JJB v Regina

Longman v The Queen (1989) 168 CLR 79 R v Johnston (1998) 45 NSWLR 362 Crampton v The Queen (2000) 206 CLR 161 Doggett v The Queen (2001) 208 CLR 343 R v BWT (2002) 54 NSWLR 241 SJB (2002) 129 A Crim R 572 R v GS [2003] NSWCCA 73 R v WSP [2005] NSWCCA 427 R v DGB (2002) 133 A Crim R 227 CASES CITED: Christophers v The Queen (2000) 23 WAR 106 Crisafio v The Queen (2003) 27 WAR 169 RBK v The Queen [2004] WASCA 216 Angliss v The State of Western Australia [2005] WASCA 162 R v WSP [2005] NSWCCA 427 R v JBV [2002] NSWCCA 212 Dyers v The Queen (2002) 210 CLR 285 R v GS [2003] NSWCCA 73 R v WRC [2002] NSWCCA 210 R v JBV [2002] NSWCCA 212

PARTIES: JJB (App) Regina (Crown/Resp)

COUNSEL: H Dhanji (App) P Barrett (Crown/Resp)

SOLICITORS: S. O'Connor (App) S. Kavanagh (Resp)

IN THE COURT OF CRIMINAL APPEAL 2005/2299

SPIGELMAN CJ KIRBY J HOWIE J

Wednesday 26 April 2006 JJB v REGINA Judgment 1 SPIGELMAN CJ: Subject to the following additional observations I agree with the reasons of Kirby J and to the orders his Honour proposes. 2 His Honour refers to the observations of Deane J and McHugh J in Longman v The Queen (1989) 168 CLR 79 as "the extended Longman direction". This is a convenient shorthand but must no be confused with the Longman warning which has authoritative force. The observations by Deane J and McHugh J are just that - observations. They have never been given authoritative force either from the High Court or from any intermediate court of criminal appeal. 3 Their Honour's observations are based on assumptions about child psychology which are widely held but which are not necessarily well founded. Many judges share a conventional wisdom about human behaviour, which may represent the limitations of their background. This has been shown to be so in sexual assault cases. (See R v Johnston (1998) 45 NSWLR 362 at 367-368.) 4 Legislative intervention was required to overcome the tendency of male judges to treat sexual assault complainants as prone to be unreliable. The observations of Deane J and McHugh J in Longman reflect a similar legal tradition that treated children as unreliable witnesses. In the past both categories of witnesses required corroboration. 5 Jurors may also reflect these widely held assumptions about children, as they may also do about sexual assault complainants. Such prejudices may be reinforced by the profession and the bench in the conduct of a criminal case. (See J A Quas et al "Do Jurors 'Know' What Isn't So about Child Witnesses?" (2005) 29 Law and Human Behaviour 425.) 6 There is a significant debate as to whether expert evidence should be admissible about the ability of children to give accurate evidence, especially in child sexual assault proceedings. See, most recently, Uniform Evidence Laws Report ALRC Report 102, NSWLRC Report 112, VLRC Final Report, December 2005 at 9.138-9.158; Criminal Justice Sexual Offences Task Force Responding to Sexual Assault Final Report, Sydney December 2005 pp165-176. These two recent reports refer to a range of earlier studies and reports. They also outline the legislation that already exists in some jurisdictions to permit such evidence and make recommendations for further legislative intervention. 7 There is a substantial body of psychological research indicating that children, even very young children, give reliable evidence. (See eg the references in Ligertwood Australian Evidence (4th ed) LexisNexis Butterworths, Australia 2004 para 7.31 fn 10 and 11.) These are complex issues, as reflected in reviews of the research on the ability of young children to distinguish fantasy from reality (see J D Woolley "Thinking About Fantasy: Are Children Fundamentally Different Thinkers and Believers from Adults" (1997) 68 Child Development 991; M Taylor "The Role of Creative Control and Culture in Children's Fantasy/Reality Judgments" (1997) 68 Child Development 1015; T Sharon and J D Woolley "Do Monsters Dream? Young Children's Understanding of the Fantasy/Reality Distinction" (2004) 24 British Journal of Developmental Psychology 293 at 294-296). The same is true of research about a child's ability to accurately recall stressful events (see Richard J McNally Remembering Trauma Harvard Uni P, Cambridge Mass 2003 at pp58-62). 8 The complexity of these issues is not reflected in the observations of Deane J and McHugh J in Longman, which should, accordingly, be treated with caution. 9 KIRBY J: JJB ("the appellant") stood trial before Nicholson DCJ and a jury in the District Court at Taree. The indictment may be summarised as follows: Count 1: That between 6.9.87 and 31.12.87 he indecently assaulted the complainant (a child then aged 6 years). (s61E(1) Crimes Act 1900) ("the Act"). Counts 2 & 3: That between 1.6.91 and 30.10.91 he indecently assaulted the complainant, in circumstances of aggravation, namely, she then being less than 16 years (being 10 years). (s61M(1) of the Act). Counts 4 & 5: That between 1.4.92 and 31.12.92 he had sexual intercourse without consent with a person between the age of 10 and 16 years (the complainant then being 10 or 11 years). (s66C(1) of the Act). 10 The charges were based upon the complaint of YM, a woman aged 23 years at the time of trial (born June 1981). She was the niece of the appellant. Her father was the appellant's brother. YM gave no evidence in respect of count 2. His Honour therefore directed a verdict of acquittal in respect of that count. On the remaining counts, the jury returned a verdict of "not guilty" in respect of counts 1 and 3 and "guilty" in respect of counts 4 and 5. The appeal, therefore, is directed to the appellant's conviction in respect of counts 4 and 5. There is no appeal against sentence.

