Pate (a pseudonym) v The Queen [2015] VSCA 110

CRIMINAL LAW - Conviction - Appeal - Sexual offending against child complainant - Events occurring in 1998 - Whether forensic disadvantage direction adequate - Section 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008 - Obligation of counsel to press exception - Appeal allowed - Convictions quashed - New trial ordered.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 8 April 2014, following a 12 day trial in the County Court, the appellant (now aged 59) was convicted of two charges of sexually penetrating a child under the age of 16. He was sentenced, on 2 May 2014, as follows:

Sexual penetration of a child under the age of 16 [Crimes Act 1958 s 45]

Sexual penetration of a child under the age of 16 [Crimes Act 1958 s 45]

2 On 7 November 2014, Redlich JA granted the appellant leave to appeal against conviction on the following grounds:

1A. A substantial miscarriage of justice occurred because of the admission of hearsay evidence of previous representations about the allegations that were not 'fresh in the memory of the person' who made the representation pursuant to s 66 of the Evidence Act 2008.

1B. The learned trial judge erred in failing to exclude [the complainant's mother's] evidence of [the complainant's] complaint of a sore belly on a day following a dance lesson pursuant to s 137 of the Evidence Act 2008.

1. The learned trial judge failed to adequately direct the jury as to the significant forensic disadvantages suffered by the accused.[2]

3 The offences for which the appellant was convicted are alleged to have been committed in 1998.[3] The complainant in respect of both offences is the appellant's niece, who was born in March 1988, making her about 10 years old at the time of the offending.

4 At that time, the complainant lived with her parents and her older sister and brother at a house in Hoppers Crossing. During the relevant period, the appellant who is the complainant's uncle, being her mother's brother, also lived in Hoppers Crossing. He lived there together with his two children, who are, respectively, six and seven years older than the complainant. Another of the complainant's uncles, also on her mother's side, lived across the road from the appellant. The complainant gave evidence that she and members of her extended family were close growing up, and that they would frequently attend gatherings at each other's houses.

5 The complainant's evidence at trial may be summarised as follows. In about 1998, when she was in grade five, she asked her mother if she could have dance lessons. She was told that her mother was not prepared to pay for them. Instead, she organised for the complainant to be taught dancing by the appellant, who had some experience in 'rock and roll' dancing.

6 The dance lessons took place at the appellant's house after school, at approximately three or three-thirty in the afternoon. The complainant estimated that she attended about five such lessons over a period of about a month. The lessons were held in a large tiled area in the appellant's kitchen.

7 The complainant gave evidence that she remembered wearing long pants during some of the dance lessons. On that basis, she thought the lessons may have taken place in winter, but she could not be sure of this.

8 The dancing required her to 'partner up' with the appellant. They had to be close together, which made her feel uneasy and uncomfortable. She claimed that during the first lesson, he placed his hand on her for a long period of time in 'inappropriate places'. She said that his hand was very low down her back, or by her bottom. After the first lesson, she told her brother that she did not want to go back to the appellant's house anymore because she felt uncomfortable. Her brother told her that she was being ungrateful, and that she should continue to attend the lessons.

9 At a subsequent lesson, the appellant told the complainant 'it looks like your boobs are getting bigger'. He briefly touched her breasts on the outside of her clothes, and looked under her singlet. He then touched her nipples on the inside of her singlet.

10 On another occasion, the appellant pulled back the elastic band on the complainant's school pants. He looked down her pants and asked her if she had pubic hair. At the same time, he slipped his hand inside her underwear, and moved his finger up into her vagina. The complainant said that this caused her to feel a painful stretching and tearing sensation (charge 1).

11 At the next lesson, the complainant entered the appellant's house from the back sliding door, and went into the kitchen. She heard rustling in the appellant's bedroom. She looked down the hall and saw him standing in the doorway of his bedroom. His underwear was pulled down to mid-thigh, exposing his penis. The complainant was unsure whether she had walked in on him getting changed, or if he had meant to expose himself. She turned around.

12 On the last occasion that the complainant attended the appellant's house for a lesson, he came up behind her and put his hand into her underwear. He touched her bottom and then penetrated her vagina with his finger (charge 2).

13 The Crown case turned largely upon the complainant's evidence. The Crown also relied upon evidence given by her mother, and her boyfriend. It will be necessary to say more about their evidence later, in the context of grounds 1A and 1B.

14 The appellant denied that the alleged offending took place. Indeed, he denied ever having given the complainant dance lessons. He claimed that, during the relevant period, he would start work at 7:00 am and not return home until between 4:00 pm and 4:45 pm. He also claimed that when he got home from work, his two children were usually there. He insisted that he had never made any sexual comments to the complainant. Nor had he ever touched her inappropriately.

15 Evidence was also led on behalf of the defence from the appellant's son and daughter. They both said that, during the relevant period, they would normally go home immediately after school, generally arriving at about 3:30 pm. They claimed never to have seen the complainant attend their home for dance lessons with their father.

16 They also gave evidence that, during the winter of 1998, their father took them for a holiday overseas. Records from the son's passport showed that he was out of the country from 13 June 1998 to 9 August 1998.

17 This ground concerns the admission, under s 66 of the Evidence Act 2008 ('Evidence Act'), of evidence of 'previous representations' made by the complainant to her boyfriend regarding the allegations against the appellant. She made those representations in late 2009 or early 2010, about 12 years after the alleged offending.

18 The representations were outlined in a statement that the complainant's boyfriend made to police on 30 November 2010, which was tendered at the committal. The relevant parts of the statement are as follows:

Next [the complainant] told me about her dancing lessons with [the appellant]. [The complainant] said it was her mother's idea for [her] to get dancing lessons from [the appellant].

All [the complainant] told me was that's when stuff happened and that [the appellant] touched her.

...

From then on [the complainant] told me about the dance lessons with [the appellant], [the complainant] said she would feel really uncomfortable by the way [the appellant] would touch her and she complained to [her brother] about it.

[The complainant's brother] told her be grateful and that he is your uncle and he is trying to teach you to dance.

After that it got worse [the appellant] would put his hands down her pants, [the appellant] would play with himself.

[The complainant] told me she saw [the appellant] without his pants on looking at her.

19 It appears that this was the first occasion on which the complainant had told anyone about what the appellant had done to her. Subsequently, the best part of a year later, the complainant reported the matter to the police. She then made a series of formal statements regarding the appellant's conduct. Her first statement, which was tendered at the committal, was dated 16 November 2010.

20 The admissibility of the evidence concerning the complainant's previous representations to her boyfriend was discussed at some length prior to the commencement of the trial. During the course of pre-trial argument, counsel for the appellant told the judge that no objection was taken to this particular evidence being led. Notwithstanding that concession, the judge subsequently made a formal ruling that the relevant evidence was admissible under s 66 of the Evidence Act, and explained that he would not exercise 'his discretion' to exclude it under s 137.

21 It will be necessary, shortly, to say something more as to the circumstances in which both this concession came to be made, and his Honour's ruling came to be delivered.

22 However, it is useful at this stage to set out the specific evidence given by the boyfriend as to the complainant's previous representations.

23 At trial, the complainant's boyfriend gave the following evidence regarding the relevant representations:

Prosecutor: Could I ask you, was there an occasion when [the complainant] raised with you - spoke to you about some dancing lessons she had with her uncle, [the appellant]?

Witness: Yes, there was, yeah.

Prosecutor: Do you recall the sort of timeframe in which this occurred?

Witness: Yeah, it was 2009 - late 2009/early 2010.

Prosecutor: What initially - what [were] the first comments that [the complainant] had made?

Witness: Her comment was basically she was abused by [the appellant].

Prosecutor: Did she say when this occurred, the abuse occurred?

Witness: Yeah, she told me that it had occurred during her dance lessons when she was young, sort of about ten years old, I think, it was about Grade 5 I think she said she was in.

Prosecutor: Did she mention anything else about her dancing lessons, as to how they started, came about?

Witness: Yeah, she told me it was her mum's idea, well she wanted to get dancing lessons. Whether or not they had the money to pay for them I'm not sure but her mum wanted her to get them through her uncle because he was somehow involved in dancing.

Prosecutor: Did [the complainant] ever give to you any detail about what she said - or did she say anything about what occurred during these dancing lessons?

Witness: Yeah, she told me she was very uncomfortable to begin with during the dancing lessons and that he began to touch her after a few lessons inappropriately and it escalated from there. He put his hands down her pants. He would play with himself and I think she also told me that she saw him with his pants off at one stage as well.

Prosecutor: Did she give you any details about seeing him with his pants off, what she saw or what was happening?

