Counts 5 & 6 : Prompt complaint.
58 The jury, according to the Crown, was warned. His Honour said, "It is the law that late complaint in this particular case has deprived Mr Perez of the ability to test (the complainant's) truthfulness by reference to recent events" (SU: 11). "Recent events", in that context, meant "contemporaneous events". The jury had already been told of the need for caution ("You should examine and scrutinise her evidence with great care.") shortly before, although not immediately before. His Honour described particular difficulties which Mr Perez faced caused by delay. According to the Crown, the warning his Honour gave was stronger than that in other cases where there had been comparable delay, such as DPW v R [2006] NSWCCA 295; (2006) 164 A Crim R 583 (where the delay was one month short of four years).
59 Finally, the Crown emphasised that counsel for Mr Perez made no complaint at the trial. Counsel was in a much better position to judge the "temperature" of the trial and the need for further directions. Indeed, counsel said to his Honour during the summing up that he was satisfied with the Longman directions that had been given. Rule 4 applies. There was, according to the Crown, no miscarriage. Leave should be refused.
60 Three issues should be examined:
· First, was a Longman warning necessary having regard to the delay in respect of counts 1 to 4A?
· Secondly, assuming a warning was required, or required in respect of one or more counts, what needed to be said?
· Thirdly, having regard to these requirements, did the summing up involve error?
61 Dealing with the first of these issues, it should be noted that the Longman warning was formulated in the context of gross delay, that is, delay of more than 20 years (Longman v The Queen (1989) 168 CLR 79). In the cases that followed, where the High Court re-emphasised the importance of the warning, the delay in each case was at least significant (Crampton v The Queen (19 years delay) [2000] HCA 60; (2000) 206 CLR 161; Doggett v The Queen (12 to 19 years delay) [2001] HCA 46; (2001) 208 CLR 343). The court emphasised that a warning was important because the disadvantage to the accused may be obvious to a judge, who had the benefit of the accumulated experience of courts, but not obvious to a jury (Longman (supra) at 91 (Brennan, Dawson and Toohey JJ)). The jury therefore needed to be told of that experience.
62 It is worth pausing, momentarily, to consider the nature of the disadvantage to the accused where there is significant delay. In Crampton v The Queen, Gaudron, Gummow and Callinan JJ said this: (at 181)
"45. … An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. …"
63 In R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89, the following was said: (at 138)
" The potency of cross examination as a means of exposing unreliable evidence diminishes significantly with time. In Saporen (1939) 205 Minn 358 (quoted in McCormick on Evidence , 2nd Ed (1972), page 602), the following was said:
'The chief merit of cross-examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is the immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others. ...'
The method of cross examination is an attack upon detail, exposing contradictions and unreliability. If the trial is undertaken within a reasonable time, the excuse for unreliability of fading memory is unlikely to be persuasive. However, where the trial is delayed, the accused is disadvantaged in two ways. First, the testimony is likely to be more vague, bereft of the detail which may be used to expose unreliability. Secondly, that absence of detail, and any contradiction that may happen to emerge, can the more easily be explained by reference to the passage of time. The jury therefore is more likely to be forgiving of shortcomings in the complainant's evidence, especially in the context of charges which arouse strong feelings of prejudice or revulsion: (compare Kirby J in Doggett (at 440, [118]))."
64 In DRE v The Queen [2006] NSWCCA 280; (2006) 164 A Crim R 400, the delay was a matter of months on some counts and up to three years on others. Spigelman CJ described the case as "at best a borderline case for a Longman warning" (at [4]). In DPW v R [2006] NSWCCA 295; (2006) 164 A Crim R 583, the appellant was convicted of aggravated sexual assault upon a 12 year old girl. At the time of the alleged offence, the appellant had a relationship with the girl's mother and was living in the same house. It was the Crown case that the offence had taken place on 25 October 2000 after the complainant had attended a school dance. She said the appellant came into her room, took off her shorts, and as he did so inserted his finger into her vagina. She did not, however, tell her mother until March 2004. There was further delay before the allegation was brought to the appellant's attention. The delay was one month short of four years. The trial judge purported to give a Longman warning. It was submitted by the appellant that the direction fell so far short of the requirements of Longman that there had been a miscarriage of justice. The Court (Hunt AJA, Barr and Johnson JJ), however, dismissed the appeal. It approached the matter upon the assumption that a Longman direction was required. However, the extent of the delay was material to the terms of the warning which was necessary. I will return to the Court's reasoning when considering "the second issue", that is, the content of the warning.