The Notice of Appeal. 11 The Notice of Appeal relies upon one ground, namely: Ground 1 : There was a miscarriage of justice as a result of the learned trial judge's failure to adequately warn the jury of the danger in convicting the appellant in that: (a) the trial judge failed to properly instruct the jury as to the forensic disadvantage suffered by the appellant in his ability to test the evidence as a result of the delay; (b) the trial judge failed to warn the jury of the fragility of youthful recollection and the possibility of the distortion of memory over time; and (c) the jury were not properly warned of the forensic difficulties to the appellant in meeting the Crown case. 12 It is acknowledged that no complaint was made by counsel during the trial. Leave is therefore required (Rule 4 of the Rules under the Criminal Appeal Act 1912). 13 Before dealing with the submissions made on behalf of the appellant, I should refer to the evidence in support of each count.

The alleged offences. 14 The complainant lived in the country with her family. The appellant was an itinerant worker. When the complainant was young, the appellant used to stay with the family overnight from time to time. There were occasions when he would stay for a week, or even months. 15 In respect of count 1, the complainant said that she was in kindergarten and six years old when she changed schools. There was an occasion when, at the new house, there was a barbeque. Having been outside, she entered the house and passed through the kitchen. She saw the appellant sitting at a table in the kitchen. Nobody else was in the room. Her uncle asked her to sit on his lap, which she did. She was wearing pyjamas. He touched her on the thigh and then rubbed her vagina on the outside of her pyjamas. He told her, "nobody has to know". She jumped down and went outside. She said nothing to anyone. She gave as her reason that she was afraid that no-one would believe her. She said she was ashamed that it might have been her fault. 16 Her parents separated in late 1990. Count 3 related to an incident after the separation. The complainant was living with her mother, visiting her father at weekends. She was then ten years old. The appellant came into the bathroom when she was having a bath. He unzipped his trousers and took out his erect penis. He reached for her hand which he placed on his penis. She said that the incident occurred a month or two before the death of a family friend. There was evidence that the friend died on 8 August 1991. Again, she did not tell anyone, providing the same reasons that she gave in respect of the first incident. 17 The next incident occurred a year or so later. Her father moved to a flat in Harrington known as "The Breakers". The complainant and her sister each had their own bedroom. Their father slept on the lounge. She said she woke up one night to find the appellant in bed alongside her. She was wearing a nightgown with underpants. She felt him touching her vagina. He pulled the underpants to one side and inserted his fingers in her vagina (count 4). According to the complainant, the appellant "somehow" then rolled her over and was on top of her. He was naked. By some means he removed her underpants, although she could not remember how that occurred. He inserted his penis in her vagina and moved it back and forth. She started to cry. He put his hand over her mouth and continued having intercourse. He then dressed and left the room (count 5). 18 The complainant said that she then went to the bathroom. She noticed that she was bleeding from the vagina. She had a bath. She said that she had not then commenced menstruation. 19 In cross examination the complainant acknowledged that, at an earlier trial (which had been aborted), she had said that she had a shower. She also acknowledged that she had told the police in 1996, when she first complained, that she did not know whether the appellant was wearing clothes. She said to the police at that time that she started menstruating in Year 5, which was 1992. Her statement of 10 September 1996 was tendered in re-examination. She said in that statement that she had a bath, rather than a shower. 20 The complainant's evidence in respect of counts 1 to 4 was unsupported. There was, however, evidence capable of being regarded as corroboration in respect of count 5, the allegation of penile penetration. Her father gave evidence that, on 1 April 1992, he moved to "The Breakers" with his daughters, including YM. His brother came to the flat and, on a couple of occasions, stayed the night. He eventually barred his brother from the flat for a number of reasons, including drunkenness. 21 When the complainant gave evidence, she said that she thought that after her bath she left the water in the bathtub. Her father recalled an occasion where he saw blood in the bath. He said this: (T60) (17.2.05) "CROWN PROSECUTOR: When you were living at The Breakers Flats did you notice anything out of the ordinary at all in relation to the bathroom? A. Yes I did. Q And what was that? A. Blood in the bottom of the bath. I'd just cleaned my bath totally spotlessly, bathroom spotless and next morning when I got up I went in there and there was water in the bath and blood in the bottom of the bath. Q. Are you able to give us some idea of the quantity of the blood that you saw? A. There was like two little wavy lines about yea long each." 22 The wavy lines were two or three inches long. The complainant's father said he did not ask his daughter whether she had commenced her periods. He added: (T64) "A. (The complainant) was very upset and wanted to go straight to her mother's that morning." 23 When cross examined, the appellant acknowledged that he had not included this detail in his first statement to the police. It was supplied in his second statement, which he made after having read his daughter's statement. 24 A further witness, Gregory James Durant, gave evidence. He had known the appellant since childhood. He used to drink with the appellant and a friend at the local hotel from time to time. Mr Durant recalled an incident "around 1993". He, the appellant and Andrew McPherson were at the Harrington Hotel. They were sharing a drink and playing pool. After about two hours there was an argument. The appellant said, "I've given (the complainant) a head job". He added, according to Mr Durant, that he either "had fucked her" or "he was going to fuck her". Mr Durant said that he grabbed the appellant under the arms. He walked him outside. He then punched him in the head. He swore at him a number of times and then left the hotel. According to Mr Durant, the appellant rang him the following day. He said, "it didn't happen, we were pissed". He "was only joking". However, Mr Durant said that the appellant appeared normal. Mr Durant added that he, personally, did not feel "pissed". 25 It was put to Mr Durant in cross examination that the reason for the fight was that he (Durant) had given the complainant's sister a bottle of bourbon for her fourteenth birthday (T89). Mr Durant denied that suggestion. He agreed that Mr McPherson was about eight feet away when the appellant had made his remarks. 26 Mr Andrew McPherson gave evidence. He recalled being at the hotel with the appellant and Mr Durant. He had not witnessed any altercation between the two of them or "any event leading up to it". He said they were all pretty drunk. He added that he left just before dark. He later learned that there had been a fight.