Witness: I think all she said was she saw him from a distance he had his pants off, but she didn't really go into too much detail other than that.

24 As I have indicated, the judge ruled that the boyfriend's evidence as to the complainant's previous representations were admissible under s 66 of the Evidence Act. That section relevantly provides:

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by -

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made -

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including -

(a) the nature of the event concerned; and

(b) the age and health of the person; and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Note Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606.

25 The appellant submitted that at the time the complainant first told her boyfriend of what the appellant had done, the relevant events were not 'fresh in the memory' within the meaning of s 66(2). It followed that the evidence of her previous representations ought not to have been admitted.

26 In support of that submission, the appellant pointed to the delay of about 12 years between the acts complained of, and when the relevant representations were made. He submitted that a delay of that order was simply too great to enable it to be said that the events in questions were 'fresh in the [complainant's] memory'.

27 The appellant recognised that there were at least two decisions of appellate courts that arguably stood in the way of that submission.

28 The appellant first referred to R v XY,[4] a decision of the New South Wales Court of Criminal Appeal. There, the alleged offending occurred between 2003 and 2005, but there were no complaints of sexual abuse until the latter part of 2007, and mid-2009. It was held that all of the complaints satisfied the 'fresh in the memory' test set out in s 66(2). As to the proper interpretation of the provision, the Court said:

For present purposes, however, it may be seen that the present legislation makes it clear that the context of the phrase 'fresh in the memory' no longer is to be taken as an indication that it means 'recent' or 'immediate'. The expression 'fresh in the memory' is now to be interpreted more widely than did the High Court in Graham's case. No longer is the 'core meaning' of the phrase to be interpreted as 'essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation'. That temporal relationship remains a relevant consideration but it is by no means determinative of the question. Importantly, the court now must take into account 'the nature of the event concerned'. In Graham's case, that was not seen as a particularly important matter. It now takes its place as an important consideration in the factors to be considered.[5]

29 The appellant next drew attention to the decision of this Court in LMD v The Queen.[6] There the Court upheld a finding that a complaint made 10 years after the alleged sexual abuse was 'fresh' in the complainant's memory. The Court said:

The period of time between the occurrence of the asserted fact and the making of the representation is one of the factors which the court may by s 66(2A) take into account in determining whether that occurrence was fresh in the memory. The relevance of the passage of time is obvious, but other considerations may also be relevant, perhaps decisively so. The Act itself refers to the nature of the event concerned and the age and health of the representor. It also refers to 'all matters that [the court] considers are relevant to the question'.[7]

30 In his written case, the appellant submitted that neither XY nor LMD gave sufficient emphasis to the temporal factor inherent within the expression 'fresh in the memory'. On that basis, he submitted that those authorities 'should not be followed'. By implication, he submitted that they should be regarded as 'plainly wrong'.

31 During the course of oral argument before this Court, it was suggested to counsel for the appellant that neither XY, nor LMD, ought to be understood as setting down any rigid timeframe as to when it can no longer be asserted that a previous representation concerned events that were 'fresh in the memory'. Rather, it was suggested that an assessment of that issue under s 66(2) must, in each case, turn upon the particular facts and circumstances then applicable.

32 In response, counsel for the appellant submitted that, wherever the cut-off point might be, the test mandated under s 66(2) could not conceivably have been satisfied given the particular circumstances of this case.

33 There were, as I understood it, essentially three points upon which the appellant relied in support of that submission.

34 First, he argued that this was not a case in which one could point to any particular circumstance or event occurring during the intervening period between the time of the alleged sexual abuse and the making of the representation which would provide a basis for concluding that the relevant matters had remained fresh in the complainant's memory. The evidence was to the contrary. It suggested that the complaint had never said anything to anyone about the events of 1998 until late 2009 or early 2010. Indeed, evidence had been led at the committal to the effect that the complainant had, on at least two occasions in 2004 and 2009 respectively, been asked about any alleged sexual abuse by the appellant, and on both those occasions had specifically denied that there had been any such abuse.[8]

35 Secondly, counsel placed some emphasis on the complainant's own statements at trial which called into question the reliability of her memory, at least as to the details of the alleged abuse. In particular, he referred to the following passage from the complainant's cross-examination:

Counsel: But when you gave evidence at the Magistrates' Court, you couldn't say whether [two of the acts complained of] happened on the one occasion or not?

Witness: I know. That's because my memory was a lot hazier, but we've already - I've already said this, my memory was hazier back then and I've been able to figure it out a bit more accurately now after having so much therapy and speaking about it for four years or however long this has been taking.

36 Counsel also referred to a separate answer given during the course of cross-examination in which the complainant said that she had 'blocked out these memories', and could not recall the 'details'.

37 Finally, counsel submitted that the description given by the complainant to her boyfriend of what the appellant had supposedly done to her was vague, and wholly lacking in detail. He referred, in that regard, to the evidence given by the complainant's boyfriend, which I have previously set out.[9] This lack of detail was said to be a factor which supported the submission that these events could not have been 'fresh in the [complainant's] memory' at the relevant time.

38 As to the significance of the concession made by trial counsel regarding the admissibility of the evidence, counsel on the appeal submitted that this was explicable when regard was had to the particular context in which it was made. The relevant context was as follows.

39 In an earlier trial, which subsequently miscarried, the judge made a ruling regarding the admissibility of other, unrelated, representations as an exception to the rule against previous representations under s 66(2). That ruling was based upon his Honour's conclusions, expressed in his ruling, as to the proper interpretation of s 66 and, in particular, the meaning of the expression 'fresh in the memory'. The judge had, on that occasion, referred to both XY and LMD, and concluded that he was 'bound to follow' those authorities.

40 Prior to that ruling being made, trial counsel had submitted, formally it would seem, that both XY and LMD were wrongly decided.

41 During the course of pre-trial argument in the instant trial, counsel indicated that he maintained his earlier submission that both these cases had been wrongly decided. That statement was made after the relevant concession to which I have previously referred had been offered, and in the context of an argument as to the admissibility, under s 66(2), of a different set of previous representations. Nevertheless, in the course of that argument, counsel put forward a number of submissions as to the proper interpretation of 'fresh in the memory', and the matters which bore upon that question in the present case.[10]

42 Following that discussion, the judge made a ruling as to the admissibility of those other 'previous representations'. It was in that ruling that his Honour also ruled on the admissibility of the statements made by the complainant to her boyfriend with which ground 1A is now concerned.

43 Against that background, counsel before this Court advanced two reasons why the concession made below ought not be regarded as fatal to this ground of appeal. First, it was submitted that the concession had been qualified in the sense that it was based upon counsel's acceptance of the judge's previous ruling as to the interpretation of s 66(2), which counsel at all times maintained was incorrect. Secondly, given that the course of pre-trial argument had led to the judge having, in any event, ruled upon the issue, it was submitted that it would be wrong for this Court to refuse to intervene if that ruling was found to be incorrect.

44 The Crown's submissions on ground 1A can be summarised relatively briefly.

45 Although the Crown maintained that the judge was, in any event, correct in ruling that the relevant previous representation was admissible under s 66(2),[11] it was submitted that even if that submission were not accepted, trial counsel's concession that the evidence was admissible should be regarded as fatal to this ground.

46 In support of that submission, it was said that, even when viewed in its proper context, counsel's position at trial was clear and unequivocal. No objection was taken to the admissibility of the previous representations of which complaint is now made.

47 Secondly, the Crown argued that trial counsel's concession was capable of being seen as the product of a legitimate forensic choice. In that regard, the Crown pointed out that, in his closing address, defence counsel used the evidence of the complainant's boyfriend to underscore the fact that there had been a delay of some two years between the time that the complainant first began seeing her boyfriend, and the time that she first made the complaint. In that sense, it was submitted, the boyfriend's evidence could be seen as part of the defence attack upon the complainant's credit.

48 The Crown also pointed to a series of inconsistencies between what the complainant had told her boyfriend, and the version of events that she ultimately gave at trial. This was said to be a factor which may have been of forensic benefit to the defence. The Crown fairly acknowledged, however, that trial counsel had not sought to rely upon, or at least given any great emphasis to, those apparent inconsistencies in his final address.

49 Thirdly, the Crown argued that, as a consequence of the concession being made, the matters relevant to admissibility under s 66(2) were not properly explored at the trial. For example, the complainant herself did not give any evidence as to the relevant representations. Moreover, the prosecutor did not seek to put forward any material or argument which would support a finding that her memory of the relevant events remained 'fresh' despite the lengthy passage of time. Nor did it seek, directly, to address the argument now put about the 'lack of detail' or 'vagueness' of the representations made.

