Longman v The Queen

High Court of Australia|1988-10-21|Before: McHugh JJ, Toohey JJ

The applicant was convicted under s. 183 of The Criminal Code W.A. with unlawfully and indecently dealing with the complainant, a girl then under the age of fourteen years. She was his step-daughter. The first charge alleged that the offence took place on a date unknown between 22 February 1962 and 22 February 1963 when the complainant was about six years old. The second charge alleged that the offence took place on a date unknown between 22 February 1966 and 22 February 1967 when the complainant was about ten years old. No complaint was made in respect of either alleged offence until August 1987, over twenty years after the last alleged offence and over twenty-five years after the first alleged offence. The complainant testified that she had made no complaint to her mother because she "was always afraid of this man" and because her mother "was just very busy and I didn't want to cause my mum any more trouble".

The complainant alleged that the first offence occurred when she was asleep in the cabin of a truck driven by the applicant. She awoke during the journey to discover that he was fondling her in the genital area. She alleged that the second offence occurred when she had gone to sleep in the applicant's bed. She awoke during the night to find that her pyjama pants had been pulled down and that the accused was rubbing or touching her genital area and that "he was manipulating, moving, the labia around and looking very closely and pushing". The complainant alleged that, after some time, the applicant pulled up her pyjama pants, carried her back into her own room, and put her into bed. She also gave evidence of other incidents. She testified that on other occasions during her childhood the applicant "would manipulate my genital area" when teaching her to drive and that when drying her after a bath he would focus on her pubic area. She also testified that, when she was about twelve years of age, the applicant had taken her and her brother to watch a stallion and mare mate. She said that on another occasion when the applicant was working on a piece of equipment he asked her to help. She said that he was wearing shorts and that when he sat down she could see "his genitals hanging out". Her evidence concerning the alleged offences was uncorroborated.

At the trial, counsel for the applicant submitted that the circumstances justified the trial judge giving the jury a warning pursuant to s. 36BE(1)(b). His Honour declined to give the warning. He noted that counsel would be able to comment in his address "in relation to the effluxion of time".

Section 36BE(1)(a) abolished the rule that in sexual cases a judge should warn the jury that, although corroboration is not required as a matter of law, it is unsafe to convict on the uncorroborated testimony of the complainant. This rule became entrenched as a rule of practice soon after the establishment of the Courts of Criminal Appeal in England and Australia. In Hargan v. The King [31] , Isaacs J. said that "the practice is so well established as to have, as was said of the analogous case of accomplices, "almost the reverence of a rule of law" ". However, the rule did not require that the warning take any particular form. In Hargan [32] , Barton J. said that, where the evidence of the complainant was uncorroborated, "the jury should be warned against accepting it unless after the most careful scrutiny". Isaacs J. said that, although corroboration was not strictly essential, it was "necessary to scrutinize with very special care the evidence of the prosecutrix before accepting it so as to condemn the accused" [31] . Rich J. said that there had been "a miscarriage of justice owing to the absence of warning to the jury not to convict on uncorroborated evidence except after carefully weighing the evidence" [33] . However, with the passage of the years, the courts began to express the warning in more emphatic terms.

(1919) 27 C.L.R. 13, at p. 24. 2. (1919) 27 C.L.R., at pp. 19-20. 3. (1919) 27 C.L.R. 13, at p. 24. 4. (1919) 27 C.L.R., at p. 25.

In the course of his influential judgment in Reg. v. Henry; Reg. v. Manning [34] Salmon L.J. said:

What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all. The judge should then go on to tell the jury that, bearing that warning well in mind, they have to look at the particular facts of the particular case and if, having given full weight to the warning, they come to the conclusion that in the particular case the woman or girl without any real doubt is speaking the truth, then the fact that there is no corroboration matters not at all; they are entitled to convict. 1. (1968) 53 Cr. App. R. 150, at pp. 153-154.

The rule that a jury must be warned that it is unsafe to convict on the uncorroborated evidence of a complainant in a sexual case applied irrespective of the gender of the complainant. But its greatest effect was naturally felt in cases of rape and indecent assault on women. Those cases comprised, and still comprise, the great bulk of cases of sexual offences brought before the courts. Moreover, since the judge was required to give the warning irrespective of the particular circumstances of the case, it applied to all uncorroborated complainants. In Reg. v. Hester [35] , Lord Diplock branded the evidence of witnesses whose evidence requires a warning "as "suspect" evidence and the witnesses who give it as "suspect" witnesses". These epithets soon gained currency. In an era more sensitive to stigmatising an individual by reference to the alleged characteristics of a group to which he or she belongs, it was almost inevitable that women would demand the removal of a rule which branded many female complainants as suspect witnesses who gave suspect evidence. As a result, New South Wales, Victoria and South Australia as well as Western Australia have passed laws in terms comparable to those of s. 36BE(1)(a): see the Crimes Act 1900 N.S.W., s. 405C(2); Crimes Act 1958 Vict., s. 62(3); Evidence Act 1929 S.A., s. 34i(5).