Flight of the accused. 27 The complainant made a statement to the police on 10 September 1996. Her older sister also made a complaint. The appellant was arrested in Queensland on 24 September 1996. The assertions of the complainant were put to him and were denied. On 26 September 1996, the appellant was committed for trial at the Murwillumbah Local Court. On 30 April 1997, the trial was fixed for 2 June 1997. On 2 June the trial was called on before Solomon DCJ. However, the appellant did not appear. On 4 June 1997, Judge Solomon signed a bench warrant for the arrest of the appellant. 28 The appellant was ultimately arrested in Queensland in November 2004. He was then held in custody pending the trial. On 14 February 2005, he pleaded guilty to the charges arising from the complaint of the complainant's sister. However, he pleaded not guilty to the charges arising from the complaint of YM. The trial in respect of those charges proceeded. On 15 February 2005, the Crown foreshadowed that he wished to place before the jury the chronology culminating in the present charges, including the appellant's failure to appear. The Crown said this: (T1) (15.2.05) "But, your Honour, I submit, the delay between September 1996 and today needs to be explained, and what I'd be seeking to do is to lead evidence of the accused's failure to attend in June 1997 and his arrest in November 2004. I submit that that seven year delay ought to be explained that way. My friend opposes the evidence being put in that fashion." 29 His Honour immediately recognised the implications of this material for the Longman direction (Longman v The Queen (1989) 168 CLR 79) which he would be required to give. He addressed the following question to Mr Golding, an experienced counsel then appearing for the appellant: (T2) "HIS HONOUR: One of the problems, Mr Golding, that arises is that I will be required to direct the jury as to the disadvantages that the accused faces as a consequence of delay; difficulty in establishing alibi evidence, for instance, and the like. Those directions appear to be predicated upon a proposition that the delay was no fault of the accused's. If there is any complaint made about the delay in complaint, one of the consequences is that that brings out also a direction that one of the problems with a delay in complaint is that the accused can be prejudiced as a consequence of the delay, sheeting home, as it were, the injustice of the accused having to face a trial 14 years after the event. It is also one of the reasons why I give a warning about the unsupported evidence of the complainant, that it has caused - that one of the factors is the delay. Those warnings, without some counterbalance for the last seven years, really amount to a free kick for the accused in a situation where he is hardly entitled to it. That is my concern, and if you can address that I might not be as concerned about your position as I otherwise would be." 30 Counsel responded as follows, alluding to count 1 (which was said to have occurred in 1987) and perhaps counts 2 and 3 (which were said to have occurred in 1991): (T2) " ... can I submit that it may be possible to tailor it in a way which accommodates my concerns and sufficiently protects my client's position because the very first of the - in fact I suppose it's fair to say that the first two of the incidents - that's the kindergarten incident and the bathtub incident at Harrington - they had a bit of age on them in any event by the time he was arrested." 31 The following exchange then took place: (T2/3) "HIS HONOUR: As I say, you're entitled to seven years delay but you're not entitled to 14 years delay, and there is a huge difference, particularly bearing in mind - I think I would allow evidence to be led of the committal, that is, that there was a committal in 1996 or whenever it was, because that would allow me to terminate the period of delay, because thereafter it seems to me that you are on notice that you have to defend the matter. GOLDING: I was obliquely trying to get to that direction, your Honour. I was rather fixing on perhaps the time of the arrest and the conversation. The committal is probably a more appropriate and formal point ... that would then give me the benefit of the delay which I'm entitled to warnings about without taking advantage of something which is clearly my fault." 32 His Honour added: (T3) "HIS HONOUR: I mean, clearly he is entitled to the benefit of delay that was not in any way attributable to the accused and he is far less entitled to the benefit of any delay that is attributable at least in part to the accused. I mean, there may be some other mechanism but it seems to me that if you were permitted to lead evidence of the arrest and committal in 1996 -- CROWN PROSECUTOR: That sort of puts an end to the delay period." 33 The discussion ended with an agreement as to how the matter should be dealt with in front of the jury. His Honour said this: (T4) "So if you have the committal and there are denials and you show them to the Crown, either you or he can lead them out of the police officer's mouth and then the jury will think that the committal is significant because it was the administrative thing - and I'll tell them all that. And then we may not even need to go into what happened thereafter. You're simply interested in, as I understand it, getting it affixed that the accused knew from 1996 that he was going to be put on trial." 34 The Crown told his Honour that he did not rely upon the evidence as "flight", demonstrating a consciousness of guilt. He recognised that the appellant's failure to appear in June 1997 could relate to either or both sets of charges which he then faced, namely, those of YM or those of her sister. 35 The first trial was aborted soon after it began. The second trial commenced on Wednesday 16 February 2005. The Crown opened and then called Detective Sergeant Susanne Rode-Saunders. Det Rode-Saunders gave evidence in accordance with the agreement that had been reached. She said that the appellant had been arrested in Queensland, where he had been living, on 24 September 1996. The allegations of YM were put to him and were denied. He was thereafter committed to stand trial on 26 September 1996. Det Sgt Rode-Saunders said that they then "met" the appellant in Brisbane on 26 November 2004 and accompanied him back to New South Wales. His Honour explained to the jury the nature of committal proceedings. The detective was not cross examined.