50 The Crown submitted that the position taken below could be contrasted with the approach taken to the admissibility of other evidence to which the defence did object. That included the previous representations that are the subject of ground 1B. The issues of admissibility in relation to that evidence were fully ventilated in the course of a voir dire, as well as in detailed oral argument. In those circumstances, the Crown submitted, the appellant should be bound by the concession that was made at trial.

51 Finally, the Crown argued that the level of prejudice likely to have been suffered by the defence as a result of the admission of the representations made to the complainant's boyfriend was not significant. That was because the jury would, in any event, have been apprised of the fact that the complainant had made a prior consistent statement to police, outlining the relevant allegations against the appellant, in November 2010. In those circumstances, evidence of an additional prior consistent statement, made the best part of a year earlier, was unlikely to have enhanced her credibility to any significant degree. It followed, so it was submitted, that no substantial miscarriage of justice had been occasioned by the admission of the relevant representation.

52 In Graham v The Queen,[12] the High Court held that a complaint made six years after an alleged sexual assault was not 'fresh in the memory' of the complainant within the meaning of s 66 of the Evidence Act. In a joint judgment, Gaudron, Gummow and Hayne JJ said:

The word 'fresh', in its context in s 66, means 'recent' or 'immediate'. It may also carry with it a connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time') but the core of the meaning intended, is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.[13]

53 Callinan J, with whom Gleeson CJ concurred, observed that while the quality or vividness of a recollection could be relevant in an assessment of its 'freshness', contemporaneity was considered the more important factor.[14]

54 Graham was, of course, subsequently followed on a number of occasions. These included cases where complaints made within months of the events in question were excluded as not being 'fresh in the memory' of those having made them.

55 Even then, there were some cases which took a more flexible view of the meaning of this expression. For example, in R v Adam,[15] the New South Wales Court of Criminal Appeal commented upon Graham and then quoted with approval the observations of Wood CJ at CL who had been the trial judge in Adam. His Honour concluded that a statement made seven weeks after an event should not be regarded as being outside the period of fresh memory, bearing in mind that the question was always one of fact and degree.

56 In R v Vinh Le,[16] it was noted that the 'constant refreshing effect' of repeated sexual abuse might warrant a departure from the narrowest and most literal construction of the expression 'fresh in the memory' as seemingly endorsed in Graham. Otherwise, the position would be absurd, since the section could never apply to any complaint of a pattern of behaviour when that pattern had begun years before, but continued up to or near to the time at which the complaint was made.

57 When the Australian Law Reform Commission ('ALRC') came to review the operation of the Evidence Act, in 2004, it noted that the psychological literature on child abuse, in particular, demonstrated that delay in disclosure was a typical feature of cases of that type. It recognised that there were many compelling and valid reasons why victims of sexual assault did not immediately report such conduct. At the same time, however, it noted psychological studies which emphasised the subjective nature of memory, and the suggestibility of people, especially those who were psychologically damaged, to the idea that they must have been sexually abused.

58 It was in response to material of this kind that s 66 was amended to make it clear, ostensibly, that the question whether a particular memory is 'fresh' is to be determined not just by the passage of time, but also by the quality of the memory in question. This invites attention to matters such as the effect of trauma upon memory, as well as what is known as the 'misinformation effect'.

59 The ALRC observed that psychological research into memory was a field in which experimental results varied, and upon which experts differed. The one matter on which there was general agreement, however, was that memory processes are complex and subject to a number of different factors. No single factor could ensure accuracy.

60 It was in the light of the ALRC's further research into this problem that it recommended that the Evidence Act be amended to make clear that, for the purposes of s 66(2), whether a memory is 'fresh' is to be determined by reference to factors in addition to the time that had lapsed between the occurrence of the asserted fact and the making of the representation.

61 As s 66(2A) makes clear, these factors include the nature of the event concerned and the age and health of the person, as well as the period of time between the occurrence of the asserted fact and the making of the representation.

62 Cases such as XY and LMD demonstrate that, in any given circumstances, complaints made even years after the events in question can be viewed as 'fresh in the memory'. In XY, that was because of the 'vivid picture painted' of the alleged offending, rendering it likely that those events were 'well and truly implanted' in the complainant's memory, the ALRC's research having shown that 'emotionally arousing or stressful incidents' could be well remembered, even though peripheral details surrounding them might not be. In LMD, it was because, notwithstanding the lapse of ten years, there had been a continuous revival of the events in question. That was because the complainant in that case was continually experiencing difficulty having sexual intercourse with her boyfriend as a result of constant flashbacks as to her uncle's offending.

63 In Clay v The Queen,[17] the period in question, in the case of at least two of three complainants, exceeded 20 years. This Court observed:

While it is true that the 'nature of the event' concerned is a relevant factor in determining whether to permit evidence of previous complaint to be led, so too, in terms, is 'the period of time between the occurrence of the asserted fact and the making of the representation'. Wherever the line is to be drawn, a period that, in the case of at least two of the complainants, exceeded 20 years seems to us to have been so far beyond what the legislature could ever have contemplated when it enacted s 66(2A) as to make it impossible to say that the requirements of the section were met. In this case, absent any evidence to suggest that these matters were relevantly 'fresh in the memory' of the individual complainant concerned, the hearsay rule was applicable. Evidence of each of the complaints should, accordingly, have been excluded.[18]

64 In the present case, the alleged offending occurred in 1998, and the complaint which forms the basis of ground 1A was made in late 2009 or early 2010. In other words, the period of time between the occurrence of the asserted fact and the making of the complaint was of the order of 12 years.

65 It does not follow that a delay of that order is, in and of itself, too great to qualify for admissibility under s 66(2A). There is no single bright line figure beyond which a representation made long after an event cannot be 'fresh in the memory'. Plainly, however, the greater the period that has passed, the greater the need for there to be some reason why the event would be 'fresh' in the memory. LMD provides a useful example of the kind of evidence that might be sufficient to overcome the time barrier in the notion of something being fresh. There was no evidence of that kind in Clay, and in my view, there was equally no evidence of that kind in the present case.

66 For that reason, I would reject the Crown's submission that the trial judge was correct in ruling that the relevant representations were admissible under s 66.

67 Of course, that is not dispositive of this appeal. There is good reason to view trial counsel's conduct as amounting to a complete waiver of any objection to the representation made by the complainant to her boyfriend being admitted into evidence. As the Crown submitted, there were perfectly sensible forensic reasons for doing so, and little downside, in the particular circumstances of this case, to having that evidence placed before the jury. This was not a case in which the fact that a complaint was made shortly after the event adds probative force to the complainant's credibility. Far from it. The jury were always going to be aware of the fact that many years had passed from the time of the alleged offending until the matter was first drawn to anyone else's attention. A complaint first made in 2009 or 2010, regarding 1998 offending, would scarcely enhance the complainant's credibility, and might be put to considerable forensic advantage. That was precisely what, in my view, trial counsel sought to do in this case.

68 I also accept the Crown's submission that, had objection to the complaint been vigorously pressed, as it clearly ought to have been had trial counsel genuinely taken the view that it would be damaging to the appellant to have this evidence admitted, the question whether there was some particular reason why the memory of the event had continually resurfaced during the dozen years or so that had passed could have been explored. The fact remains that no such point was properly taken, and the complainant gave her account with no such exploration having been undertaken.

70 This ground concerns the admission of evidence of a representation said to have been made by the complainant to her mother at around the time of the offending. The Crown case was that, after the first occasion of sexual penetration by the appellant, the complainant said to her mother that she had a sore vagina. The Crown sought to lead evidence of this representation from both the complainant and her mother.

71 During pre-trial argument, counsel for the appellant objected to the admission of the relevant evidence. In order to understand the basis for that objection, it is necessary to set out some further background as to how the question of admissibility arose.

72 In her statement to police on 16 November 2010, the complainant referred to two occasions on which she had complained to her mother about having a sore vagina. The first time she complained was said to have been following an incident when the complainant was five years old. That incident involved the complainant having been digitally penetrated whilst she was in bed sleeping. She claimed to have told her mother that she had a sore vagina the morning after that incident took place. She indicated to police that she thought the perpetrator must have been the appellant, but acknowledged she could not be sure of the person's identity.

73 The Crown initially contemplated leading evidence of this prior act of sexual penetration as an uncharged act. However, it subsequently decided not to do so.

74 The complainant said the second time she complained to her mother about having a sore vagina was when she was about 10 years old. This was said to have occurred after the first occasion on which she was digitally penetrated by the appellant during a dance lesson.