65 Shortly after DPW v R, the High Court handed down its decision in Tully v The Queen [2006] HCA 56; (2006) 167 A Crim R 192. It was an appeal against conviction in respect of a number of sexual offences where the complainant was aged between nine and ten years at the time of each alleged offence. She had not complained for some two and a quarter years. The trial was then delayed for several years so that it took place four to five years after the conduct giving rise to the charges. No Longman direction was sought, nor given. On appeal, it was argued that the particular facts, involving such a young complainant, required a warning both in terms of Longman v The Queen (1989) 168 CLR 79 and Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162. The majority (Callinan, Heydon and Crennan JJ) dismissed the appeal. Kirby and Hayne JJ would have allowed the appeal, although Kirby J agreed that a Longman warning was not required. Callinan J said this: (at [132])
"[132] … I am unable, however, to find that there were facts or circumstances in this case, or in the conduct of it, and having regard particularly to the appellant's failure to ask for it, that demanded that a Longman direction be given. … "
66 Crennan J (Heydon J agreeing) emphasised that, in circumstances of delay, not being gross delay, the calculus for determining whether a warning was required was rather more complex. Her Honour said this: (at [179]-[180])
"[179] Not unnaturally, the practical application of Longman in some trial situations has not always proved easy, particularly in respect of clarifying how great a delay might give rise to an imperative to give a warning. As stated in Doggett this is not a question purely of mathematical precision. Further, there is a distinction to be made between an inexplicable delay in reporting (as in Robinson ) and an explicable delay as here, which may elicit comment but not necessarily require a warning ( Longman ). Intermediate courts of appeal have essayed various distillations of the principles to be applied to particular cases at hand.
[180] As the reasons of the majority in Longman make clear, it is not imperative to give a warning because the circumstances include allegations of sexual misconduct or because the complainant is young at the time of the events alleged (or at trial) or because there is some delay in complaint to, for example, a mother. While the purpose of a warning in accordance with Longman is to ensure a fair trial and to avoid a miscarriage of justice, the purpose of the relevant legislation is to ensure balance in jury instruction, without proscribing warnings when it is in the interests of justice to give them."
(footnotes omitted)
67 Her Honour added: (at [184])
"[184] No forensic disadvantage of a kind which a jury may not appreciate arises automatically because of delay, or because the evidence is uncorroborated evidence of sexual misconduct, or because of the complainant's youth."
(footnotes omitted)
68 Part of the explanation for the delay was that the appellant had threatened the complainant on a number of occasions, even showing her guns. The complainant said that, but for these threats, she would have told her mother earlier (at [183]). Crennan J, in this context, concluded her judgment as follows: (at [186]-[187])
"[186] There was no forensic disadvantage to the appellant, arising out of the explained delay, which would have been palpable or obvious to the trial judge, but would not have been apparent to the jury. The concatenation of circumstances, being the age of the complainant at the time of the offences and at trial, the sexual nature of the offences, the explained delay between the offences and report, and trial, and inconsistencies in the complainant's evidence, could all be evaluated by the jury in the light of their own experiences. Therefore, it was not necessary for the trial judge to give a warning to avoid a miscarriage of justice.
Conclusions
[187] I agree with Callinan J that there was nothing in the circumstances of this case which made it imperative for the trial judge to give a warning in accordance with Longman . I also agree with his Honour that there were no errors in relation to the trial judge's directions which could have led to a miscarriage of justice and I agree that the appeal should be dismissed."
69 Turning to the minority judgments, Kirby J believed that there was a need for a warning in accordance with Robinson v The Queen (which was concerned with a complaint by an eight year old child). On the question of a Longman warning, his Honour said this: (at [60])
"[60] Inapplicability of Longman warning : In this appeal, I would not have disturbed the jury's verdicts, or the convictions that followed, on the basis of an omission on the part of the trial judge to give a warning to the jury of the kind required by Longman v The Queen . That is a decision that concerns (as many others have) the particular problem, in certain cases of complaints of sexual offences, of very long delays between the time of the alleged offences and the first complaint and subsequent trial. Such was not this case. Longman is thus a distracting red herring. Whatever directions were sought at trial, at the hearing of the appeal in this court the appellant's counsel agreed that the appeal was not about a Longman warning. Accordingly, Longman , as such, was not an issue before this court."
(footnotes omitted)
70 Hayne J likewise believed a warning was appropriate. He said this: (at [89])
"[89] … What Robinson , and Longman , hold is that there are cases where there is a perceptible risk of miscarriage of justice if the jury is not warned of the need to scrutinise the evidence of a complainant with care before arriving at a conclusion of guilt. … "
(footnotes omitted)
71 His Honour added the following: (at [90])
"[90] Lengthy delay in making a complaint is often an important reason for concluding that a warning should be given. But as Robinson shows, delay measured in decades (as it was in Longman ) is not the only reason for concluding that it is appropriate in the interests of justice to warn a jury of the dangers of acting on the uncorroborated evidence of a complainant. That is why the convenient shorthand description of a warning as a ' Longman direction' will mislead if it is understood as requiring that a warning be given only if the facts of the instant case are generally similar to those that were considered in Longman ."