The Longman warning. 36 The Notice of Appeal, para (a) (forensic disadvantage arising from an inability to test the complainant's evidence) and para (c) (forensic difficulty in the appellant meeting the Crown case) are both aspects of what has been termed the Longman warning. Paragraph (b) (the fragility of youthful recollection) deals with what is sometimes termed "the extended Longman warning", where the incident which forms the basis of the charge is dependant upon the recollection of a child. 37 Before examining his Honour's summing up, it may be useful to be clear about what he was obliged to say in conformity with Longman v The Queen and the cases that have followed. 38 The delay in Longman v The Queen exceeded 24 years. The complainant, a 32 year old woman when she gave evidence, described incidents which took place when she was a six year old child. She said that her stepfather indecently assaulted her. Counsel for the accused asked the trial Judge to warn the jury of the danger of acting upon the uncorroborated evidence of the complainant. He declined to do so and Longman was convicted. However, the Court set aside the convictions and ordered a new trial. Brennan, Dawson and Toohey JJ said this: (Longman v The Queen (supra) at p91) "... 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 at p 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." 39 This passage has become the source of the Longman warning. The message was repeated and reinforced in two cases that followed. In Crampton v The Queen (2000) 206 CLR 161, Gaudron, Gummow and Callinan JJ incorporated into their encapsulation of the test the words "test and meet the evidence of the complainant" (at p181), being the words which appear respectively in paras (a) and (c) of the Notice of Appeal. Their Honours said this: (at 181 para 45) "The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant." 40 They emphasised: (at 181 para 45) "... the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, 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." 41 See also Doggett v The Queen (2001) 208 CLR 343, Gaudron and Callinan JJ at 356, para 51. 42 The High Court, having spoken on three occasions on the same issue, there followed a number of appeals where the warning had not been given, or was given in terms said to have been deficient. In R v BWT (2002) 54 NSWLR 241, Sully J (Wood CJ at CL and Dowd J agreeing) helpfully sought to provide a summary of the principles which had emerged. Where there had been substantial delay, there must be a warning, not simply a comment or a caution. It must be correctly focused and framed. It must identify particular problems which delay may have occasioned to the accused. It must not be simply a repetition of counsel's arguments, but must have the unmistakeable authority of the court (at 273/4). The terms of the warning, Sully J suggested, must cover the following propositions: (at 273) "... 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." 43 The formulation by Sully J has since been adopted in a number of cases (SJB (2002) 129 A Crim R 572; R v GS [2003] NSWCCA 73; R v WSP [2005] NSWCCA 427). However, some courts, and some judges, have seen the need for greater flexibility, when assessing compliance with the Longman requirements, than R v BWT would appear to allow. In R v DGB (2002) 133 A Crim R 227, Howie J (Meagher JA and Simpson J agreeing) said this: (at 234/5 para 30) "In the present case, I am unpersuaded that it was necessary, either as a matter of law or in order to ensure a fair trial to the appellant, that the trial judge use the phrase 'dangerous to convict' in warning the jury as to the approach to be taken when assessing the complainant's evidence. No such warning was sought by an apparently competent defence counsel." 44 The approach in Western Australia has been similar (Christophers v The Queen (2000) 23 WAR 106 at [37]; Crisafio v The Queen (2003) 27 WAR 169 at [1], [20]-[31]; RBK v The Queen [2004] WASCA 216 at [34], [99]; Angliss v The State of Western Australia [2005] WASCA 162 at [15]). In R v WSP [2005] NSWCCA 427, the majority (Sully and Hulme JJ) determined that the warning which had been given (which, amongst other things, failed to use the words "dangerous to convict") did not conform with the requirements of Longman. Spigelman CJ disagreed. He analysed the warning which had been given observing first, that it was a warning and not a comment; secondly, that her Honour had added the authority and weight of the court to her instructions; thirdly, that the trial judge had identified why it was necessary to administer a warning, namely, that delay (between 1989 and 2002) had adversely affected the ability of the accused to defend himself by testing the prosecution evidence or by adducing evidence; fourthly, that her Honour had expressly linked the warning to the task which the jury was required to perform, requiring them to take account of the delay in making the critical assessment about the truthfulness and reliability of the complainant. The Chief Justice added: "[13] It is wrong to treat any judicial statement, even in a judgment of the High Court, as the equivalent of a statutory formula. The issue is whether or not the critical features of the Longman warning were, as a matter of substance, transmitted to the jury. In my opinion they were."