75 The complainant's mother, in her statement to police, referred to an occasion on which her daughter had complained about having a 'sore belly'. She said that this occurred on a Saturday morning, a day after the complainant had attended a dance lesson with the appellant. She described the circumstances as follows:

I remember once we were sleeping in the lounge room as it was hot, [the complainant] use [sic] to sleep on the couch, I remember this time she wanted to sleep with me and [the complainant's father] in the morning she was crying and told me her belly was sore. While we still on the floor in bed [the appellant] came and was calling out for my husband, I went to get up and [the complainant] move closer to me, I thought she was cold, [the complainant] said to me don't go, I got up to make a coffee and told [the complainant] that I will come back. I remember [the appellant] asking me what was wrong with [the complainant], I said I don't know she is complaining about her belly, she has done this before. [The appellant] tried to play it cool and said kids are always complaining.

[The complainant] would hold her stomach and double over in pain, I never thought it was her vagina I thought it was period pain, as one of my sisters got her period when she was nine.

Looking back now I remember the day before [the complainant] had gone to [the appellant's] place for dancing lessons ... .

76 During the subsequent committal hearing, the complainant was cross-examined about this matter. The following exchange took place:

Counsel: So did you ever tell your mother about [the appellant's conduct during the dance lessons]?

Witness: Um, I didn't - I haven't still to this day - haven't told my mother details. Ah, she just knows that I was touched by [the appellant].

Counsel: Well, did you ever intimate at all to your mother anything along these lines?

Witness: Um, I only mentioned to my mother that ah, I had a sore vagina. And that was - I'm not sure if that was - if that's crashing into the first time I told her when I was young, or not; because my mind is very hazy, so -

Counsel: What you're saying is that you had a sore vagina when you were about ... that incident when the person walked in the room, right?

Witness: Yeah.

Counsel: You've gone on to describe dance lessons and a couple of incidents ... where he touched you, you say?

Witness: Yes.

Counsel: And you say that in relation to one of those incidents you had a sore vagina, do you?

Witness: Um, yeah. I've - after that I did have a sore vagina, after being - after the dance lessons. I'm not sure whether or not I told my mum it was sore, I don't think I did ... .[19]

77 In objecting to the evidence of the earlier complaint being led, counsel for the appellant focussed on the discrepancies that had emerged in the complainant's responses elicited during cross-examination at the committal. In particular, so it was submitted, the complainant appeared to suggest that she had only complained about having a sore vagina after the incident which occurred when she was 5 years old, and may have confused that incident with the subsequent offending alleged to have been committed by the appellant some five years later.

78 In that context, it was submitted by trial counsel that the appellant would suffer undue prejudice if the judge permitted the Crown to lead evidence as to the complainant having told her mother that she had a sore vagina after a dance lesson. That was said to be so because, in order to properly cross-examine the complainant (and her mother) in relation to the inconsistencies referred to above, the defence would need to introduce evidence of the incident said to have taken place when the complainant was 5 years old. That would occasion significant prejudice to the appellant.

79 The trial judge ordered that there be a voir dire with the complainant and her mother to determine the admissibility of the evidence. At the voir dire, the complainant re-affirmed the version of events that she had given in her statement to police - namely that there were two separate occasions on which she complained to her mother about having a sore vagina. As to the second occasion, she said that this occurred the same evening that she was first sexually penetrated by the appellant, and that her mother was standing in the kitchen when she told her. The complainant acknowledged that she had said something quite different at the committal, but claimed she had a better memory of the incident by the time of the trial.

80 The complainant's mother gave an account which was similar to what she had previously said in her statement to police. In cross-examination, it was put to her that the complainant had spoken for many years of having a 'sore belly', and that she had taken her, when aged about 5, to see a Dr Underwood on several occasions about that issue. She agreed with both those propositions. She also gave evidence, in cross-examination, that there was an occasion where the complainant had previously told her that she was 'sore down there', and that this had occurred when the complainant was between 4-6 years old.

81 There were a number of inconsistencies between the evidence of the complainant and that given by her mother. For example, the complainant said that when she complained to her mother, she would have used the Maltese word meaning 'vagina' - the complainant's mother said her daughter complained of having a 'sore belly'; the complainant said she had made the complaint on the evening that she was first sexually penetrated by the appellant - her mother said it occurred the following morning; the complainant said she went to the doctor the day after the complaint - her mother did not give evidence to that effect; the complainant said her mother was in the kitchen when she made the complaint - her mother said they were in the lounge room; the complainant said that her family stopped sleeping in the lounge room once they got a new air conditioning system, which happened before she was 6 years old - her mother said that the family had slept in the lounge room the evening prior to the complaint being made, and that this occurred when the complainant was about 10 years old; the complainant said she thought the alleged offending (and, by extension, the complaint about having a sore vagina) occurred in winter - on her mother's account, it must have occurred in summer.

82 Following the voir dire, trial counsel made further submissions as to why the evidence should be excluded, either on the basis of s 66 or s 137 of the Evidence Act. Counsel submitted that the unreliability of the evidence could only be exposed by his introducing evidence of the 'uncharged act', which would entail grave prejudice to his client. He submitted that this prejudice could be contrasted with the low probative value of the evidence.

83 The trial judge ruled that the evidence was admissible. His Honour considered that the internal inconsistency in the account of the complainant, and the discrepancy between her evidence and that of her mother, went to issues of reliability and credibility, which were matters for the jury. He found that the representations satisfied s 66 of the Evidence Act.[20]

84 As regards the probative value of the complainant's evidence for the purpose of s 137, his Honour said:

Accepting the truth of her evidence, ultimately, I see the probative value of [the complainant's] evidence of complaint to her mother about a sore vagina, when made, to have significant probative value. That is, injury or soreness at a relevant time consistent with her allegation against the accused, which is not outweighed by danger of prejudice.

85 His Honour also found that the evidence of the complainant's mother had 'some probative value', to the extent it supported the complainant's account.

86 In relation to the danger of unfair prejudice alleged by the appellant, his Honour said the following:

Here, the inconsistency between the expected evidence at trial - that is, the voir-dire deposition of [the complainant] - and the committal evidence is clearly identifiable and in a way capable of being isolated from the damaging material the defence fears. I do not see the need or inevitability of that damaging material being introduced. Further, as a secondary proposition, the level of prejudice or damage said to be risked is not high ... .

...

Accordingly, I see some probative value in the evidence. Balanced against that, I do not see the prejudice or danger of it argued. I am not persuaded that the defects in [the complainant's mother's] evidence - which, as I have said, relate to matters relevant to the jury's acceptance and assessment of it - cannot be revealed by cross-examination or other challenge, such [that] the trial is a fair one. For example, the proposition that [the complainant's] complaints about a sore belly related to another, not inculpatory, occasion, is readily available, by reference to [the complainant's mother's] concessions about a number of such occasions in fact requiring medical consultation in earlier years. Other matters - for example, related to circumstances, time, and season - are available to a cross-examiner without reference to the danger feared.

I see no sensibly compelling reason for the defence to be forced to raise the earlier sexual event when [the complainant] was about five years old. As to that, I do not repeat, but refer to my earlier remarks about the level of prejudice to the accused created by the jury's exposure to that event. However, I emphasise that I see that exposure as unlikely.

Therefore, as to both of these pieces of challenged evidence, I find that the probative value is not outweighed by the danger of unfair prejudice to the accused.

87 In light of that ruling, the complainant, at trial, essentially repeated the evidence that she gave at the voir dire regarding her having complained to her mother about experiencing a sore vagina. She was cross-examined extensively by defence counsel as to the inconsistencies between that evidence, and what she said at the committal. The transcript reads as follows:

Counsel: You were asked [at the committal hearing] questions about whether in fact you told your mother about having a sore vagina after a dancing lesson?

Witness: Yes.

Counsel: And you told the magistrate, 'I am not sure whether or not I told my mum it was sore. I don't think I did'. That is what you said under oath at the Magistrates [sic] Court wasn't it?

Witness: I am not sure about what I am allowed to say here. I don't know.

Counsel: It is a very specific question ... ?

Witness: At the time I was confused because of versions that I am not allowed to bring up ... .

Counsel: Did you or did you not say to the magistrate in answer to this question, and you say that in relation to one of those incidents 'You had a sore vagina, do you?' Answer: 'M'mm, yes, after that I did have a sore vagina after being, after the dance lessons. I am not sure whether or not I told my mum it was sore. I don't think I did'. Did you make that answer at the preliminary hearing?

Witness: Yes but - this isn't fair. I am sorry, can I have a break because I need to speak to someone. This isn't fair. I have been gagged. Not allowed to say certain things and it is hard.