While the object of s. 36BE(1)(a) was to abolish the need for a warning of the relevant kind, the words "the judge is not required" show that, but for s. 36BE(1)(b), the trial judge would have an unfettered discretion to give the conventional warning to a jury. Hence, s. 36BE(1)(b) was enacted to fetter the discretion of the trial judge by requiring as a condition precedent a positive finding that "such a warning is justified in the circumstances". Thus, the effect of the two paragraphs is that a judge is no longer required to give a warning that it is unsafe to convict the accused on the uncorroborated evidence of the complainant, and he or she can only give the warning when satisfied that it is justified in the circumstances of the case. But if complainants, as a class, no longer belong to the category of suspect witnesses, how can a judge, under s. 36BE(1)(b), apply the rule whose rationale s. 36BE(1)(a) abolished?

The conventional warning was not based on the circumstances of the particular case. It was based upon the belief that, as a class, uncorroborated complainants in sexual matters were dangerous and unreliable witnesses. It is not easy to apply a rule, whose rationale was based on such a general consideration, to the circumstances of an individual case once the rationale of the rule is abolished. If the two paragraphs of s. 36BE(1) are read literally, the trial judge can only give the warning when he or she is satisfied that the evidence establishes or is capable of establishing that the complainant is a member of a class whose evidence is unsafe to act upon unless corroborated. Yet the hypothesis on which par. (a) was enacted is that the evidence of complainants in sexual cases, as a class, is not unsafe to act upon. Upon what basis then, can the trial judge give the traditional warning? As I have pointed out, the rule was based on experience derived from other cases, not the circumstances of the individual case. Indeed, the jury were always instructed that the circumstances of the individual case afforded a reason for refusing to act on the basis of experience derived from other cases.

Where the complainant has a history of making false allegations, a trial judge might be satisfied that a warning in terms of par. (a) should be given. But, without assuming the existence of the rationale which par. (a) rejects, it is not easy to see what other circumstances would justify the trial judge acting under par. (b) and giving the traditional warning. The legislature may not have intended to abolish the traditional rule. But that seems to be the practical effect of s. 36BE(1)(b).

In the present case, there were no circumstances which would justify the judge in giving the jury the traditional warning. Delay in making the complaints would not justify the giving of that warning.

However, s. 36BE does not prevent the evidence of complainants in sexual cases from being subject to the standard directions which are required to be given in appropriate circumstances in criminal cases: cf. Williams v. The Queen [36] ; Pahuja v. The Queen [37] ; Reg. v. Murray [38] . Cases concerned with the uncorroborated evidence of complainants in sexual cases were perceived as "cases where the evidence suffers from some intrinsic lack of reliability going beyond the mere credibility of a witness": Carr v. The Queen [39] , per Wilson and Dawson JJ. If the evidence of a complainant appears potentially unreliable for a reason other than that he or she is making an uncorroborated allegation of a sexual offence, nothing in s. 36BE prevents the trial judge from warning the jury of the potential unreliability of the evidence of the complainant.

(1987) 26 A. Crim. R. 193. 2. (1987) 30 A. Crim. R. 118. 3. (1987) 11 N.S.W.L.R. 12. 4. (1988) 165 C.L.R. 314, at p. 319.

What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. 1. (1986) 161 C.L.R. 315, at p. 319.

Except in the limited area marked out by s. 36BE(1)(b), complainants in sexual cases no longer fall into a category of witnesses in relation to which the "full warning as to the necessity of corroboration must be given". If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case: Carr [41] .

In the present case both offences are alleged to have commenced when the complainant was asleep. She testified that on each occasion she pretended to remain asleep. She stated that after the incident in the applicant's bed she went back to sleep. She could not remember whether she went back to sleep after the incident in the truck. She was about six years old when she alleges that the first offence occurred, and about ten years old when she alleges that the second offence occurred. The complainant did not allege that penetration occurred or was attempted. Both offences were alleged to have occurred more than twenty years before the hearing.

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.

To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.

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

The failure to give any warning concerning the complainant's evidence means that the conviction must be regarded as unsatisfactory. The construction of s. 36BE and its effect on the giving of a warning in a case where the evidence of a witness may be potentially unreliable are matters of public importance. Special leave to appeal should be granted. Regrettable as it is, the appeal must be allowed, the convictions quashed, and a new trial ordered.

The learned judge imposed a fine of $2,000 in respect of each charge. He did not think that either probation or a bond was required. In all the circumstances of the case, it is arguable that the interests of the public, the complainant, and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide.

High Court of Australia Brennan, Deane, Dawson, Toohey and McHugh JJ. Longman v The Queen [1989] HCA 60

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