Criminal law - Appeal against conviction - Appellant convicted of one count of indecent dealing with a child under 16 and one count of sexual penetration of a child under 16 - Whether the trial judge gave an adequate Longman direction - Whether the terminology used by the trial judge constituted a warning as to the danger of convicting on uncorroborated evidence in circumstances where there was a delay as to complaint, or a comment as to the approach to be taken by the jury when assessing the complainant's uncorroborated evidence

Criminal law - Appeal against conviction - Where significant delay between the time of the offending conduct and the complainant's disclosure of the offences - Whether the trial judge adequately directed the jury that delay in complaint was relevant to the jury's assessment of the veracity of the complainant's evidence

Evidence Act 1906 (WA), s 36A, s 36BD

Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161

Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427

EPD v The State of Western Australia [2011] WASCA 264

FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

MAS v The State of Western Australia [2012] WASCA 36

Osborne v The State of Western Australia [2013] WASCA 106

SPB v The State of Western Australia [2012] WASCA 136

1 The appellant appeals against his conviction in the District Court of Western Australia after trial by judge and jury on one count of indecent dealing with a child under the age of 16, and another count of sexual penetration of a child under the age of 16. Each offence was alleged to have been committed on 8 April 2004 in the course of a single sequence of events. In each case the complainant was the appellant's natural daughter who was 5 years old at the time of the alleged offences. She did not disclose the occurrence of the offences to anybody until 2012. The appellant's trial took place in March 2015. The complainant's testimony was the only direct evidence of the appellant's commission of the alleged offences.

2 The grounds of appeal assert that the directions given by the trial judge for the purpose of giving effect to the principles enunciated in Longman v The Queen[1] and in respect of the delay between the time at which the offences were alleged to have occurred and the matter coming to trial were inadequate. On 3 August 2016, the Court of Appeal ordered that the appeal be allowed, the convictions entered against the appellant be quashed and the appellant be retried on each charge for reasons to be published at a later date. These are those reasons.

3 As the appellant did not give evidence or adduce any other evidence in his defence, the evidence at trial was limited to that adduced by the prosecution and through the cross-examination of prosecution witnesses. That evidence was generally to the following effect.

4 The offences were alleged to have occurred on 8 April 2004, shortly after the appellant and the mother of the complainant and her two sisters had separated. According to the complainant, the offences occurred when the three children visited the appellant's house under the arrangements for child access which had been agreed between the children's parents.

5 The only evidence of the commission of the offences was that given by the complainant, whose evidence was to the effect that both offences occurred when she and the appellant were taking a bath together. According to the complainant, the appellant put his hand on her chest and then penetrated her vagina with his penis by placing her on top of him while he was sitting in the bath. According to the complainant, the penetration was painful and she called for the appellant to stop. Each of the complainant's sisters gave evidence at trial, but neither could recall an occasion upon which the complainant had had a bath with the appellant.

6 Prior to these alleged events there had been occasions upon which the appellant had choked the complainant, and those events had been one of the sources of disharmony in the marital relationship. As a result of those matters, on 23 April 2004 the complainant was interviewed by police from the Child Abuse Investigation Unit. The interview was not electronically recorded, but the police officer took notes of the interview at the time, and although she was unable to recall the interview at the time of trial, she confirmed the accuracy of her notes. According to those notes, while the complainant did refer to occasions upon which she had been choked by the appellant, including on 8 April 2004, the complainant made no reference to the alleged offences which she later asserted had occurred about two weeks prior to her interview by police.

7 On about 27 September 2004, the complainant spoke to Mr Stephen Cohen, a psychologist. She could not recall telling Mr Cohen about the alleged offences,[2] and it is a fair inference that she did not, given that no action was taken at that time.

8 In October 2004, the Department of Child Protection undertook an investigation in relation to abuse relating to the complainant.[3] At trial it was common ground that no charges were brought against the appellant as a result of that investigation.

9 In late 2004, perhaps early 2005, the complainant received an award of criminal injuries compensation as a result of the appellant's conduct.[4]

10 On 21 June 2005, the complainant was examined by a doctor at Princess Margaret Hospital who observed an injury to the complainant's labia majora consistent with the history given by the complainant of having suffered an injury while riding a horse 10 days earlier.

11 The evidence suggested that the complainant's mother had taken the complainant to Princess Margaret Hospital twice for medical assessment, although the evidence did not establish the dates upon which those assessments took place. It was common ground that no charges were laid against the appellant as a consequence of those assessments.

12 In 2006, the complainant told her mother that the appellant had touched her and made her bleed.[5] The complainant also told her mother on that occasion that the appellant used to come into her room at night.[6] No charges were ever brought against the appellant in respect of offences alleged to have occurred in the complainant's bedroom at night.

13 According to the complainant, her memory of the alleged offences came back through a series of flash-backs which she experienced over time.