88 A short adjournment then took place during which the jury was withdrawn. The judge reminded the complainant of the previous rulings which had been made in the case, and instructed her simply to answer the questions that were asked of her. Defence counsel then resumed questioning the complainant as to the evidence she had given at the committal. No further reference or intimation of any kind was made to the earlier uncharged act during the course of that questioning.

89 Defence counsel also cross-examined both the complainant and her mother in relation to the various inconsistencies between their accounts to which I have previously referred.

90 In his charge to the jury, the trial judge dealt extensively with the appellant's attack upon the evidence relating to the previous complaint, as put forward during the course of the trial. His Honour said:

Dealing in the main with the evidence about alleged complaint to [the complainant's mother] about a hurt or sore vagina, he said these things about that. That after the alleged first offence, she said that she had a sore vagina and it was her evidence - and he read from some of this - that she told her mother that her vagina was sore.

In cross-examination she added more detail. There was, in effect, another recollection of having showered and then having showed her mother. When [the complainant's mother] gave evidence, there was nothing from her mother in relation to that, no support at all. Further Mr Hill reminded you of the evidence of [the complainant], that she went to the doctor on the following day. There was no evidence of that from her mother.

This contrasted with, or must be measured against, the evidence given by Dr Underwood of occasions of being treated for a sore belly and vagina, but when she was aged between six and eight years, not at the relevant time. You might think that this is a critical matter. For example, the defence would be able to fix the date of the alleged offending and complaint about sore vagina, about when it was supposed to have occurred, but for the delay of 16 or more years since the offending.

...

Dealing further with the evidence about telling her mother of her sore vagina, she placed it, [the complainant], in the kitchen, the mother ... in the lounge. The mother said in the lounge on the next day after a dancing lesson. I mean, they were in bed because the hot weather had forced them to sleep in the lounge room, noting [defence counsel] said that the evidence of [the complainant] was that these things occurred when she was wearing her winter tracksuit pants, or uniform.

He put to you that it becomes clear that they are not talking about the same thing or event. You might think, [defence counsel] put to you, that [the mother] is talking about an earlier event when she, the child, was aged between five and eight, which caused consultation or treatment with Dr Underwood.

Further comparing the differences in their accounts, [defence counsel] took you to ... [the complainant's] evidence, that [her] mother put Vaseline on the area. On the next day she went to her doctor but in relation to a sore stomach because she didn't want to go to school. [The mother] described the conversation as having occurred on the Saturday morning, when of course there was no school, he put to you.

...

[Defence counsel] took you to further inconsistencies with [the complainant's] committal evidence, in which he said as to this conversation about a sore vagina attached to or related to a dancing lesson, that she was not sure, that she didn't think she'd told her mother about it. That is, [defence counsel] put to you, a different memory to the one she had or professed here.

At the committal, [defence counsel] reminded you, that as to the two incidents making out Charge 1 and 2, she said that they tended to blur into one whereas she definitely separated them in her evidence here. He took you to further comparison between [the complainant] and [her mother] on evidence of this occasion, of complaint about her vagina. [The complainant] said that the evaporative cooling system came into the house when she was considerably younger, perhaps five or six years.

Before that the family, when it was hot, commonly slept in the lounge area.

[The complainant's mother] said this was a hot night and they took their mattresses in there because there was an air conditioner in the lounge. You might think, [defence counsel] said to you, that - bearing in mind the combination or juxtaposition of these two pieces of evidence, that [the complainant's mother] is talking about earlier times, when the child was between six and eight years and taken to the doctor for a sore stomach. You can see, he argued to you, over time the risk of distortion and error. These are markedly different versions about what is said to be the same occasions.

...

Returning to [the complainant] and her complaint about a sore vagina, and the differences between her and her mother, he referred you to further evidence of [the complainant] at committal in 2011, about this occasion of complaint about her sore vagina, when she said at committal that she didn't think she told her mother. And that she didn't think she'd went to the doctor. You may well think that she is confusing an event related to a sore vagina with an earlier time when she was about five years.

91 That then is the background against which the parties' submissions on ground 1B fall to be considered.

92 Before this Court, the appellant essentially maintained the complaints he had made as to the admissibility of the relevant evidence before the trial judge. He submitted that, contrary to the judge's finding, the probative value of the evidence was low. This was due to the inconsistencies referred to, and the uncertainty as to whether the incident had occurred when the complainant was 5 or 10 years old.

93 The appellant also maintained that the prejudice caused by the admission of the evidence was significant and unfair. This was because the defence was put in a position whereby the only way it could properly expose the unreliability of the evidence was through the pursuit of a line of cross-examination which would reintroduce the uncharged act that the prosecution had earlier abandoned. The fact that defence counsel chose, quite properly, not to take that course, such that evidence of the earlier event was not ultimately exposed at the trial, was no answer to the present ground of appeal.

94 The Crown submitted that the judge was correct to find that the probative value of the evidence relating to the prior complaint was high. It argued that there was an essential consistency between the evidence of the complainant and that of her mother. They both claimed that the complaint was made when the complainant was about 10 years old, and after she had attended a dance lesson with the appellant.

95 The Crown also submitted that the trial judge was correct in determining that it was possible for the defence to adequately cross-examine the witnesses as to the inconsistencies in their testimony, and to make its case that the relevant complaint must have occurred at an earlier time, without introducing evidence of the uncharged act. Indeed, it pointed to the fact that this ultimately was what occurred, and that no prejudice was occasioned to the appellant.

96 Section 137 of the Evidence Act provides that, in a criminal proceeding, 'the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused'.

97 The trial judge gave careful consideration to the probative value of this evidence, and balanced it against the danger of unfair prejudice. The matter was adequately explored, through cross-examination, and the defence gained considerable forensic advantage through having dealt with the matter in that manner. The jury were under no illusions as to the discrepancies between the complainant's account, and that of her mother regarding this matter.

98 I am not persuaded that the trial judge erred in permitting this evidence to be led. Even if I were wrong about that, I do not think that its admission could possibly have affected the outcome of this trial. I would reject ground 1B.

99 This ground concerns an alleged failure on the part of the judge to adequately direct the jury as to the forensic disadvantages suffered by the appellant by reason of the effluxion of time. In written submissions to the judge, filed prior to the charge, the defence sought directions in relation to the following matters:

• The absence of any medical examination of the complainant - [the complainant] asserts that her vagina was sore, inflamed and bleeding following the offending alleged in charge one. Opportunity has been lost for a forensic medical examination as to the injury and as to DNA occasioning great forensic disadvantage to the accused.
• The loss of the chance to call contemporaneous evidence about the locations where the allegations are said to take place - the accused has been forced to rely upon limited photographic evidence of the layout and furnishings of his residence.
• The inability to explore the alleged circumstances of the offending in detail - [the complainant] proved wholly incapable of supplying any detail about surrounding circumstances or events.
• The inability of the complainant to identify the alleged occasion of the allegations with any specificity. The accused may have had resort to other witnesses who may have been present or who could contradict with greater certainty the occurrence of any dancing lessons. The accused may have raised an alibi as to a certain date or time period.
• The delay has resulted in great difficulties calling evidence to contradict the broader evidence of the complainant. The accused has been reduced to a simple denial of the offending and the occurrence of dance lessons.
• The forensic disadvantages suffered by the accused have been exacerbated by the obvious fact that the complainant's own recollections are weakened by the delay. As a result she could offer few specific details to be tested before the jury. So much is true of the complainant but the point extends to every witness in the case.

100 Trial counsel expanded upon these submissions in oral argument. During the course of that argument, it readily became apparent that many of the matters referred to in each of the six points upon which the appellant relied overlapped. In particular, the disadvantages referred to in the fourth and fifth points, inability to identify with precision the dates in question, and inability to locate potentially relevant witnesses, could essentially be encapsulated within the first point - namely, the absence of any medical examination or records relating to the alleged offending.

101 In oral argument, the defence submitted that the disadvantage entailed by the absence of such medical or other like records extended to the fact that it deprived the appellant of the opportunity to explore whether the particular date or dates overlapped with a period when the appellant was overseas, or possibly whether there was some other alibi upon which the appellant could rely.

102 After considering the parties' submissions on these issues, the judge said:

It seems to me that the forensic disadvantage here flows from or focuses on the medical examination point and it does combine with the failure to identify a narrow period related to the medical examination because of the travel overseas. That seems to me to be the nature of the disadvantage and it seems to have two prongs and I could think on how I put it, and I think a lot of the other claimed disadvantages are in part a re-statement of that, but not in total.

I have heard what you have both had to say and I will think about that overnight but I am certainly going to give a direction related to Point 1 and the matters that flow from it.