The extended Longman warning. 45 As mentioned, the complainant in Longman was a six year old child when the indecent assaults were said to have taken place. In that context, two judges specifically commented upon the fragility of such evidence. Deane J said this: (at 101) "... The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant's evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinized with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant's guilt." 46 McHugh J made similar observations. He said: (at 107/8) "The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. 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: Hunter, Memory , rev ed (1964), pp 269-270. No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, 'I don't hate him but I do hate what he's done and the problems it's caused in my life'. However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred." 47 Crampton v The Queen (supra) concerned accusations against a primary school teacher who taught at a school for students with learning difficulties. Accusations against him were first made in March 1997 and concerned conduct said to have taken place more than 20 years earlier. The majority, having quoted Deane and McHugh JJ in Longman, said that the trial judge should have drawn these considerations to the attention of the jury (at 181 para 45) (see also R v JBV [2002] NSWCCA 212, per Heydon JA (Hidden J and Blanch AJ agreeing) at para [7]). 48 Against this background, let me turn to the trial and the summing up.

The trial. 49 The trial was short. The accused was arraigned on Wednesday 16 February 2005 and the Crown opened. The trial was then adjourned to the following day (Thursday 17 February 2005) when the complainant and other Crown witnesses were called. The accused did not give evidence, nor call evidence. Counsel addressed on Friday 18 February 2005 and the trial judge began his summing up that day. The summing up was completed the following Monday before lunch. The jury returned its verdict on Tuesday 22 February 2005 at 11.12 am. 50 One should state the obvious lest it be overlooked. The complainant was a young woman aged 23 years when she gave evidence (in 2005). She described an incident that had occurred in 1987 when she was six years old and in kindergarten (count 1). She related events several years later in 1991, when she was about ten (counts 2 and 3). She described the circumstances giving rise to the charges in counts 4 and 5 which were said to have taken place in 1992 when she was 11 years old. Obviously the jury would have known that they were dealing with the recollections of a young child (and a very young child in the case of count 1). That impression was reinforced by counsels' addresses, where she was repeatedly described as "a young child". 51 Counsel for the Crown, trying to anticipate the address of his opponent, adverted to the issue that lies at the heart of the extended Longman warning, that is, that the accusations may have their source in childhood fantasy and distortion. The Crown said this: (T18/19) (18.2.05) "Now I think at one stage during the course of her cross examination it was suggested to her that she might have dreamed about one of these events. I think my friend might have been referring to the incident that occurred at the flats, The Breakers flats. Well you might find that a little bit difficult to cop. You might find it a little bit difficult to accept that she would dream that she felt pain, dream of getting up and going to the bathroom and having a bath, you might find that a little bit difficult to accept. You may say to yourself well look, this is not a question of whether or not someone's dreamed about these things happening, it's a question of whether or not they've told you the truth." 52 Counsel for the accused did not suggest, in terms, that the accusation in counts 4 and 5 were fantasy. Nonetheless, he did deal with the turmoil in the complainant's life after the separation of her parents. He said this: (T38/39) "Sorry there's one other matter, general thing. The question of (the complainant) and her childhood it has probably occurred to you, you don't have to be a child psychologist or a counsellor it is a matter of commonsense we've all been around the block. It must have been awful. Particularly, it was clear that prior to the separation of the parents you might think everything was terrific, but what an awful situation for any young child, and I'm not being critical of either of the parents or (the complainant). It is a fact that happens all the time, and no doubt some of you have experienced it or understand how difficult it is for a young child in a large family to suddenly find themselves, their world torn apart and there's no other way of describing it, it happens and I'm not being critical of anyone, these things happen, but its awful. The sort of stresses and psychological traumas and unspoken fears and terrors that children must experience when they have to go through those sorts of matters particularly when they're asked to chose. Who do you want to live with? I mean what sort of a choice is that to ask a child, and I'm not being critical of the (complainant's family) they were obviously doing the best they could. But just imagine, and using your own commonsense and experience of the world, how that young girl, in fact all of that family would have felt and it is not only that, there's the continual changing of the schools and the changing of their residences. Notwithstanding the best intentions and the best efforts of (the complainant's father), and (the complainant's mother) to continue to nurture and love these children, you can imagine the stresses that those children were involved in, and that's the sort of context if you like, and you won't ignore that, that's (the complainant's) background, that's