14 Although neither the complainant nor her mother were able to identify the precise time at which the complainant became aware that the appellant had been convicted of sexual offences committed against two of her female cousins, the complainant was aware of those matters before she was interviewed by police in relation to the matters the subject of this appeal in October 2012.[7]

15 The complainant and her mother each gave evidence to the effect that they had a lot of conversations regarding the appellant's conduct during which the complainant tried to clarify things for herself, although the evidence did not establish the time at which or the period over which those conversations took place.[8]

16 Around 9 December 2011, the complainant spoke with Ms Lynette Hill, a Family Court child expert. She did not disclose the offences allegedly committed by her father to Ms Hill.[9]

17 On 24 September 2012, the complainant stated to her mother that the appellant had raped her on the same day that he had choked her.[10]

18 On 29 October 2012, the complainant participated in a recorded interview with police in which she asserted that the appellant had committed the offences the subject of the charges brought against him.

19 The evidence concluded at around midday on the third day of trial. After the luncheon adjournment, counsel for the prosecution and defence addressed the jury between approximately 1.00 pm and 3.00 pm. The court then adjourned, and the following morning the judge directed the jury between about 10.00 am and 11.45 am, after which the jury deliberated until verdicts were delivered at approximately 3.30 pm that afternoon.

20 As is customary, the judge commenced his charge by directing the jury that their responsibility was to apply the law as he explained it to them and to decide the facts of the case. In that context, he provided a short outline of the course which his directions would follow, stating he would conclude with 'three specific directions of law which apply to certain aspects of the evidence'.[11]

21 A little later the judge reiterated his opening remarks when he observed:[12]

As I have said, my duty is to inform you of the law. It is your duty to apply the law as I explain it to you to the facts as you find them. You must follow what I say about the law.

22 On a number of occasions the judge directed the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that the complainant gave truthful and reliable evidence with respect to the count which they were considering, as she was the only witness giving evidence of the occurrence of those events. In that context, the judge directed the jury that they should take into account a number of matters when evaluating her evidence, including the nature of her relationship with the appellant; the fact that at the time of the alleged offences she was only five; that her parents had recently separated, perhaps as a consequence of the appellant choking the complainant the day before the family separated; and that the appellant again allegedly choked the complainant on the day on which the sexual offences were said to have been committed.[13] After suggesting that the jury 'should also obviously take into account the passage of time', the judge foreshadowed saying something more about some aspects of these matters in the course of his legal directions.[14]

23 The trial judge summarised for the jury the cases presented by each of the prosecution and the defence. In that context he summarised some of the submissions put by defence counsel with respect to the significance of the delay between the time of the alleged offences and the time at which the complainant disclosed those offences to her mother and others; but, of course, those portions of the trial judge's directions were not given the imprimatur of the judge's office.

24 Towards the conclusion of his directions the judge came to the three specific directions of law which he had earlier foreshadowed. The first related to delay. The direction given by the trial judge on that topic was in the following terms:[15]

I'm now going to give you three specific directions of law. The first concerns the issue of delay. You will appreciate that the complainant was effectively asked as to why she made no immediate complaint to people whom you might expect her to have complained in the circumstances, for example her mother or some of the counsellors that she was speaking to at the relevant time.

Or for example, on 23 April 2004 when she was interviewed by Detective Sergeant Fowler and her colleague and complained of the choking incident on that occasion, or why she did not speak in 2006, or why she did not speak to her mother earlier than she did in September 2012 about the allegations. You know that the first formal statement by her was when she was interviewed on 29 October 2012.

Members of the jury, the inference in that line of questioning is that the events did not, in truth, happen, because if they had happened then she would have complained immediately, or at all events sooner than she did.

These questions were proper, and the answers to them need to be considered by you in assessing the credibility of the complainant. In effect, counsel for the accused has submitted to you that it is inherently unlikely that she would have failed to make immediate complaint if these things had happened to her.

Members of the jury, delay is a relevant matter. It is something for you to consider and it is for you to weigh its significance. But I must point out to you that absence of complaint or delay in making a complaint that one has been inappropriately touched does not necessarily indicate that the matters complained of did not happen. A person such as the complainant might have good reasons for not complaining. Bearing that in mind, it is for you to determine what degree of significance to give to the delay in complaining.

You have heard the complainant's explanations for the delay and you have seen her give those explanations. For example, she said that she was only as a result of flashbacks in a position to recount her memory of what had happened to her. You also know that she was only aged five and a half at the relevant time. She said that she started to get flashbacks as she got older, and presumably as she got older she also understood what had happened to her.

Members of the jury, it is a matter for you to judge, but, as I have told you, the absence of complaint or delay in complaining does not necessarily mean that the allegation that the offence - committed is false. As I have said, there may be good reasons why the victim of such an offence such as those alleged may hesitate in making, or may refrain from making, a complaint.