103 Subsequently, in his charge to the jury, the judge gave the following directions:

My third direction relates to the impact the delay in complaint and the delay in the proceeding has had on the accused's ability to defend himself against these charges. In assessing the evidence in this case you must have regard to the following considerations: because of the delay there is no evidence of medical examination before you.

I refer particularly to [the complainant's] evidence of having a sore and inflamed vagina after the sexual offence in Charge 1 and that she told her mother about it. She stated that her vagina bled at the time of the offence. Her evidence was also that she was taken to the doctor the following day, albeit she appeared not certain of that and related it rather to complaint of a sore stomach to avoid school and having to go to a dancing lesson with the accused after school.

The effect of Dr Underwood's evidence was that he was not the family doctor at this stage when [the complainant] was 10 or 11. Accordingly there is not the advantage of medical evidence about this at a time just after the alleged offence in Charge 1.

Further, there is lost an opportunity to fix the date of Charge 1, for example, by reference to medical records. Relevant to this is the overseas trip by the accused and his family in mid-June and early August 1998. Now, I say Charge 1, but this point that is being made now relates more broadly and may be considered in relation to Charge 2, because the evidence is that the dancing lessons occurred over a relatively confined period of time, perhaps a month.

Such disadvantages to the accused as these are exacerbated in a situation as here where witnesses' recollections, the complainant, the accused, and others ... are conceded to be affected by the delay. You must take these disadvantages into consideration when determining whether the prosecution has proven the accused's guilt beyond reasonable doubt.

104 At the conclusion of the charge, the following exchange took place regarding the issue of forensic disadvantage:

Judge: Yes, just one exception. There's no reason to repeat what arguments were put to me about directions the other day, I take those arguments to stand.

Counsel: Thank you Your Honour.

Judge: Do you want to say anything?

Counsel: We don't want to say anything else Your Honour.

105 No formal exception to the charge was otherwise taken by trial counsel for the appellant.

106 The appellant submitted that, in the circumstances of the present case, the judge was obliged to give a forensic disadvantage direction pursuant to s 61(1A) of the Crimes Act 1958. That provision states

If the judge, on the application of the accused in a proceeding to which subsection (1) applies, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of the delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must, in any terms that the judge considers appropriate having regard to the circumstances of the case -

(a) inform the jury of the nature of the forensic disadvantage suffered by the accused; and

(b) instruct the jury to take that disadvantage into consideration.

107 The appellant argued that the directions ultimately given were deficient. In his amended written case, the argument was particularised as follows:

In order to protect the accused from a potential miscarriage of justice, the direction must extend further than identifying evidence that is simply not available. The direction must extend to the consequences of the forensic disadvantage suffered by the accused. The directions given at trial did no more than identify that because of the delay there was no medical evidence before the jury and the date of the offending could not be fixed precisely. The directions given ought to have gone further and identified for the jury the disadvantages suffered by the appellant.[21]

108 The appellant went on to specify six directions that he submitted ought to have been given, but which he claimed had not been given to the jury:

• evidence of medical examination might have provided evidence contradicting the allegations of [the complainant] and that a precisely fixed date might have fixed the offences in a period where an alibi could have been raised;
• [the complainant's] inability to identify the occasion of the offending with precision made it difficult for the appellant to raise any defence other than a simple denial;
• the effect of the delay on the witnesses' recollection disadvantaged the appellant in that he lost an opportunity to explore the alleged circumstances in detail soon after the offences were said to have occurred;
• such an exploration may have uncovered evidence which would have thrown doubt upon the complainant's allegations or confirmed the appellant's denials;
• the appellant lost means of testing the allegations that might have been available;
• defence witnesses suffered disadvantage because of the delay and told [sic] that these witnesses may have been able to give evidence contradicting the allegations.

109 During the course of oral argument before this Court, counsel for the appellant conceded that the first and third of these six points were, in fact, encompassed within the directions given to the jury by the judge. Nevertheless, he submitted that those matters ought to have been put in stronger terms so as properly to convey to the jury the nature and extent of the forensic disadvantage suffered by the appellant.

110 Further, the appellant submitted that the fact that no exception was taken, at least in any formal sense, to the judge's directions regarding forensic disadvantage ought not stand in the way of the appeal succeeding. That was because trial counsel's failure to say anything of consequence regarding the supposed inadequacy of the charge was explicable in light of the submissions that had previously been put in relation to forensic disadvantage, and his Honour's indication, following the charge, that there was 'no reason to repeat' those arguments.

111 The Crown submitted that the judge's directions adequately addressed the matters that were required to be covered under s 61(1A). The jury was made aware of the relevant disadvantages that arose as a result of the delay in complaint, and instructed to take those matters into account.

112 As regards the six matters relied upon by the appellant, the Crown submitted that each of them had been addressed, expressly or impliedly, in the directions that were given. The jury were told in the clearest of terms that the appellant could not, as a result of the delay, pin down precisely when this alleged offending had occurred. That meant that he lost the opportunity to rely upon an alibi for the period between June and August 1998 when, on the evidence, he was out of the country. The jury were also told that they were to consider the 'impact' that this delay had had upon the accused's 'ability to defend himself against these charges'.

113 The judge added that 'such disadvantages to the accused as these are exacerbated in a situation as here where witnesses' recollections, the complaint, the accused and others ... are conceded to be affected by the delay'. The jury were told that they 'must' takes these disadvantages into consideration when determining whether the prosecution had established the accused's guilt beyond reasonable doubt'.

114 The Crown submitted that these directions were entirely adequate. They would have brought home to the jury in the clearest of terms that the appellant had suffered disadvantage by reason of the delay that had occurred, they identified the nature of that disadvantage with precision, and they instructed the jury that they were required to take these matters into account in the appellant's favour.

115 To the extent that any disadvantages suffered by the appellant might be said to have extended beyond the matters expressly referred to by the judge, the Crown submitted that it had been open to his Honour to consider those matters sufficiently hypothetical or nebulous as to not warrant specific inclusion in the direction.[22]

116 In my opinion, for the reasons advanced on behalf of the Crown, the directions that the appellant now contends ought to have been given regarding

forensic disadvantage were all adequately embodied within the judge's charge. To the extent that they were not spelt out in as much detail as the appellant now submits they ought to have been, they were sufficiently implicit within what was said. Some of the directions now said to have been omitted were, in my view, of peripheral relevance. Others involved matters so blindingly obvious as to make it quite unnecessary for them to have been laboured.

118 For the reasons set out above, I would dismiss this appeal.

119 I have had the considerable advantage of reading the reasons of Weinberg JA in draft form. His Honour has concluded that the appeal should be dismissed. I respectfully disagree, since, in my view, ground 2 should be upheld.

120 That said, I agree with his Honour's reasons for not upholding ground 1B. I also agree that ground 1A cannot succeed, but wish to add some observations of my own. I am grateful for his Honour's treatment of the evidence and the circumstances in which the grounds arise, which, save to the extent necessary to make my own reasons comprehensible, has relieved me of their recapitulation.

122 I am of the view that the 'forensic disadvantage' direction given in this case

was far too insipid and unemphatic to live up to the intended purpose of such a direction. Even paying due regard to the legislature's desire to emasculate Longman,[23] the forensic disadvantage directions given legislative mandate by s 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008 are meant to bring home to a jury those aspects of forensic disadvantage to an accused which may not be within their ken absent such a direction. A forensic disadvantage direction is intended to inhere for the benefit of an accused person, and to offer some measure of protection from 'the consequences of the delay'. With respect, the direction given by the trial judge was far too feeble to alert the jury to - and to help them understand - the nature and potential consequences of the delay in the circumstances of this case.

123 Counsel for the applicant submitted to the trial judge that this was 'a classic case where a gross forensic disadvantage has occurred'. He relied on several aspects, which are set out in the reasons of Weinberg JA,[24] and which I therefore need not repeat. In discussion, the trial judge referred counsel to PT,[25] which 'seemed to [him] to tighten up the test of what a significant forensic advantage is seen to be by the Court of Appeal'. His Honour's apparent recourse to PT, however, was not to the point. That was a case - unlike the present - where no forensic disadvantage was found. By way of contrast, the trial judge accepted that in the present case the appellant had suffered a forensic disadvantage (at least with respect to the lack of a medical examination).[26]

124 In Greensill,[27] the Court discussed the similarities and dissimilarities between s 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008 [28] - both of which are the legislative font of a forensic disadvantage direction - and the perceived reasons for their enactment.[29] As the Court made clear,[30] although it may be assumed that much of s 61 and s 165B are a legislative response to Longman, it cannot have been the legislative intent to interfere with the fundamental obligation of a judge to ensure the fairness of a criminal trial by giving such necessary directions as the circumstances of the case dictate. That must remain so following the promulgation of the Jury Directions Act 2013 (save that it might be thought that a greater obligation than was previously the case rests on counsel to identify necessary directions).[31]

125 Both s 61 and s 165B require the trial judge to inform the jury of the 'nature' of the particular disadvantage (or disadvantages) 'suffered' by the accused, and both require the judge to inform or instruct the jury to take that disadvantage into 'consideration' or 'account'. Plainly, both sections contemplate that the necessary direction is for the benefit of the accused, since it is the accused who has 'suffered' the 'disadvantage'. Both sections also contemplate that the fairness of the trial has been adversely affected by the delay, since the accused's capacity to defend himself (or herself) has been compromised. And both require the judge to explain the 'nature' - that is, the particular quality or qualities - of the disadvantage.