who she is. And apart from the incident at Hannam Vale that she described in 1987 which I'll come to, these other two incidents occurred in the middle of that she says, in the middle of that turmoil. Now the human condition is an extraordinary thing, I mean that's trite to say that, but you might think it is absolutely unpredictable what a young girl or a young woman for that matter how she would respond to those sorts of circumstances, absolutely unpredictable. This is not a robot we're dealing with, this is (not) somebody who is - we can program and we know what's going to happen from day to day, this is a young girl who is growing up, maturing in that sort of a context. ... You might think that by itself would be a very good reason to examine very carefully and be very sceptical of what she says occurred during that period of her life." 53 Counsel for the accused emphasised in his address the difficulties which delay had created for the accused in meeting the Crown case. He said, for instance, in the context of the first count, the following: (T32/33) "... The real question is how on earth is an accused person to answer a charge if there's absolutely no surrounding detail he can examine. All we've got from the victim is that there was some barbecue at some time during the year, sometime during the day some people were there, she went into the kitchen, there was an indecent assault and she went outside. We don't know what time of the year it was. We don't know whether it was hot or cold. We don't know who was there, and in particular my friend said we expected that I'd say - I would make the submission to you well why would he take an unacceptable risk? Well the fact is we don't know whether there was a risk or not, because there is just no evidence about the circumstances surrounding that allegation, and you might think how on earth is anyone going to challenge that? What can a man do except say, 'I am not guilty'? I mean if there was some circumstance that we could perhaps examine, she mentioned that there were no neighbours, only friends, up to ten or 20 people I think her evidence was. Well you don't know who they were, or more importantly, we don't even know if the time of year that she says it happened, we were even in the district. There's just nothing at all for an accused person, and in this case this man to say, well look that's the fact she says that, I can tell you that that's not the case because I was in Darwin or she says Joe Blow was at the barbecue and he died the week before, or it was really cold, there's nothing." (emphasis added) 54 Counsel, when dealing with counts 4 and 5, being the counts which are the subject of this appeal, again emphasised the absence of detail. He said this: (T37) "... it is not as if (the complainant) has spent, in evidence before you a half an hour describing in detail with myriads of detail the circumstances of the event, there are very few details in the account she has given to you, you might they're extremely bland accounts, the bare minimum you might think." 55 Counsel added: (T37/38) "... the vagueness and the length of time over which the incident is said to have happened between whatever it is, and I don't remember, between April and December or between June and October, or 87 or 91 and 92, you will remember, I don't know whether you've been given a copy of the indictment but you will be reminded of what the terms are, the offences are said to have happened within a period of several months, so many years ago. Now I've already mentioned to you, you might think how unfair that is and the question of the detail you'd expect to enable an accused man to focus on or attach or think about so that he can challenge these accusations, but the evidence is clear that he's an itinerant worker, at the time. He's all over Australia. And (the appellant), perhaps not surprising has got no records of where he was at various times of the year. He doesn't know precisely where he was." 56 The address continued: (T38) "There is a very bald allegation made that on a certain, unspecified night something happened, and that's it. And you might think well that's just simply unfair, how can he? I mean he's not in any position now to say well I know that on September 1 1991, I was down a (mine) shaft at Coober Pedy, that might be a different kettle of fish altogether, we've just got this very vague time span, very vague account of where people were living and very vague account of when the accused was there. And the Crown asks you to put them altogether and accept beyond a reasonable doubt that what (the complainant) said happened, happened." 57 Counsel concluded his address, again emphasising the absence of detail and the difficulty that created for the accused in testing the evidence: (T43) "... There's no way he can really, you might think, it's a matter for you, there's no way he can really test it or challenge it , what can he say, I'm not guilty, he said that to you, and you heard him say that at the beginning of the trial, what more you might think can he possibly say, and I would ask you to consider that that allegation was raised by a young girl, in the condition that I've already described about this, I won't call it dysfunctional, but perhaps less than stable family environment, and you might think that the whole context is something which I could not feel comfortable about. There are just too many problems with the evidence in this case, quite apart from that it's vague for you to feel at all comfortable, let alone be persuaded beyond a reasonable (doubt) that any of these allegations had been proved, and in those circumstances it is I would submit to you that you will return verdicts of not guilty for the remaining counts that are in the indictment. I am confident you will." (emphasis added)