In this regard you may wish to take into account in your deliberations the context and circumstances as they existed, in particular for the complainant, including the fact that she was subject at this stage, at a young age, to physical violence from her father, [the] fact that the family separated in 2004, the fact that the alleged events happened on an unsupervised access shortly after the family unit had separated, and the other evidence in relation to the behaviours exhibited by the complainant from time to time; for example, hiding under beds and looking behind doors, and the fact that the complainant said that the accused had told her not to tell her mother that he had a bath and that she did not tell her mother some secrets.

I'll just rephrase that last - there is evidence that the mother said that the complainant said that she was told not to tell secrets or that she had secrets of hers which existed between her and the accused.

Members of the jury, the fact that a complaint has been made, of course, is not to be taken as independent or separate evidence of the truth of the complaint. You may have regard to the delay with respect to the issue of complaint in the manner I have indicated, bearing in mind that, as I have told you, the absence of complaint or delay in complaint does not necessarily mean of itself that the matters complained of did not happen.

25 The second topic on which specific directions were given by the judge concerned the use which could be made of the appellant's prior convictions for sexual offences against others. There is no issue raised in this appeal with respect to the adequacy of those directions.

26 The third of the specific directions given by the trial judge was obviously an attempt to satisfy the obligations imposed by the decision of the High Court in Longman and other subsequent cases. The direction was given in the following terms:[16]

Members of the jury, the final direction I wish to give to you is again a direction of law which is necessary in every case like this one where there has been a delay in time between when the events the subject of the charges are said to have occurred, in 2004, and when the accused was first made aware of the allegations in 2012 by police.

The State asks you to accept the complainant as a witness of truth. She is, of course, the only witness against the accused as to the happening of the events alleged in the indictment. Whilst there has been other evidence as to occasion and opportunity, no one has confirmed or corroborated the complainant's evidence as to the offences themselves because on the complainant's evidence they occurred when she was in the bathroom with her father alone.

Therefore, as I have already told you, the position is that you must be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of the complainant's evidence before you could convict the accused of either charge on the indictment.

Because of the crucial nature of the complainant's evidence in this case, and because of the seriousness of the allegations, you should scrutinise her evidence with special care. You should take into account that these alleged events occurred some 10 years ago. They are allegations of serious sexual crimes. No complaint was made at the time when the complainant was aged five and a half.

The complainant was a young girl at the time of her first memory of the alleged sexual abuse by her father. She has explained to you how she began to get flashbacks of what happened, which she attributes to not understanding as a five-year-old what, in fact, had happened or been done to her at the time.

The human memory is fallible. The longer the delay, the more opportunity there is for error and that is particularly for events occurring in childhood.

It is a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. This can be so even if you are mistaken in your recollection. In this regard, when you're assessing the evidence, you should bear in mind all of the circumstances and factors that might have an impact on the reliability of the evidence of the complainant.

You should consider the circumstances of the complainant generally including the age that she was at the time and the circumstances of her family being separated at the time. As I have said, the human memory is fallible and honest witnesses can be wrong in their recollection. You should also, members of the jury, bear in mind that because of the delay, the evidence of the complainant in some respects cannot be adequately tested.

By reason of the delay, the accused has lost the opportunity to bring forward some matters of defence that may or might have existed in order to test the evidence of the complainant and has, to that extent, been forensically disadvantaged.

By disadvantage, I suggest to you one of the ways of testing the complainant's evidence is often by reference to the surrounding circumstances and to details. While not necessarily being significant themselves, they may help to indicate whether the complainant's evidence is truthful, reliable and accurate.

In this case, as Ms Boston said, there is no evidence from the sisters that the complainant had a bath on 8 April 2014 [sic], but for the passage of time, that might have been tested with those witnesses. So members of the jury, the passage of time is a factor in people's recollection of events and memory and recollection often dims with the passage of time.

This is a specific issue which you should consider in your deliberations when addressing the issue of the truthfulness, reliability and accuracy of the complainant's recollection and whether or not you can be satisfied beyond reasonable doubt on her evidence of the matters, the subject of the counts on the indictment.

This direction of law which I am giving you is based on the experience of the courts as a result of the difficulty of accused persons in cases such as this. Therefore because of the delay, it is particularly important that you do scrutinise the evidence of the complainant with special care.

Having done that, if you accept the evidence of the complainant as being truthful and reliable, then you can of course, subject to your consideration of the whole of the evidence, convict the accused.

So members of the jury, the question of delay is part of your deliberations and must be approached bearing in mind what I have just said. The ultimate position is and always is, with respect to each count on the indictment that you are considering, are you satisfied beyond reasonable doubt of the guilt of the accused based on the evidence which you accept.

27 After the judge completed his directions, in the absence of the jury he advised counsel that he had noticed that he did not go to his notes of the evidence that had been given with respect to the issue of complaint, and invited counsel to provide submissions as to whether the directions he had given were adequate. In that context defence counsel submitted that the directions that had been given in relation to the complaint were clear, and need not be augmented by specific reference to the evidence given by the complainant's mother to the effect that the complainant had told her that the appellant had touched her and caused her to bleed. Defence counsel did not request the judge to augment or amend the directions which he gave in any way.

