The summing up.
58 There are scattered references throughout the summing up to the issues of delay and the age of the applicant at the time of each incident, and the potential impact of each of these matters upon the reliability of the complainant's evidence.
59 His Honour began by emphasising that the complainant was a crucial witness in the trial (SU 25). His Honour said, not quite accurately, the following:
"67. ... On the complainant's evidence, if you accept it, each of the sexual assaults occurred a minimum of 12 and a maximum of 17 and a half years ago.
68. The evidence is clear, if you accept it, that the complainant was six years old at the time of the first offence and possibly 11 and a half years old, I say possibly because my maths is not my strongest suit, but possibly 11 and a half years old at the time of the last, and she was more than 23 and a half years old at the time she gave her evidence. The accused challenges in cross examination the allegations, in particular the allegations that there was any form of sexual activity by him against the complainant."
60 Count 1 alleged an assault in 1987 when the complainant was six years old. The appellant was not apprised of that allegation until September 1996, a delay of nine years. The trial (February 2005) was 18 years after the incident.
61 Counts 2 and 3 were said to have occurred in 1991. The appellant was informed five years later. The trial took place 14 years after the alleged incident.
62 Counts 4 and 5, which are the important counts in respect of this appeal, were said to have occurred in 1992. The appellant was told in September 1996, a delay of four years. The trial was 13 years after the incident.
63 The reference to "a minimum of 12 and a maximum of 17 and a half years" was presumably a reference to the interval between each incident and the date of trial. As such, it was generous to the appellant, since the delay after September 1996 had been occasioned by him. Yet, his Honour and counsel recognised, in the discussion before the trial began (supra para [28]ff), a distinction should be made between the delay in bringing the allegations to the notice of the accused and the delay in bringing the matter to trial. Hayne J, in Crampton v The Queen (supra) (para 140) said this in the context of the need for the Longman warning: (at 11)
"The critical feature of the circumstances I have described is that many years had elapsed between the time of the alleged conduct and the accused being put on notice of the allegation."
64 Once an accused is apprised of the case he has to meet, he can cast his mind back to the time of the alleged offence. Only then can he begin to assemble the forensic weapons that may demonstrate that the complainant's account is untrustworthy or unreliable. Obviously, the longer the interval, the greater the prejudice. Was he there? Did he have the opportunity to commit the offence? Who else was there? Having regard to the circumstances, as he remembers them, what aspects of the complainant's account are wrong or unreliable? How can he demonstrate that inaccuracy?
65 If, having been told of the case he has to meet, the prosecution is further delayed before trial, that may add to the prejudice. Memories fade with time. However, where, as here, the accused is responsible for the delay by failing to appear, he can hardly complain of prejudice concerning that delay. Nonetheless, the jury must take into account the total delay, and its effect upon memory, in determining whether it is satisfied beyond reasonable doubt that the complainant's accusations are both true and accurate.
66 In respect of counts 4 and 5, therefore, the critical delay, in terms of disadvantage to the accused, was the four years between the alleged incident in 1992 and September 1996, when the appellant was told of the complainant's allegations by the police.
67 Returning to the summing up, his Honour thereafter identified a number of reasons why the jury should exercise caution before accepting the complainant's evidence. The summing up was in these terms:
"69. Now there are a number of matters that will cause you to have some caution, which I will speak about in more detail later, about accepting the complainant, and I want to tell you what they are. The passage of time somewhere between 12 to 17 and a half years, between the alleged offences and the trial; the age of the complainant at the time of the alleged events; the absence of immediate complaint, if you find there was such an absence, by the complainant to a person to whom she might reasonably have been expected to complain immediately; the passage of time between the alleged events and any report of the event by the complainant to the police, which I think was some six years; the presence of inconsistencies in the complainant's evidence on what the defence argue are significant matters; the difficulties the accused has in identifying the very day these offences are alleged to have occurred and the consequent difficulties that that would present to him in mounting a defence. All of those matters are warning signs you must recognise when considering the complainant's testimony."
68 The jury was reminded that it needed to be satisfied beyond reasonable doubt that the complainant's evidence was both honest and accurate (para 70). His Honour continued:
"72. Now it is important in understanding the warning that I am about to give you, that you understand this point. How you assess the believability of the complainant as she gave her evidence is a matter for you. But in the circumstances of this case I think it prudent to warn you that you must scrutinise the evidence of the complainant very carefully before you rely upon it to a degree where you are satisfied beyond a reasonable doubt."
