 7 and 12 years;

(3) in looking at the reliability of her evidence the jury should bear in mind that the longer the delay between the happening of an event and the report about it to authorities, the greater the possibility of inaccuracy and error in recollection;

(4) recollections can be fallible and "there are the effects of imagination or prejudice ... upon our capacity to remember particularly things that occurred when we were much younger and we were children" (a passage that comes directly from the judgment of McHugh J in Longman v R [1989] HCA 60; (1989) 168 CLR 79 at 107 to 108);

(5) the only evidence against the appellant was that of the complainant;

(6) because there was no independent evidence, it would be difficult in these circumstances for any accused person to produce independent evidence to refute, rebut or reject the allegations made;

(7) the long delay which had occurred put the accused at a distinct disadvantage.

9 His Honour then concluded the direction with these words:

"As I have said, ladies and gentlemen, having said all of that, again it is clear in the case the crown relies heavily on the evidence of Jodie Burnham, the complainant, and I tell you, having said all of that, that you may act on her evidence alone if, after considering it and weighing it up with great care and considerable caution, you are satisfied beyond reasonable doubt that her evidence was reliable; that is, truthful and accurate in its essential, important parts. I am not saying you that in assessing it there is a need in the circumstances for you to be especially careful and cautious."

At the conclusion of his Honour's directions counsel were asked whether they any comment to make and neither counsel requested any redirection. Of course this fact must be seen in the light of the submissions which were made before the jury directions began.

10 The appellant appeals to this Court on a single ground of appeal:

"1. The learned sentencing judge erred in law in failing to direct the jury that it was dangerous to convict the appellant in circumstances where:

1.1 The evidence of Jodie Burnham was uncorroborated

1.2 The alleged offences were said to have occurred between 16 and 21 years before any complaint was made

1.3 Jodie Burnham was between the ages of 7 and 12 at the time of the alleged offences."

11 The submissions of counsel for the appellant contend that although a Longman warning requires no particular form of words, the words used by the trial Judge should clearly convey to the jury, having regard to the circumstances of the particular case, why they should take care before relying on potentially unreliable evidence to support a guilty verdict. It is argued in the present case it was essential that the trial Judge direct the jury that it would have been dangerous to convict in the circumstances of the case. Reliance was placed upon the judgment of Brennan, Dawson and Toohey JJ in Longman at 91 where their Honours said:

"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."

12 However, it should be noted that in the same case neither Deane J (at 102) nor McHugh J (at 108-9) made mention of the need to use the word "dangerous". McHugh J said:

"Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge."

13 In James v R [2000] WASCA 100 this Court dealt with a case in which the complaint made was almost in identical terms to that made in this appeal. Murray J (who whom Pidgeon and Wallwork JJ agreed) said (at [21] - [22]):

"The applicant's complaint is that her Honour's warning was inadequate because she did not speak of the "danger" of conviction on the uncorroborated testimony of the applicant. What her Honour said was that the jury should be 'extra careful' before they convicted on the complainant's evidence alone. Of course the complainant's evidence was the only evidence capable of satisfying the jury beyond reasonable doubt of the commission of the offences charged. Unless they were satisfied of the truth and accuracy of that evidence, it was not only dangerous to convict, but wrong as a matter of law, because the guilt of the applicant could not be established to the required standard of proof.

The purpose of the warning of which the High Court speaks in Longman is to highlight for the jury that it is only upon the evidence of the complainant that they may convict and that the circumstances of the case are such that the fairness of the trial process has been impaired by the loss of the capacity for the defence to adequately test the evidence. The warning heightens the focus of the jury upon the need to be persuaded of the truth and accuracy of the evidence before they may place reliance upon it. In my opinion, what her Honour said satisfied that requirement of the law. It is not necessary for a trial Judge to use the word 'danger' in giving the required direction provided he or she makes clear to the jury what the danger is."

14 I agree with the written submission of counsel for the respondent that the words used by the majority in Longman are not a formula which is to be parroted by a trial Judge without reference to individual circumstances. In this case the learned trial Judge carefully explained to the jury what dangers there were in convicting the appellant without the evidence of the complainant being carefully scrutinised and evaluated. Although the word "danger" was not specifically used, whatever danger there was was carefully explained to the jury. The warning given discharged the legal obligation which rested upon the learned trial Judge and complied in every respect with the directions given by the High Court in Longman. For these reasons, I do not consider there is any substance in the ground of appeal raised by the appeal.

15 The appeal is out of time. There is an application for extension of time within which to appeal. The delay was some two months but is accounted for by the appellant by reason of the fact that he relied upon his father to lodge the appeal and was unaware of the fact that no appeal had been lodged until some time late in November. However, it then took a further full month before a notice of appeal was filed. Exceptional circumstances are required to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if the extension is not granted (Gavin v R (1992) 68 WAR 195). In this case there seems to be an unexplained delay of at least a month and given that I consider there to be no ground of appeal in any event, I would refuse the application for extension of time within which to appeal.