28 There are two grounds of appeal, the second having been added by amendment during the course of oral argument at the hearing of the appeal. Those grounds are:

1. The learned trial judge erred in law by failing to give an adequate Longman warning in all of the circumstances.

(a) the learned trial judge failed to articulate to the jury in clear and unmistakeable terms the risk of a miscarriage of justice if uncorroborated testimony forms the only basis of conviction;

(b) the warning was not adequately crafted by reference to the facts and circumstances of the particular case; and

(c) the material parts of the content of the direction were expressed to be, or would have been understood to have been advisory, and not mandatory.

1. The learned trial judge erred in law by failing to give adequate directions with respect to the significance of the delay between the time at which the alleged offences were committed, and the complainant's disclosure of the alleged offences.

29 There have been many appeals to this court on the ground of alleged inadequacy of a direction given in order to comply with the principles enunciated in Longman. In those cases, various members of this court have summarised and reformulated the principles which they take from that case, and subsequent decisions, in slightly different terms and with different emphasis, depending upon the particular circumstances of the case before the court. In this case, I do not consider that any particular purpose would be served by reviewing the various observations made in the many cases in which these principles have been considered by this court. Rather, it is sufficient, in the circumstances of this case, to go only to the source of those principles - the Longman decision itself, and the later review of those principles in Crampton v The Queen.[17]

30 In Longman the accused was convicted on two counts of indecently dealing with his stepdaughter who was 6 years of age when the first alleged offence occurred, and 10 years of age at the time of the second alleged offence. The complainant's evidence was not corroborated and the trial occurred more than 20 years after the alleged commission of the second offence. All members of the High Court considered the directions given by the trial judge to be inadequate, although the reasons for their inadequacy were expressed in differing terms. The plurality[18] expressed their view in the following terms:[19]

[T]here 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 ... 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 [sic] recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay ... 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.

31 Deane J expressed his views in rather more general terms when he observed:[20]

A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury.

32 McHugh J also expressed his view in rather broader terms than those used by the plurality. He observed:[21]

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.

33 The issues were revisited by the High Court in Crampton. In that case, the appellant, a primary school teacher, was charged with five offences allegedly committed in 1978 as a result of complaints first made by two of his former pupils in 1997. Following a trial by jury, the appellant was convicted of one count of committing an act of indecency with another male person. Although the High Court was divided on a constitutional question of no relevance to this case, all seven members of the court considered that the directions given by the trial judge did not adequately reflect the principles enunciated in Longman.

34 The plurality[22] drew attention to the differing terms of the observations made by the members of the court in Longman which I have set out above. In that context, their Honours went on to observe:[23]

There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result. (footnotes omitted)

35 After referring to the particular deficiencies in the direction given in the case, the plurality expressed their view of the principles involved in the following terms:[24]

... 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. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion.

36 McHugh J agreed with the plurality in relation to the inadequacy of the Longman direction.[25] Although Gleeson CJ agreed that the directions given by the judge in Crampton did not comply with the requirements enunciated in Longman, he gave no reasons for that conclusion.[26]

37 In his reasons for concluding that the Longman direction was inadequate, Kirby J drew attention to the distinction drawn in Longman between comment and a warning - the latter being imperative, in the sense of obligatory, in circumstances of long delay.[27] He described the distinction in these terms:[28]

Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser.

38 In the view of Kirby J, the decision in Longman:[29]

... obliges trial judges, in cases such as the present, not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial.

The warning required by Longman must be, in the words of the joint reasons in this case, 'unmistakable and firm'. It must be related to the evidence and derived from forensic experience.

...

The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms. (footnotes omitted)

39 Hayne J also drew a distinction between judicial comment and a warning. He described the warning required by Longman as:[30]

... a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

Because the trial judge had not given a warning in those terms, Hayne J considered the direction to have been inadequate, resulting in a miscarriage of justice.

Was the Longman direction adequate in this case?

40 It is necessary to now apply these principles to the assessment of whether the direction given by the trial judge in this case was adequate. It should be noted that it was common ground, both at trial and on appeal, that the circumstances of the case necessitated an adequate Longman direction, given the long delay between the alleged offences and the trial, and the fact that the prosecution case relied entirely upon the uncorroborated testimony of the complainant.