72 Approaching the matter in the manner suggested by Crennan J, the delay here was relatively short, and akin to that in Tully (two and a quarter years) and DPW v R (almost four years). Whilst the explanation for the delay was not as dramatic as in Tully v The Queen, an explanation, nonetheless, was given. The complainant said that the appellant had asked her to remain silent, which she did for four years until she wrote the note to her brother. When interviewed by the police, she said this: (p26)
"Q217 Did you tell anyone what happened this first time?
A. No, Afterwards, like before he left, he, he always tells me not to tell anyone that he was there, so I never tell anyone that he was there. Because I like to keep my promises."
73 Was there disadvantage arising from delay which would not have been obvious to the jury? The appellant, in submissions, argued that there had been prejudice in various ways (supra at [54]). However, I am not persuaded there was disadvantage, apart from the inability to carry out medical examinations in a timely way, a matter which his Honour emphasised. The appellant had employment records which, on his case, showed the pattern and intensity of his hours. There was no evidence that he had attempted to obtain the complete employment records on subpoena, only to find that they had been destroyed or were unavailable because of delay. It was the Crown case that the offences (except in respect of counts 5, 5A and 6) were committed when the appellant was alone in the house with the complainant. It was the defence case that the complainant was deliberately fabricating her account. Who was living in the house was relevant to opportunity, but of limited importance, and certainly not determinative. The complainant, her mother and brother, readily acknowledged in cross examination that there were others living in the house at various times. No-one else from the house was called. There was no evidence of an attempt to locate those who had lived in the house, who, through delay, were no longer available. More precise information was unlikely, whenever the prosecution was brought. Further, it was unsurprising that the complainant was unable to identify a particular date in respect of each incident, apart from the last. On the Crown case, the offences were committed by an adult against a child, who had been told not to tell anyone. They were committed in the context of a sexual relationship, where there were other uncharged acts (cf Crennan J in Tully v The Queen (supra at [187]). Such prejudice as there was arising from delay was either obvious or the subject of a specific direction (in the case of the medical examination) by his Honour (SU: 11) (supra at [48]) and (SU: 22) (supra at [51]).
74 It is questionable, in these circumstances, whether a Longman warning was required. Nonetheless, the parties and the trial Judge approached the matter upon an assumption that such a direction was required. I will therefore make the same assumption.
75 I pass to the second issue, the content of the warning. The formulation by the High Court in Longman v The Queen (supra) was analysed by Sully J in R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 (Wood CJ at CL and Dowd J agreeing), where the following was said: (at 273)
"… first, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly, that it would be, therefore, dangerous to convict on that evidence alone; thirdly, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and sixthly, that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction."
76 In R v WSP [2005] NSWCCA 427, Spigelman CJ pointed out that Longman was not a statute. The warning must be fashioned to reflect the circumstances of the particular case. In JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187, it was said that in the years following R v BWT a number of courts in varous states had seen the need for greater flexibility in applying Longman v The Queen, that the formulation of Sully J in R v BWT would appear to allow (at [43]). In DRE v The Queen [2006] NSWCCA 280; (2006) 164 A Crim R 400, Simpson J observed that no definitive statements as to the minimum requirements of a Longman direction had yet emerged (at [59]). Barr J in DPW v The Queen (supra) said, nonetheless, that a number of comments could be made with confidence. One was that the length of the delay will affect the content and strength of the warning. His Honour said this: (at 588)
" … the charge to the jury should take into account all the relevant circumstances of the case before the jury. One circumstance will be the length of time which elapsed between the events and the accused's appreciation of the accusation. In cases of gross delay, the charge will need to be strong. It is not irrelevant that the strong warnings called for in Longman and Crampton resulted from delays approaching and exceeding twenty years. See also Sheehan v The Queen (2006) 163 A Crim R 397, another case in this Court calling for a strong direction, which was concerned with delays varying between seventeen and twenty-two years."
77 In that case, it was relevant that the trial Judge had given a "strong Murray direction" on the need for caution when examining the complainant's evidence, and that counsel then appearing for the accused had not objected, nor sought any further or stronger direction (at [33]).
78 Turning to the third issue, the adequacy in this trial of the Longman warning, his Honour (accepting the invitation of counsel for Mr Perez) characterised a number of matters as "disadvantages to Mr Perez arising from delay". For the reasons I have given, I do not believe that some of these matters were, in fact, disadvantageous or, if they were, that it was not obvious. To that extent, the directions given by his Honour were favourable. As in DPW v The Queen, a Murray direction was given, warning the jury that there was a need to scrutinise the complainant's evidence with great care. Whilst it would have been better had the Murray warning been immediately followed by a discussion of delay, and the difficulties it created for Mr Perez, no complaint was made by counsel. No further direction was sought. In my view there was, in these circumstances, no error.