126 In my view, a forensic disadvantage direction will not satisfy the legislative requirements of s 61 or s 165B unless it brings home to the jury that the accused's capacity to defend himself has been compromised, and spells out the manner in which the accused's capacity to do so has been so compromised. The judge is then required to instruct the jury to take the manner in which the accused's case has been compromised into 'consideration' or 'account'. Thus, the jury must be made to understand the reason why the accused's capacity effectively to defend himself has been compromised, and the effect that may have on the burden and standard of proof. The direction must be emphatic, since it is designed to offer a measure of protection to the accused. Unfortunately, the directions impugned in this case did not fulfil those requirements.

127 Some guidance to the approach to be adopted to s 61 and s 165B may be derived from Cassebohm,[32] where the South Australian Court of Criminal Appeal considered the effect of s 34CB of the Evidence Act 1929 (SA)[33] (a provision which bears a degree of similarity to the Victorian provisions). Doyle CJ (with whom White and Peek JJ agreed), considered that s 34CB(1) had to be read in 'the narrow sense of a warning based on the forensic disadvantage to an accused person attributable to the passage of time'.[34] By reference to what had been said by McHugh J in Doggett,[35] and by Crennan J in Tully,[36] his Honour emphasised that Longman 'is not based simply on the passage of time between the events the subject of the charge and the trial'.[37] Doyle CJ then cited from Crampton,[38] and observed:[39]

The relevant disadvantage to an accused person has often been referred to as a forensic disadvantage. This also is a convenient shorthand for use by judges and lawyers_. But one should be careful not to allow the use of that expression to distract attention from the need to consider the circumstances of the particular case._ The expression is not one, in my opinion, which should be used with a jury, unless a careful explanation of what it means is given. There is a risk that jurors would not understand the expression, unexplained.

I conclude that s 34CB(1) abolishes the duty to warn a jury, along the lines indicated in Crampton, by reference to the adverse impact on the defendant's ability to defend a charge, attributable to the passage of time. The duty to warn might have arisen solely from the passage of time or from that, in some cases, other particular circumstances of the case. The obligation arose only when the accused was at a forensic disadvantage attributable to the passage of time. The abolition of that obligation leaves open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay. But a trial judge should not use this as a means of resurrecting the Longman warning in another form. It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person.

Section 34CB(2) creates a new affirmative obligation, to be discharged against the background that I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered 'a significant forensic disadvantage'. This is a decision for the trial judge.

It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused_. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant_. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost_. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so._ ... The judge will have to consider each of the aspects of forensic disadvantage identified by McHugh J and by Crennan J: that is, the difficulty of testing the complainant's evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.

If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.

The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. ...

128 In my opinion, it was necessary for the judge to give directions of the kind embraced by counsel's 'six points'.[40] With respect, the 'six points' were not satisfactorily embodied in the directions that the judge did give, those directions being inadequate to ameliorate the disadvantage suffered by the appellant.

129 Taking the absence of a medical examination as an example, the judge should have done more to alert the jury to the palpable disadvantages to the appellant's capacity to defend himself. The complainant had said that the offending occurred in 1998, when she was 10 or 11 years old. After the first occasion of digital penetration, she went home and told her mother that her vagina was sore. Her mother had her take a shower. After the shower, the complainant's mother checked her vagina. It was inflamed. The complainant was 'confident' that her mother took her to the doctor the next day. No evidence was, however, called from any doctor who treated her at that time (although Dr Alan Underwood, who saw the complainant on 12 occasions between 1994 and 1996 gave evidence that on one occasion he had treated her for vulval irritation for which he could find no cause). In these circumstances, it would have been appropriate to tell the jury - although no particular form of words was required[41] - that the absence of evidence from the doctor whom the complainant consulted in 1998 meant that the defence was deprived of the ability to test the truthfulness and reliability of the complainant's account; and in particular, whether the evidence might have failed to support her account. Further, since evidence of a medical examination would have fixed the date of the alleged offence with some certainty, the appellant was deprived of any chance of raising an alibi, an opportunity that might have been available to him had the time of the complainant's medical consultation been identified with a modicum of precision. Had a complaint been made at the time of the medical examination, the appellant would have had the opportunity to explore the details of the allegations soon after they were said to have occurred. That opportunity was lost to him. These factors - alone or in combination - meant that the appellant was reduced to a simple denial, without the means to test the complainant's account effectively. The jury should have been directed to take these disadvantages into account - and to take care as a result - when considering the evidence of the complainant.

130 Features of the kind I have identified were not, in my view, adequately embodied in the judge's directions, which, as I have said, should have inhered for the appellant's benefit. Although the disadvantages to the defence case may have been obvious to the jaded eye of an experienced criminal lawyer, they would not have been obvious to the ordinary juror. The appellant's complaints concerning the deficiency of the directions made under cover of ground 2 are well-founded.

131 That is not the end of the matter, however, since the respondent sought to rely on the failure of the appellant's counsel at trial to take exception.

132 After the judge had delivered his charge to the jury - including the impugned forensic disadvantage direction - counsel for the applicant did not take distinct exception by insisting that a more robust direction be given. Although his failure to do so is probably explicable on the basis that he had earlier made full submissions on the necessary content of the forensic disadvantage direction, and may not have wished to seem impertinent - the judge did, after all, tell counsel that there was no reason to repeat previous arguments since he took 'those arguments to stand'[42] - nonetheless counsel should have persevered, and pressed an appropriate exception. As McGarvie J said in Garth:[43]

The usual principle is that a misdirection that could have been cured if an exception had been taken cannot found a successful application for leave to appeal if the exception was not taken: R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643 at 662; [1986] VicRp 64; (1986) 21 A Crim R 135 at 155. Here an exception was taken, but the passage last quoted did not meet the exception and no further exception was taken. It should have been. Counsel should politely but firmly insist on an exception until the judge redirects or states that no redirection will be given.

133 In the circumstances, however, I am of the view that the failure of counsel to press an exception should not deprive the appellant of success on the appeal. The failure of counsel to take further exception is readily understandable. Senior counsel had, in effect, already told the judge what was required, and the judge had indicated that counsel need not repeat what had been said.

134 Ground 2 should be upheld and the appeal allowed. I would order a retrial.

Ground 1A - Asserted fact 'fresh in the memory'

136 Had they been the subject of objection, the complainant's statements to her boyfriend could not, in my opinion, properly have been seen to be admissible under s 66 of the Evidence Act 2008, since they could not correctly have been characterised as being 'fresh in the memory' at the time that they were made. To that extent, I specifically agree with the views expressed by Weinberg JA.[44]

137 Ground 1A cannot be upheld, however, since it is plain that counsel made a deliberate forensic choice not to challenge the admissibility of the impugned statement. In those circumstances, it is impossible to conclude that there has been a substantial miscarriage of justice.

138 During the course of pre-trial discussion concerning the admissibility of a number of previous representations made by the complainant, senior counsel for the appellant - very experienced in trials of sexual offences - indicated unequivocally that he had no objection to the evidence of the complainant's boyfriend as set out in his statement tendered at committal.[45] Somewhat enigmatically, senior counsel sought to 'expressly state' that the defence did not agree that Harper JA had 'correctly expressed the law' in LMD;[46] but, as I have said, took no objection to the admissibility of the impugned parts of the proposed evidence.

139 Counsel for the respondent submitted that the course adopted by the appellant's counsel at trial might be seen to be the product of a rational forensic decision. That submission must be accepted. Indeed, it seems to me that defence counsel may have wished to take advantage of the version given to the complainant's boyfriend, which, on one view, differed from her version given at trial. In particular, the boyfriend's statement recorded that the complainant had told him that '[the appellant] would put his hands down her pants, [the appellant] would play with himself', in circumstances where the complainant had not previously alleged that the appellant had concurrently touched himself whilst indecently touching her. To my way of thinking it was a strategy that carried a significant element of risk, but it was a strategy that was open to a competent advocate.