41 I have set out above the particulars given to this ground of appeal, which identify the respects in which the direction given is said to be inadequate. The propositions embodied in those particulars were augmented in the course of oral argument by counsel for the appellant, who submitted that:

(a) the judge failed to direct the jury that it was the combination of the long delay and the fact that the testimony of the complainant was not corroborated which gave rise to the danger recognised in Longman;[31]

(b) the terminology used by the judge would have conveyed to the jury that he was commenting upon the way in which they should approach their assessment of the complainant's evidence, rather than warning the jury as to the danger of convicting in reliance upon that uncorroborated evidence unless completely satisfied of its veracity. In support of this submission, counsel placed particular emphasis upon the judge's repeated use of the word 'should' rather than appropriately imperative language such as 'must'; and his characterisation of the scrutiny of the complainant's evidence as being 'particularly important' - again suggesting to the jury that the judge was commenting on the way in which they might approach the evidence, rather than warning them of the danger identified in Longman;[32]

(c) the thrust of the judge's direction was to the effect that the jury should scrutinise the evidence of the complainant with special care, rather than to warn the jury that, in the experience of the courts, it was dangerous or unsafe to convict unless completely satisfied of the veracity of the uncorroborated testimony;[33]

(d) although the judge gave one example of forensic disadvantage suffered by the appellant as a result of delay, there was another to which attention should have been drawn - namely, the inability to lead evidence with respect to the size of the bath, which, if led, may have been relevant to the jury's assessment of the likelihood of the events described by the complainant occurring in the bath;[34]

(e) in the particular circumstances of this case, it was necessary for the judge to give detailed directions to the jury with respect to the specific matters associated with the long delay which might cast doubt upon the veracity of the complainant's evidence.[35]

42 The proposition embodied in the last submission was said to be derived from the observation of the plurality in Crampton to the effect that, in the circumstances of that case, the additional considerations mentioned by Deane and McHugh JJ in Longman should have been included within the direction given, being such things as the fragility of youthful recollection, the absence of timely complaint and the possibility of distortion. As a result of questions put from the bench, against the contingency that this proposition may not be accepted, counsel for the appellant moved to amend the grounds of appeal by adding an additional ground to the effect that the directions given by the judge with respect to delay were inadequate, irrespective of whether or not they had to be included as part of the Longman direction given. I will turn to that additional ground in due course.

43 As the submissions developed by counsel in oral argument incorporate the propositions embodied in the particulars to the ground of appeal, it is sufficient to deal with each of the five propositions I have set out above, which I will address in the order in which they were presented.

The connection between delay and the fact that the complainant's testimony is uncorroborated

44 The direction given by the judge did draw a connection between the fact that the prosecution case depended entirely upon the uncorroborated testimony of the complainant and the forensic disadvantage experienced by the appellant as a consequence of delay. The first part of the direction reiterated statements made by the judge on at least two occasions earlier in his charge to the effect that the jury could not convict unless they were satisfied that the complainant had given truthful and reliable evidence. He then directed the jury that when they were assessing the complainant's evidence, they should take into account various matters associated with the consequences of the delay between the occurrence of the alleged events and the trial, including the forensic disadvantages suffered by the appellant as a consequence of that delay. The connection between the fact that the prosecution relied entirely upon the uncorroborated testimony of the complainant, and the significance of delay in the assessment of that evidence would have been apparent to the jury from the direction given.

45 In the course of the Longman direction, the judge directed the jury as to the approach which they 'should' take on six separate occasions. He used the imperative expression 'must' in the last paragraph of the direction he gave, but only in respect of the matters which the jury was required to 'bear in mind' when they 'approached' the issue of delay. At another point in the course of the direction, the judge used the word 'suggest' to describe one of the ways in which the complainant's evidence might have been tested. At another point the judge directed the jury that it was 'particularly important' that they scrutinise the evidence of the complainant with special care because of the delay.

46 The respondent submitted that the terminology used by the judge in the Longman direction should be assessed in the context of the charge as a whole, in which he had clearly told the jury that he was giving them a direction of law which they were obliged to apply. That proposition is undoubtedly correct. However, the critical issue is not whether the jury understood that they were obliged to apply the propositions developed by the judge, but rather, the nature and tenor of those propositions, and in particular, whether they conveyed in 'unmistakeable and firm' terms that, as a matter of law, based upon the long experience of the courts they were obliged to take into account the danger of convicting in a case such as this.

47 The terminology used by the judge considered in combination compels the conclusion that the direction which he gave is properly characterised as a comment to the jury on the approach which they should take to the evaluation of the veracity of the complainant's evidence having regard to the long delay. Although it is clear that no particular verbal formulation or terminology is required in order to give an adequate Longman direction, it is equally clear that the language used must convey the warning in 'unmistakeable and firm' or 'clear and emphatic' terms, given with the weight of the judge's office. It must convey the long experience of the courts that the impact of delay on the forensic process makes it dangerous or unsafe to convict on the uncorroborated testimony of a complainant unless the jury is completely satisfied of the veracity of that evidence, evaluated with an appreciation of the forensic disadvantages suffered by an accused where the trial occurs many years after the alleged offences. There are no words in the direction given by the judge in this case which would have conveyed to the jury that they were being warned of the risks involved in convicting in the circumstances of the case before them. Rather, viewed as a whole, the direction would have conveyed to the jury that the judge was suggesting to them that they needed to take special care in evaluating the evidence of the complainant because of the long delay. It follows that the direction given was inadequate and did not fulfil the obligation imposed by the decision in Longman.