69 The warning continued:
"74. I give you the warning which I am about to give you because in the past there have been cases, not necessarily sexual assault cases, but certainly including sexual assault cases, where the evidence of the criminal acts has come from one source only and the past experience of the court is that on some occasions that evidence has subsequently been demonstrated to have been unreliable.
75. Now evidence can be unreliable because it is a deliberate lie. It can also be unreliable because it is not accurate. You must not only be satisfied and satisfied beyond reasonable doubt that the complainant is honest, but you must also be satisfied the complainant is accurate. That is why the passage of time since the event and the complainant's age at the time of the alleged acts are important factors in assessing her reliability."
70 There followed a passage which was introduced by a reference to counsel's address. Although introduced by a reference to Mr Golding of counsel, his Honour, I believe, added the authority of the court to the direction when he explained the difficulties faced by the accused. He said this:
"76. As Mr Golding pointed out, the passage of years also inhibits the defence in accurately identifying the specific time these alleged offences are said to have occurred and mounting an answer with detailed precision in relation to the charge levelled. ..."
71 His Honour, in this context, reminded the jury that the span of time identified in count 1 was three months, was four months in counts 2 and 3 and eight months (1 April 1992 to 31 December 1992) in counts 4 and 5. His Honour added:
"77. ... So he says had the specific dates been identified, the accused - this is Mr Golding's argument - could with more certainty have been able to determine whether he had an alibi in the sense that he was not at the relevant premises but elsewhere in Australia on the nominated date. As the allegations presently are made, the accused is unable to advance any defence of that kind."
72 The jury was warned that a dishonest or inaccurate witness can be a convincing witness, especially if the witness believed she was being honest (para 78).
73 His Honour thereafter reminded the jury of the evidence relied upon by the Crown as corroboration in respect of count 5 (supra paras [21] to [26]). There followed an instruction which incorporated many of the fundamentals of the Longman warning. His Honour said this:
"82. You need to understand that what I have said or what I am saying is not to be taken as a direction or as an indication by me that you could not or should not convict on the complainant's evidence. All I am doing is warning you, for the reasons that I have given, that it is dangerous to convict unless you are satisfied beyond reasonable doubt as to the truthfulness and as to the accuracy of what the complainant has said in respect of the fundamental elements of each offence, or any offence, and you having scrutinised that evidence with great care and considered all of the factors relevant to its assessment including those that I have just directed you about and those in relation to delay."
74 The appellant complains that there is no reference in that passage, nor elsewhere in the summing up, to the difficulties faced by the appellant in testing the complainant's evidence after so long a delay. I will return to that issue below.
75 His Honour then turned to other issues before saying this:
"86. Members of the jury, I have just given you a warning that you should approach the complainant's evidence with great caution because the experience of the Court is that it would be dangerous to convict on the unsupported evidence of the complainant. ..."
76 Having given that warning, his Honour then said this:
"87. That is quite a long direction that I have given you about the warning about it being dangerous to convict on the unsupported evidence of the complainant and I just want to recapitulate what I have said.
88. I have warned you that for a number of reasons it would be dangerous to accept the complainant beyond a reasonable doubt, particularly in cases where you find there is no supporting evidence and the only case in which there could possibly be supporting evidence, and it will be a matter for you whether there is, is the last charge, the fifth count. Now you must consider the warning that I have given to you but it is open to you, having considered the warnings, for you to decide nonetheless that you are capable of being satisfied beyond a reasonable doubt as to her accuracy and as to her honesty on the essential elements of the offence, even though it would be dangerous to do so. In other words, it is a question for you."
77 His Honour went on to deal with the absence of a timely complaint and the effect that may have upon the complainant's "credibility or believability" (para 105). His Honour added:
"112. Evidence was led on the second morning of evidence, which was not the subject of cross examination, that on each of the three occasions the complainant alleged she was sexually assaulted, she did not complain to anyone because she was scared that no-one would believe her and because she was ashamed because she thought it may have been her fault. In some cases a delay in complaint may have an impact upon the defence in that access to evidence may be lost or memories impaired with the passage of time. We do know that the defence was confronted with the allegations in 1996 when an administrative decision was made by the Local Court that he should stand trial. That of course was seven or eight years after the first alleged assault and four or five years after the 1992 allegations. Thereafter of course he was aware of the allegations and the material contained in the police brief.