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.

Should leave be given? 93 It is convenient to deal with the Notice of Appeal para (a) (inability to test the complainant's evidence) and para (c) (difficulties in meeting the Crown case) together, both being aspects of the Longman direction. I will then deal with para (b) (fragility of youthful recollection), being a complaint based upon the extended Longman direction. 94 In terms of para (c), his Honour did, I believe, adequately instruct the jury concerning the forensic difficulties which delay occasioned to the appellant in meeting the Crown case. The summing up emphasised that the appellant was an itinerant worker, often absent for long periods. His Honour reminded the jury of the spread of dates in each count and the difficulties that created, for instance, in respect of alibi. His Honour emphasised the delay in complaint. He generously incorporated, as part of the delay, the period between September 1996, when the applicant absconded, and the end of 2004, when he was again taken into custody. He characterised the delay as being variously 12 to 17 years. In the context of an itinerant worker, a jury was likely to regard delay of that magnitude as significant. 95 Moving then to para (a), his Honour did not say, in terms, that delay created difficulties for the appellant in testing the Crown case, including the complainant's evidence. That was an important shortcoming. Every formulation of the Longman direction suggests it is a requirement. The loss of surrounding detail with the lapse of time inevitably makes it more difficult to cross examine the complainant and meet the Crown case (R v WRC [2002] NSWCCA 210 at paras [141] to [143], per Kirby J). Counsel for the appellant suggested that this was a fundamental error, giving rise to the possibility of a miscarriage of justice, such that leave should be given. Two matters were highlighted. First, the disadvantages occasioned to the appellant were actual not simply theoretical. The complainant, when cross examined, simply could not remember many important details (for example, T20 (17.2.05)). She said, in the context of count 5, that "somehow I was rolled over and he was on top of me" (T12). Somehow her underpants were removed, but she could not remember how. She could not remember whether she saw the appellant that evening or the next morning. She thought the appellant was naked in bed, but acknowledged that she told the police in September 1996 that she was not sure whether he was clothed or naked. 96 Secondly, the matter was made worse, according to the appellant, because the jury was told, during the course of the summing up, that witnesses, including the complainant, had been "skilfully" questioned by counsel then appearing at the trial for the appellant (SU para 64). 97 The failure to state that delay had disadvantaged the accused in respect of his ability to test the evidence was an error. However, nothing was said to the trial judge by experienced counsel then appearing for the appellant. The issue arises whether counsel overlooked the matter or deliberately refrained from seeking a redirection for tactical reasons. Where there is forensic advantage in not drawing to the attention of the Court a misdirection to the jury, a miscarriage of justice is less likely. Here, there is no affidavit from counsel. The Court is left to infer whether the matter may have been overlooked or whether there were forensic reasons why counsel chose not to seek redirections on this aspect and the other error identified in para [78] above. 98 Here, most aspects of the Longman warning had been covered. Taking the summing up as a whole, the jury had been told of the difficulties which delay had occasioned to the appellant in meeting the Crown case. They had been warned and, indeed, repeatedly warned in strong terms that it was dangerous to convict on the evidence of the complainant alone. They had been enjoined to scrutinise her evidence with great care, bearing in mind the warning, and directing their attention not only to her truthfulness, but to the accuracy of her testimony. What was missing was a direction that delay had made it difficult to test the complainant's evidence and that such delay had caused actual prejudice, rather than possible prejudice. 