48 The respondent has drawn attention to the fact that experienced counsel representing the appellant at trial took no objection to the directions given by the judge, and did not request that he augment the Longman direction in any way. While the stance taken by the counsel at trial may shed light on the meaning that might have been conveyed by a direction in the context of the issues agitated at trial, or upon the significance attached to a particular issue at trial if the directions given to the jury with respect to a significant issue are clearly deficient, the consequences of misdirection are not averted by the failure of trial counsel to raise the point. In my view, this is so in this case.

The need for special care is not the same as warning of the risk or danger in convicting

49 Essentially for the reasons given immediately above, I accept the appellant's submission that the thrust of the direction given by the judge was a comment to the jury to the effect that they should take special care in assessing the complainant's evidence because it was uncorroborated and because of the long delay. Such a direction falls short of, and is different in character to, the direction required by the decision in Longman, which requires the judge to warn the jury of the risks or dangers of convicting in such circumstances. As I have noted, there are no words in the direction given by the trial judge which conveyed that proposition to the jury. It follows that the direction was also deficient in this respect.

The need for examples of the forensic disadvantage caused by delay

50 The cases establish that a Longman direction must be tailored to the specific circumstances of the case, and thus it will usually be necessary for a judge to give examples of the way in which delay has impeded the ability of the accused to test the complainant's evidence and to advance a positive defence. However, the cases do not establish that the examples given in the course of such a direction have to be exhaustive.[36] In the course of his direction, the judge gave one example to the jury of the forensic disadvantage suffered by the appellant, namely, his inability to adduce evidence from the complainant's siblings as to whether or not the complainant had a bath on the day in question. During her address, counsel for the appellant had drawn the jury's attention to the forensic disadvantage suffered by reason of the appellant's inability to lead evidence with respect to the size of the bath, and in my view it was unnecessary for the judge to exhaustively identify each and every potential aspect of the forensic disadvantage experienced.

The impact of delay on the reliability of the complainant's testimony

51 As I have noted, counsel for the appellant submitted that the observations of the plurality in Crampton, drawing upon the decisions of Deane and McHugh JJ in Longman, obliged the judge to give detailed directions with respect to the relationship between the long delay and the reliability of the complainant's evidence. In her written submissions, counsel for the appellant identified eleven matters which she submitted the judge was obliged to bring to the jury's attention as matters which reduced the reliability of the complainant's evidence. Essentially those were the various matters which took place between the occurrence of the alleged offence and the recorded interview of the complainant by police in October 2012 which I have set out above in my summary of the evidence. Those matters included the complainant's failure to complain of the offences to police when interviewed in April 2004; the complainant's failure to mention the offences when counselled by Mr Cohen in September 2004; the fact that no charges were laid as a result of the investigation conducted by the Department of Child Protection in October 2004; the fact that no charges were brought against the appellant after the complainant had been taken to Princess Margaret Hospital for assessment on a number of occasions; the fact that the complainant received a criminal injuries compensation award in late 2004 or early 2005 which did not relate to the offences which the complainant later said had by then been committed; the fact that no charges were brought against the appellant in respect of the complaints made by the complainant to her mother in 2006; the prospect that the complainant's evidence may have been distorted by the conversations which she had with her mother; the complainant's awareness of the appellant's convictions for sexual offences committed against other members of her family prior to her interview with police; the failure of the complainant to mention the offences when assessed by the Family Court child expert, Ms Hill, in December 2011; and the complainant's failure to disclose the offences to anyone until she made disclosure to her mother in September 2012.

52 The observations made by the plurality in Crampton, and those made by Deane and McHugh JJ in Longman, do not support the contention that a Longman direction must include a detailed review of all the matters, facts or circumstances which could impact upon the reliability of a complainant's evidence. At their highest, those observations support the proposition that in the circumstances of a particular case, the obligation to ensure a fair trial might require a judge to refer to a number of considerations which might affect the risk of convicting on the basis of uncorroborated testimony given after a period of long delay, including such things as the fragility of youthful recollection, the lack of a timely complaint and the possibility that the evidence given may have been distorted by supervening events. In this case the judge made specific reference to the first two of those matters in the course of his direction, and the jury would have been well aware of the possibility that the complainant's evidence may have been influenced by supervening events given the extensive cross-examination of both the complainant and her mother with respect to those matters by counsel for the accused. If a judge was obliged to include a detailed review of all the evidence bearing upon the assessment of the credibility of the evidence given by a complainant as part of a Longman direction, there is a real danger that the thrust of the direction would be lost in that detail. As the recognition of such an obligation is not compelled by the cases to which I have referred, I would reject this aspect of the appellant's case.