113. You must consider whether in the circumstances of this case the absence of immediate complaint delayed bringing the allegations to the attention of the accused and, if so, whether he was thereby prejudiced. You will also need to consider whether the absence of immediate complaint points to an unreliability of the complainant because it either bespeaks dishonesty or inaccuracy."
78 It will be noticed in that passage that his Honour leaves it open whether, in the delay between the incidents and the complaint, there was prejudice. That was an error, although not one specifically identified in the submissions of the appellant. Where there is significant delay, there is an irrebuttable presumption that there has been prejudice to the accused (R v BWT (supra) Wood CJ at CL at 247). Here, in respect of count 1, the delay was nine years which was significant. As it happened, the appellant was acquitted on count 1 and indeed acquitted on counts 2 and 3. The delay in drawing the allegations to the attention of the appellant in respect of counts 4 and 5 was, as mentioned, four years. The trial proceeded before his Honour upon the basis that a Longman warning was appropriate in respect of all counts (cf Dyers v The Queen (2002) 210 CLR 285 at 307, 329, 330). I will return to the significance of this error below.
79 His Honour then dealt with the elements of each charge, reminding the jury of the evidence concerning each element. His directions included a reminder of the warnings he had given in respect of the complainant's evidence (para 170) (count 3); (para 181) (count 4).
80 At the end of the summing up, his Honour returned to the issue of delay. He said this:
"223. There is evidence of delay. I have already referred to the evidence of delay. In respect of the first charge it could be seventeen and a half years, as much as that. In respect of the fifth charge it could be as much as twelve or thirteen years, just depending on your maths.
224. The evidence discloses that accused was an itinerant worker, who would spend on occasions months away from the Manning Valley region. You have heard the arguments of Mr Golding as to the difficulty the accused would have given the range of dates alleged in each of the charges in determining where he as on the occasion, that is the specific occasion that the complainant alleges he was sexually assaulting her."
81 His Honour added the following direction which later drew protest from the Crown:
"225. Now I give you this direction in respect of the delay. If it is your view the accused has lost or may have lost the opportunity of relying upon a credible defence as a consequence of delay, then you must acquit the accused of the charge or charges in which you found he lost or may have lost such an opportunity."
82 In the absence of the jury, the following exchange took place between his Honour and counsel for the Crown: (SU 99/100)
"CROWN PROSECUTOR: It is a very strong direction --
HIS HONOUR: -- It is a strong direction --
CROWN PROSECUTOR: -- Particularly in light of the fact your Honour that some of the delays directly attributable to the accused's --
HIS HONOUR: -- Yes, I thought about that --
CROWN PROSECUTOR: -- Failure to attend.
HIS HONOUR: I thought about that but so what? If at the end of the day --
CROWN PROSECUTOR: -- Well your Honour did say 17 years.
HIS HONOUR: I know, 17 years. If as a consequence of the delay whosever fault it is the accused has lost a credible opportunity to mount a defence. Sorry, has lost an opportunity to mount a credible defence. Even if it's his fault he is entitled to be acquitted."
83 The Crown added: (SU 100/101)
"CROWN PROSECUTOR: The difficulty I had with it your Honour is that your Honour did give a Longman Direction. I don't complain about that at all but one of the facets of a Longman Direction is the delay that it puts in front of the accused in properly investigating and mounting a defence. Your Honour's direction that they must acquit now in my submission cuts across --
HIS HONOUR: -- Not they must acquit."
84 Counsel for the accused did not object to the direction. His Honour refused, in these circumstances, to withdraw or modify the direction.