99 It is instructive to ask what was likely to have happened had counsel asked for a redirection that corrected each of these shortcomings. Any redirection, in fairness to the Crown, would need to make the distinction between disadvantage arising from delay in making the complaint and delay occasioned by the appellant absconding between September 1996 and late 2004. The distinction had been recognised at the outset of the trial, but overlooked during the summing up. 100 As matters stood, counsel for the accused, in his address, had repeatedly drawn attention to the absence of detail in the complainant's evidence and the difficulties that created for the appellant. His Honour had reminded the jury at some length of these arguments. A reminder of counsel's arguments is obviously not the same as a direction from the judge in the summing up. It lacks the authority of the Court. Counsel, nonetheless, would have been obliged to consider the marginal advantage of a redirection compared to any potential disadvantage, were that redirection given. The potential disadvantage involved cutting down the generous description of delay (12 to 17 and a half years) in circumstances where the jury knew that the appellant was an itinerant worker. Any redirection would need to differentiate between the different counts. There was a significant interval between the alleged incident in count 1 and the complaint (nine years). Counts 4 and 5, on the other hand, involved a delay of only four years before the appellant became aware of the allegations. More than that, counts 4 and 5 were effectively the same transaction. When ultimately sentencing the appellant, his Honour regarded count 4 (digital penetration) as "foreplay" before count 5 (penile penetration). Count 5 was supported by other evidence. It was the most serious offence. 101 Here, I infer that counsel, for sound forensic reasons, chose not to raise the issue (cf R v JBV [2002] NSWCCA 212, per Heydon JA (Hidden J and Blanch AJ agreeing) at para [15]). 102 Nor am I otherwise persuaded that, in the context of counts 4 and 5, which resulted in convictions, that there was a miscarriage of justice. I would refuse leave in respect of the Notice of Appeal para 1(a) and 1(c). 103 Moving to para (b) (the fragility of childhood recollection) Longman, it will be remembered, concerned allegations of indecent assault made more than 20 years after the assaults were said to have occurred. They were allegations dependant upon the uncorroborated recollection of a child then aged six years, who had been woken from her sleep. 104 Here, the circumstances giving rise to counts 4 and 5 involved a young child, about 11 years old, being woken from her sleep. That said, the circumstances were very different. First, she was significantly older than the child in Longman being 11 years. Secondly, the matter had been drawn to the attention of the police and the appellant four years later. Thirdly, counts 4 and 5 were not allegations of indecent assault. The allegation involved conduct which was far more brutal. Count 4 was an assertion of digital penetration and count 5 of penile penetration of a young girl. Finally, the circumstances as described by the complainant do not suggest fantasy. She described a particular sequence which could hardly have had its source in a dream. The complainant said that, after intercourse, she noticed bleeding from the vagina. She then had a bath late at night. She thought she left the bath water in the bath. Her father gave evidence of seeing water in the bath with blood the next morning. More than that, the complainant was upset and wished to see her mother. Apart from that evidence, there was the evidence of the alleged admission by the appellant to Mr Durant, that he had "fucked" the complainant. In conducting the case, the appellant did not suggest fantasy or distortion. It was put simply that the incident did not occur. 105 His Honour, on this aspect, dealt with the case as it had been run. There was no application for an extended Longman warning. I am not persuaded that there was a miscarriage of justice in respect of para (c). I would likewise refuse leave under Rule 4 in respect of that matter. Order. 106 Accordingly, the order I propose is that leave under Rule 4 should be refused and the appeal dismissed. 107 HOWIE J: I agree with Kirby J. **********

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