53 Nevertheless, because I have concluded that the direction given by the judge was a comment, rather than a warning, and failed to convey to the jury the dangers or risks of convicting on the basis of uncorroborated testimony given after a period of long delay, the direction given was inadequate. It must therefore be concluded that there was a miscarriage of justice, the appeal should be allowed, the appellant's convictions set aside, and a retrial ordered.

54 Having regard to the conclusion I have reached in relation to ground 1, it is unnecessary to deal at length with ground 2 which, as I have noted, was added by counsel for the appellant out of an abundance of caution against the contingency that ground 1 failed.

55 Crofts v The Queen[37] establishes that, notwithstanding provisions like s 36BD of the Evidence Act 1906 (WA), it is appropriate for a judge to draw the attention of the jury to the fact that substantial delay in making a complaint can be considered in their assessment of the veracity of the complainant's evidence. However, such a direction is given in the form of a comment, rather than as a warning.[38] So, in a case such as this, which involves the trial of the appellant for sexual offences within the meaning given to that term by s 36A of the Evidence Act, the trial judge can and usually should invite the jury to consider lengthy delay in their assessment of the veracity of the complainant's evidence, but must also warn the jury that delay in complaining does not necessarily indicate that the allegations made by the complainant are false and inform the jury that there may be good reasons why the victim of an offence such as that alleged may hesitate in making complaint.[39] That is precisely the course taken by the judge in this case in that part of his direction relating to delay which I have set out above.

56 The argument advanced by the appellant in support of ground 2 comes down to the proposition that the trial judge erred by specifically referring to some but not all of the eleven matters identified by the appellant as relevant to the assessment of the veracity of the complainant's evidence, and which occurred over the substantial period between the occurrence of the alleged offences and the complainant's interview with police in October 2012. However, no authority has been cited in support of the proposition that the failure of a judge to refer exhaustively to each and every matter which may bear upon an issue which the jury must assess constitutes error or gives rise to a miscarriage of justice. While it may be accepted that the overriding obligation of a trial judge to ensure that the trial process is fair requires the provision of balanced and informative directions to the jury which enable them to assess the questions which they must determine, that general obligation does not give rise to a specific obligation to exhaustively identify each and every fact, matter and circumstance that may be relevant to a particular issue in the case.

57 In this case, the evidence was taken in less than three days, and counsel addressed the jury on the third day. No doubt the evidence and the issues raised by counsel in relation to that evidence would have been fresh in the mind of the jury when the judge directed them at the commencement of the fourth day. It is not contended that the judge's

summary of the arguments advanced by the prosecution or the defence in the course of his directions to the jury was unfair or unbalanced. Understandably, the thrust of the address given by each counsel focused upon the jury's assessment of the veracity of the complainant's evidence and included reference to the various matters to which the appellant has drawn attention in support of this ground. In a case such as this, where the trial was relatively brief and all such matters had been put before the jury for their consideration, there is nothing in Crofts or any other relevant authority which would support the proposition that the judge was obliged to specifically enumerate and identify each and every matter that might have been relevant to the assessment of the veracity of the complainant's evidence by the jury. Ground 2 of the appeal should be dismissed.

58 For the reasons I have given, ground 1 of this appeal should be upheld, the appeal allowed, the appellant's convictions quashed and a retrial ordered. Ground 2 should be dismissed.

59 MAZZA JA: On 3 August 2016, I joined with the other members of the court in allowing this appeal, quashing the convictions and ordering the appellant to be retried on each charge. I have read in draft the reasons of the Chief Justice and Mitchell JA. All of the background is contained in the Chief Justice's reasons and does not need to be repeated except insofar as is necessary to explain what now follows.

60 With respect to ground 1, I respectfully agree with the reasons of Mitchell JA.

61 Ground 2 has no merit. The learned trial judge's directions as to delay in making a complaint are set out at [24] of the Chief Justice's reasons. The relevant law with respect to directions of this kind was analysed by Wheeler JA in FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 [72] - [95]. Her Honour encapsulated her analysis in this way:

For the reasons given above, I would understand Crofts as saying no more than that a trial judge's direction, where a case involves a delay in complaining in respect of offences of a sexual nature, must make it clear to the jury that the jury is permitted to consider whether that failure casts doubt upon the complainant's credibility. Of course, the statutory direction required by s 36BD must always be given [94].

62 His Honour's directions in this case complied with this statement, including the requirement in s 36BD of the Evidence Act 1906 (WA). His Honour explained:

(a) delay in making a complaint was a matter relevant to the jury's assessment of the complainant's credibility;

(b) delay in making a complaint does not necessarily mean that the complaint is false; and

(c) there may be good reasons why a victim of an offence such as that alleged may hesitate in making or refrain from making a complaint.

63 The appellant's submissions on ground 2 boil down to a complaint that the jury were not reminded of each matter which was said to be relevant to the question of delay in making a complaint. This argument must be rejected for the reasons given by the Chief Justice, with which I respectfully agree.

