The need to make a Longman Direction in relation to delay - 3(iv)
71 The appellant submits that her Honour failed in the summing-up to comment on the need for caution because of the delay in complaint. Specifically, it is submitted that warnings in the present matter should have been given to alert the jury to two aspects of potential difficulty. The first was the difficulty of testing the allegations themselves, given the wide time span into which the allegations fitted. The second aspect was that of the delay itself. It was conceded that the complaints were not "ancient". It was submitted nonetheless that it would have been appropriate to alert the jury to the possibility of difficulties arising in situations where there is no recent complaint.
72 The Crown, on the other hand, urges that nothing occurred in the trial to indicate that the appellant encountered any particular difficulties in testing the evidence of the prosecution or adducing evidence in defence. Nor, at the hearing of this appeal, was any matter so identified. In relation to the aspect of delay in complaint effecting the credibility of the complainant, it is submitted that although there was no "immediate complaint" the delay in complaint was not of a kind requiring her Honour to make a comment about delay affecting credibility. Finally, it was submitted that no comment or warning was sought by trial counsel concerning the matter of delay in complaint.
73 In trials of sexual assault, where delay in raising complaint has arguably disadvantaged the accused in his ability to defend himself, the High Court has made it clear that there may arise a need for either comments or warnings to address consequent issues prejudicial to the defence case. In Longman v The Queen (1989) 168 CLR 79, in the joint judgment of Brennan, Dawson and Toohey JJ, their Honours (at 90-91) stressed the importance of warning the jury, in an appropriate case, that the accused may have lost the means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Indeed, in a particular case, the warning is imperative and should go so far as to tell the jury it would be dangerous to convict on the complainant's evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy. It is not sufficient, in such a case, to tell the jury simply to consider the relative credibility of the complainant and the appellant without either a warning or comment related to the factors relevant to the evaluation of the evidence.
74 More recently in Crampton v The Queen (2000) 75 ALJR 133, the High Court reiterated and emphasised these principles. In the joint judgment of Gaudron, Gummow and Callinan JJ, their Honours, referring to the relevant passage from Longman, noted that it distinguished between two different sets of circumstances, those which might well invite and would generally require, comment; and those in respect of which a warning would be imperative.
75 Their Honours then referred to and quoted passages from the judgment of Deane J at 95-96; and McHugh J at 108-109 in Longman. Their Honours said at 141 para 45: -
The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. 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. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman : the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion."
76 The Longman principles have also been considered by this Court. In R v Johnston (1998) 45 NSWLR 362 at 375 Spigelman CJ analysed circumstances which may give rise in a particular trial to the need for a trial judge to give either a comment or warning of the kinds specified in Longman. His Honour's analysis stressed the fact that the need for, and content, of any such comment or warning would depend on the circumstances of the case.
77 The practical application of these principles may be seen, for example, in R v Kennedy (2000) NSWCCA 487 (at paras 62-65); R v AT (2000) NSWCCA 342 at paras 62-69; R v King (2000) NSWCCA 507 at paras 71-74. The circumstances of the present trial were that the complainant gave evidence that she had told her friend Dianne of the incidents at Shalvey a relatively short time after the occurrence. At the most, it was a matter of months only. She did not report the incidents to Patrick Reid or the police until December 1999, with the consequence that a period of some four years elapsed between the first incident and its report to authorities. The trial itself came on quite quickly, about six months later in May 2000.
78 It does not seems to me that the passage of some four years in the circumstances of this case, particularly given the absence of any suggestion in the conduct of the trial to suggest that any specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, necessarily gave rise to an imperative that a warning of the more severe kind referred to in Longman was required. The delay which had occurred in Longman was more than twenty years. The delay was about twenty years in Crampton. By comparison, having regard to the facts and circumstances of the present trial, I do not consider that there was a need for a warning that it would be dangerous to convict on the evidence of the complainant alone.
79 More importantly, appeal counsel was unable to point to any specific matters which conveyed, with conviction, the proposition that specific difficulties were encountered by the appellant in the course of the present trial. It is true that the written submissions refer to the possible difficulty of testing the complainant's allegations given the lapse of a period of years. The only reference I have been able to find to any factual matter in the evidence, possibly relevant to such a potential difficulty, appears at page 22 of the transcript where the complainant was asked whether she was able to recall that the applicant was not living with the family at Shalvey for a period after 23 November 1995. The complainant said she was unable to remember whether this was so or not. This suggestion does not appear to have been pursued by trial counsel in any way through out the remainder of the trial. Indeed, the essential nature of the defence case was that the complainant had fabricated her evidence as a consequence of a family vendetta against the appellant. For these reasons, I do not consider that her Honour fell into error in failing to give, in the circumstances of this case, a Longman direction.
80 I have, however, indicated earlier in these reasons that one ground has been made good. The basis of the successful ground, and the consequent need for a new trial, are discussed later in this judgment. It is sufficient to say in relation to any new trial, that, the rejection of this ground does not mean, depending on the evidence and the issues arising in the course of such trial, that a comment or warning of the lesser kind addressed in Longman and Crampton may not be appropriate. That will be a matter essentially for the trial judge who will be in the best position to assess having regard to the course of the trial, whether such a comment or warning is required.