85 However, the appellant complains on this appeal about the direction. He seeks leave to argue that it constituted an error. Attention was drawn to the comments of Buddin J in R v GS [2003] NSWCCA 73. The trial judge in that case had told the jury that they were "required to ask (themselves) this: has the accused GS lost a chance of obtaining a fair trial" by reason of delay in complaint? In respect of that direction, Buddin J said this: (Santow JA and Smart AJ agreeing)
"[18] ... The problem with posing that question was twofold. First, it was not the question with which the jury was ultimately concerned. The issue to which their attention should have been directed in the present context, was that as the appellant had been disadvantaged in making his defence to the charge by reason of the delay, they were accordingly and consistently with the onus of proof, to consider the matter of delay in deciding whether or not to accept the complainant's evidence. The question which was posed thus raised a false issue for the jury's consideration and as such was likely to have distracted their attention away from the real issues that they were to determine. It also raised the bar too high in the sense that a failure to have a fair trial is a more stringent test than was required. Secondly, by posing the question as a warning, it gave rise to the possibility which was heightened by the introduction of the fair trial criterion, of a response that was in the negative. If the jury did in fact arrive at the conclusion that the appellant had not lost the chance of obtaining a fair trial, or putting it another way, had had a fair trial, then they may as a result have been more readily prepared to accept the complainant's evidence and thus convict. At the very least, a negative response to the question would in all likelihood have led the jury to put to one side any further consideration of the issues concerning the delay in complaint as bearing upon the credibility of the complainant's evidence as well as the directions which they received in relation to that question."
86 Here, in my view, the direction should not have been given. It had no basis in authority. Although it posed a question which may be relevant to the jury's consideration of delay, it did not formulate the test. Nonetheless, it was designed to be and was, I believe, a direction favourable to the accused. It offered a passage to acquittal without the need to examine the Crown case. In my opinion, answering the question in the negative would not carry the risk identified by Buddin J that the jury may the more readily accept the complainant's evidence and underrate delay. If the question were answered in the negative, the jury would then be required to examine closely the complainant's evidence and other material relied upon by the Crown. The verdicts on counts 1 and 3 suggest that they did so.
87 Returning to the summing up, his Honour included a brief summary of counsels' arguments. He said this, concerning the address by counsel for the accused in respect of the age of the complainant at the time of each alleged incident:
"242. He said to you that the reason that the jury was selected from the community at random is because there is an enormous pool of wisdom and we all understand, he said, human nature. I think by that he meant that you would understand human nature and that you would recognise that little girls lie. He said that is called commonsense and he pointed out that you have to evaluate questions of fact as part of your everyday lives."
88 His Honour reminded the jury of what counsel had said in respect to the sorts of issues that might be the subject of an extended Longman direction. The summing up was in these terms:
"245. He dealt with the Crown's submission on the dream and he said 'Well look there is no evidence of a dream' and as I understood he was not putting to you that the complainant had dreamt but rather what was saying to you was 'But gee whiz there's an imprecision about her evidence'. The evidence of her clothing had the hallmarks of being unclear. There was evidence of a shower and there was evidence of a bath and he said you must be left in an unclear position as to what had actually occurred in respect of that final incident and so it went on. So he said there is an imprecision as to her evidence or an inconclusiveness on some occasions as to what it all means."
89 In the context of the first count, his Honour reminded the jury (para 246) of counsel's rhetorical question: how is the accused to answer a charge where there is no surrounding detail? He added:
"246. ... He says the detail is important because what the accused does not know is who was there or what they are doing. He said 'We don't even know what time of the year it happened and whether the accused was in the district'. ....
249. ... the accused was away for months at a time. In respect of the last offence, on the defence argument, the accused had no opportunity to stay overnight."
90 Still dealing with Mr Golding's submissions in address, his Honour said this:
"254. The defence argued that there was a vagueness created by the time frames set out in the indictment, the time frames, the various months in which the alleged offence was said it would have occurred. The very fact that those time frames are so wide, Mr Golding's argument is, creates a vagueness and he said for instance if you look at the evidence of (the complainant's father) and the evidence of (the complainant's mother) as to where they say they were at various times, the evidence of where they said they were, in the time frame set out in the indictment was different, and how can he, that is, how can the defence come to answer with any specificity one particular date in the time frame, when that date is not identified with any precision."
91 His Honour concluded his summing up by repeating aspects of the Longman warning. He instructed the jury as follows:
"261. I remind you that in considering the complainant's evidence you must approach it with great caution and that it would be dangerous for you to convict on the complainant's evidence alone unless you were satisfied beyond reasonable doubt that she was both honest and was accurate in respect of the essential elements of each offence.
262. I remind you that in respect of the last offence the Crown argues but it will be a matter for you, that there are two independent supporting pieces of evidence. I remind you that the defence disputes those two independent supporting pieces of evidence."
92 The appellant argued that the last of these directions effectively excluded count 5 from the warning. However, I am not persuaded that that is so on a fair reading of the summing up as a whole.