64 MITCHELL JA: The background to this appeal, the grounds of appeal and the trial judge's direction are set out in Martin CJ's reasons. For the following reasons, I agree that the appeal should be allowed on the ground that the trial judge gave an inadequate Longman warning in all the circumstances. I also agree with Martin CJ that ground 2 should be dismissed for the reasons he gives.

65 The appellant's first particular to ground 1 is that the trial judge failed to articulate to the jury in clear and unmistakable terms the risk of a miscarriage of justice if uncorroborated testimony formed the only basis for conviction.

66 The warning contemplated by the decisions of the High Court in Longman and Crampton is a warning that it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence.[40] However, as has been recognised by a number of decisions of this court, no particular form of words is required in every case, and the sufficiency of a Longman direction does not depend on the use of the word 'dangerous'.[41] Rather, as this court recognised in MAS:

[t]he question is whether the direction given, read as a whole, conveyed, with appropriate emphasis, the forensic disadvantage suffered by the appellant, and the risk of a miscarriage of justice arising from that prejudice, particularly if the uncorroborated testimony of the complainant provided the only basis for conviction, notwithstanding that the trial judge failed to use the expression 'dangerous to convict' [29].

67 The direction in this case did convey the forensic disadvantage suffered by the appellant in the circumstances of this case. I agree with Martin CJ's reasons for reaching that conclusion in considering the second particular to ground 1. The trial judge spoke of the delay and the forensic disadvantage to which it put the appellant.

68 However, the direction failed to convey the risk of a miscarriage of justice which arose from that prejudice. Considered as a whole in the context of the trial, the direction did not convey to the jury the risk of miscarriage of justice which arose in this case from the combination of delay in bringing the matter to trial and the circumstance that the complainant's account was the only evidence of the commission of the charged offence.

69 The message conveyed by the direction, which is set out in full at [26] of Martin CJ's reasons, was that it was important to scrutinise the complainant's evidence with special care and that account should be taken of the delay in doing so. However, as counsel for the appellant correctly observed in her oral submissions, the direction does not link the delay with the real danger of a miscarriage of justice which arises from convicting on the complainant's evidence alone in those circumstances. I agree with her submission that there is a difference between a warning as the danger or risk of a miscarriage of justice and a direction (which would be given in any case of this kind) about the importance of looking at the complainant's evidence and being satisfied about its truthfulness and reliability. In light of the manner in which the complainant's recollection of the offence developed over time, it was particularly important that the jury receive a clear and emphatic warning about the risk of a miscarriage of justice. The direction in this case did not, in my respectful view, contain any clear warning of the danger or risk of a miscarriage of justice if the appellant were to be convicted on the complainant's uncorroborated testimony, given the prejudice arising from delay.

70 The appellant also complains that the material parts of the direction were expressed to be, or would have been understood to have been, advisory and not mandatory. I do not accept that aspect of the appellant's submissions. The trial judge explained to the jury that it was their duty to apply the law as he explained it to the facts the jury found (ts 414). He indicated to the jury that he would structure his directions to conclude with three directions of law (ts 412, 432). He began the Longman aspect of his direction by indicating that it was a direction of law (ts 437), and concluded by indicating that the question of delay must be approached bearing in mind what he had said (ts 439). The appellant focuses on references in the direction to what the jury 'should' do, rather than what they 'must' do. However, I do not think the jury could have been under any misapprehension about their duty to apply the direction. When a judge gives the jury an express direction of law that they should do something, and tells the jury that they must follow his directions about the law, the jury must understand that they are under an obligation to do what the judge has said they should do.

71 In my view, the difficulty with the Longman direction in this case was not that the jury would have understood it to be advisory rather than mandatory. Rather, the difficulty is that the direction of law which the trial judge gave did not contain a clear warning alerting the jury to the danger of a miscarriage of justice if they were to convict on the complainant's uncorroborated evidence without the closest scrutiny of that evidence and taking account of the prejudice to the appellant as a result of the significant delay.

72 The State did not contend that the proviso should be applied to dismiss the appeal even if ground 1 of the appeal was made out, and I do not consider this to be a case in which the proviso could be so applied.

[1] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[17] Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161.

[29] Crampton [129] - [130], [132].

[36] Osborne v The State of Western Australia [2013] WASCA 106 [46] - [47] (Buss JA, McLure P & Mazza JA agreeing).

[37] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.

[38] FGC v The State of Western Australia [2008] WASCA 47 [91] - [92] (Wheeler JA).

[39] Evidence Act 1906 (WA), s 36BD.

[40] Longman (91); Crampton [45].

[41] EPD v The State of Western Australia [2011] WASCA 264 [80]; MAS v The State of Western Australia [2012] WASCA 36 [27] - [28]; SPB v The State of Western Australia [2012] WASCA 136 [53].