140 Generally speaking, a person in the appellant's position is bound by the forensic decisions of counsel taken on his or her behalf.[47] In circumstances where counsel has made what appears to be a rational forensic decision on his or her client's behalf, it is difficult for an appellate court to conclude that 'as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice'.[48] I cannot do so in this case.

141 In light of that conclusion, I am able to resist the invitation issued by the appellant's counsel to consider whether LMD[49] and XY[50] were wrongly decided.[51] I observe, however, that I would not hasten to embrace the reasoning in either case. Subsections 66(2) and 66(2A) focus attention on the relevant 'asserted fact',[52] since it is the 'occurrence of the asserted fact' that must be 'fresh in the memory of the person who made the representation' at the time when the representation was made. Whether the asserted fact alleged is fresh in the memory of the person making the representation is to be determined by taking into account all matters that the court considers relevant to the question, including the nature of the event concerned; the age and health of the person making the representation; and the period of time between the occurrence of the asserted fact and the making of the representation.

142 Subsection (2A) was inserted into s 66 'as a response' to Graham,[53] in which Gaudron, Gummow and Hayne said:[54]

The word 'fresh', in its context in s 66, means 'recent' or 'immediate'. It may also carry with it a connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time') but the core of the meaning intended, is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.

143 Upon the assumption that consideration of whether a memory is 'fresh' is no longer to be confined to the time that has elapsed between the occurrence of the asserted fact and the representation, nonetheless the effluxion of time will remain relevant (and, in some cases, decisive). Given that s 66(2A) invites a more flexible approach, however, to the concept of 'freshness'[55] - and invites consideration of factors beyond time - it may be that greater attention will need to be given to the subjective features of the person making the representation than was hitherto the case.

144 The precursor to the enactment of s 66(2A) was the joint report of the Australian Law Reform Commission, NSW Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, published in late 2005 ('ALRC 102'). When discussing the 'fresh in the memory' test in s 66, the report made extensive reference to psychological research on memory.[56] In light of that research, it was concluded that the assessment of 'freshness' should not be confined to the time which elapses between the occurrence of the relevant event and the making of a representation about the event.[57]

145 Whether a memory is 'fresh' ought not, however, be permitted to become an abstruse concept. The experience of the Courts is, I think, reflected in the following passage from Longman,[58] where McHugh J remarked:[59]

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 ...

146 Hence, given that determination of 'freshness' of memory is not confined simply to temporal proximity, when assessing whether an asserted fact is 'fresh in the memory', consideration might also be given to whether the particular memory can be said to be free of factors which potentially might taint or influence it (such as - to use a non-exhaustive example - psychological counselling or therapy).

147 As I have said, the asserted fact in this case could not properly have been characterised as fresh in the complainant's memory. Had objection been taken, the evidence of the relevant representation could not properly have been admitted in reliance on s 66. But given that counsel did not object, and that failure might have been the product of a rational forensic decision, ground 1A cannot be upheld.

148 I have had the considerable advantage of reading, in draft, the reasons of the other members of the court. Weinberg JA has concluded that the appeal should be dismissed, rejecting each of grounds 1A, 1B, and 2. Priest JA has not joined in that outcome, being of the view that ground 2 should be upheld. Priest JA has agreed with Weinberg JA's reasons for rejecting ground 1B and, while agreeing that ground 1A cannot succeed, has added some observations of his own.

149 I would allow the appeal and order a retrial, as I agree with Priest JA, for the reasons that he gives, that ground 2 should be upheld.

150 As for the other grounds, I would reject ground 1B for the reasons given by Weinberg JA, with which I agree. I also agree that ground 1A cannot succeed for the reasons explained by each of Weinberg JA and Priest JA, to which I cannot usefully add.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

[2] Leave to appeal in respect of two further grounds was refused. The appellant did not elect to renew his application for leave in respect of those grounds before this Court.

[3] The indictment alleges that the offending took place between 21 March 1998 to 20 March 2000. However, at trial, the complainant testified that the offending took place in 1998.

[4] [2010] NSWCCA 181; (2010) 79 NSWLR 629 ('XY').

[5] Ibid 643-4 [79] (citations omitted).

[6] [2012] VSCA 164 ('LMD').

[8] For reasons which are not relevant to this appeal, evidence concerning those conversations and denials ultimately was not put before the jury at the appellant's trial.

[10] Some of the arguments put by trial counsel mirror arguments made by the appellant before this Court. For example, trial counsel had pointed to the complainant's previous denials of sexual abuse in 2004 and 2009 as matters which bore upon the 'fresh in the memory' question.

[11] In that regard, the Crown joined issue with the appellant's characterisation of the relevant representations as being 'vague' and 'lacking in detail'. The Crown submitted that the representations were essentially consistent with the evidence given by the complainant at trial.

[12] [1998] HCA 61; (1998) 195 CLR 606 ('Graham')

[15] [1999] NSWCCA 189; (1999) 47 NSWLR 267 ('Adam').

[16] [2000] NSWCCA 49.

[17] [2014] VSCA 269 ('Clay').

[20] The appellant did not challenge the finding of admissibility under s 66 before this Court; the appeal was limited to the question of admissibility under s 137.

[22] PT v The Queen [2011] VSCA 43.

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

[25] PT v The Queen [2011] VSCA 43 (Maxwell P, Buchanan and Weinberg JJA). His Honour drew attention to [22] and [23]-[45], especially [38]-[45].

[27] Greensill v The Queen (2012) 37 VR 257.

[31] See Xypolitos v The Queen [2014] VSCA 339, [32], [44] (Redlich, Tate and Priest JJA) ('Xypolitos').

[32] R v Cassebohm (2011) 109 SASR 465 ('Cassebohm').

[33] Section 34 CB provides:

34CB - Direction relating to delay where defendant forensically disadvantaged

(1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.

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

(2) If, in a trial of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must -

(a) explain to the jury the nature of the forensic disadvantage; and

(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.

(3) An explanation or direction under subsection (2) may not take the form of a warning and -

(a) must be specific to the circumstances of the particular case; and

(b) must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.

[34] Cassebohm, 473 [24]. See also R v Thomas [2015] SASCFC 55, [71] (Lovell J, Sulan and Stanley JJ agreeing)

[35] Doggett v The Queen (2001) 208 CLR 343, [51].

[36] Tully v The Queen (2006) 230 CLR 234, [181].

[38] Crampton v The Queen (2000) 206 CLR 161, [45] (Gaudron, Gummow and Callinan JJ).

[39] Cassebohm, 474-5 [27]-[32] (emphasis added).

[41] Save, of course, that the judge could not direct the jury that it would be 'dangerous or unsafe' to convict: Crimes Act 1958, s 61(1B); Evidence Act 2008, s 165B(4).

[43] R v Garth (1990) 49 A Crim R 298, 305. See also ss 10 and 11 of the Jury Directions Act 2013 and Xypolitos [25]-[26], [32].

[46] LMD v The Queen [2012] VSCA 164.

[47] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161; 80 ALJR 614; Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531. See also R v Arundell [1998] VSCA 102; [1999] 2 VR 228, 249-50, [53]-[55]; R v Mateiasevici [1999] VSCA 120; [1999] 3 VR 185, 196, [37]; MB v The Queen [2012] VSCA 248, [45]; Greensill v The Queen (2012) 37 VR 257, 271 [55].

[48] Criminal Procedure Act 2009, s 276(1)(b).

[49] LMD v The Queen [2012] VSCA 164.

[50] R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629.

[51] See also ISJ v The Queen (2012) 38 VR 23; Clay (a Pseudonym) v The Queen [2014] VSCA 269.

[52] As 'asserted fact' is one 'that it can reasonably be supposed that the person intended to assert by the representation': Evidence Act 2008, ss 59(1) and (2)

[53] Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606.

[54] Ibid 608 [4]. See also 614-5 [34] (Callinan J).

[55] Stephen Odgers offers an interesting suggestion in Uniform Evidence Law in Victoria (2nd Ed), at [1.3.2320], fn 259:

Some limited assistance might be gained by analogies to such objects as fruit. A fruit will be 'fresh' when it is in substantially the same condition as when picked. Usually this will depend on the passage of time, but certain techniques might be utilised (for example, freezing) in an attempt to maintain 'freshness'. Different types of fruit will remain fresh for different periods of time and in different conditions. However, fruit that appears 'fresh' may not be, in fact, 'fresh'. Fruit that looks in good condition, or even tastes good, may still not be 'fresh'.

[57] ALRC 102, [8.120], [8.122]-[8.124].

[58] Although I note that his Honour made reference to psychological research: I M L Hunter, Memory (1966, Rev. ed.).