Doggett v R
43 In Doggett v R (2001) 75 ALJR 1290 the complainant alleged seven sexual offences against the accused, her stepfather, in the years 1979-1986, during which time she was between 8 and 15 years of age and the accused was between 36 and 43 years of age. Five of the allegations were of indecent dealing and two of attempted rape. The complainant first complained of the alleged incidents shortly after the seventh one, but that complaint was only of "touching". She said that in 1987 she complained to a school friend, Ms A, of touching and of attempted sexual intercourse; the school friend denied receiving the complaint. In 1990 she made a complaint to her mother of attempted sexual intercourse. In February 1998 she made a statement to the police. In March 1998 she tape recorded a conversation between herself and the accused in the course of which he said things capable of being treated as admissions.
44 The complainant's mother said that after receiving the complainant's first complaint, she and her son confronted the accused with it, but she could not remember whether he admitted or denied the allegations, and the son did not say that the accused made any admissions. A little later she put the allegations again, and the accused responded in a way which was capable of being treated as an admission.
45 The accused's defence was that the complainant was sexually precocious, that the complainant had engaged in sexual banter with him, and that "there were other times when the two engaged in boisterous physical conduct with sexual undertones". He said the contents of the tape recorded conversation referred to the sexual banter.
46 Gaudron and Callinan JJ set out the contentions of the appellant about why a Longman direction was needed as follows (at [43]-[45]):
"First, there is the fact that the complainant was only eight years old when the first and second offences are alleged to have been committed. Whilst it may be accepted that, of course, in adulthood people may have vivid and clear recollections of events which occurred when they were children, the evidence in this case itself demonstrates the truism that accounts of events remote in time need to be carefully scrutinised. The complainant's evidence was that the first two offences alleged took place at the residence which her mother, her family, and the appellant were occupying in late 1979 or early 1980 during a period when her mother was in Brisbane for medical treatment. In fact, other material before the court fairly conclusively proved that although her mother was treated in Brisbane in February 1980, the appellant did not move into the family residence until June 1980. In his reasons for judgment, Pincus JA suggested an explanation for the discrepancy, that 'the appellant looked after the complainant and her brothers, on the occasion in question, some time before moving into the complainant's mother's house on a permanent basis'. That suggestion will need further examination. With respect to the third count, the appellant pointed out that its timing was related by the complainant to the occasions of the first two counts and was, it was argued by the appellant, therefore subject to the same criticisms as the first two counts.
The other matters which, the appellant submitted, brought the case within Longman were the young age of the complainant when the offences were alleged to have occurred, the long period that elapsed between the first, subsequent and final 'complaints', and the conflict between the complainant and Ms A regarding the making of one of them to her.
The principal challenge to the reasoning of the Court of Appeal, however, was made in a submission that their Honours (wrongly) regarded the availability of corroboration as extinguishing the need for a Longman direction. Although the submission overstates the position that was adopted by the Court of Appeal, Pincus JA did conclude that the nature of the corroboration provided here, the responses in the telephone conversation, made a Longman direction inappropriate. McPherson JA, who agreed with Pincus JA, said in addition that the responses of the appellant during the conversation disclosed an awareness of the events of which the complainant was speaking and an ability to recollect them adequately."
47 Gaudron and Callinan JJ held that there was an obligation to give a Longman direction, and that the corroborative evidence did not relieve the trial judge of that obligation, for the following reasons (at [47]-[54]:
First, the complainant's evidence with respect to the circumstances surrounding the first three counts made the point that the complainant's recollection of some matters was, to say the least, questionable.
Secondly, the suggested explanation for the complainant's assertions as to the approximate times of the first two offences is not one, with respect, which strikes us as very likely. It was not suggested as an explanation by the trial judge in his summing up on these counts. If it had been, there and then it would probably have drawn attention to the need for a direction of the very kind for which Longman stands.
Thirdly, there was evidence from an apparently independent source, Ms A, categorically denying sworn evidence by the complainant that she had told Ms A some years before that she had been sexually touched by the appellant.
Fourthly, and inevitably, the respondent was obliged to some extent to shift the basis of the prosecution when the discrepancy as to dates with respect to the first two counts, and consequently if less significantly, to the third, emerged.
Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, of more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.
This is made clear by the joint judgment (Gaudron, Gummow and Callinan JJ) in Crampton v The Queen:
[They quoted [45], which was summarised and partly quoted in [38] above.]
Sixthly, as we have already indicated, the corroboration was capable of establishing some undefined sexual molestation, probably improper, but not necessarily criminal in the respects alleged in the counts, and therefore not of such a nature as to relieve the trial judge of a duty to direct the jury in terms of Longman as explained in the passage from Crampton set out above.
Seventhly, the approach of the Court of Appeal involved to some extent an inversion of reasoning. The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary. That exercise should more appropriately be carried out in the overall assessment of the case, if and after error has been established, to enable the Court to decide whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied."
48 Kirby J said that Longman warnings should be given wherever delay caused a serious forensic disadvantage to the accused, and, in the case of long delay, wherever the dangers described by Deane and McHugh JJ in Longman v R existed. He agreed that the need for a warning was not nullified by the existence of corroboration (citing R v Aristidis [1999] 2 Qd R 629 at [11]-[16]). He said the need was not nullified by the fact that the prosecution case was strong or supported by admissions.
49 It follows from the majority opinions in Doggett v R that delay coupled with forensic disadvantage is sufficient to create an obligation to give a Longman warning, and it follows from the majority opinions in Crampton v R together with that of Kirby J in Doggett v R, that delay capable of creating the phenomena described by Deane and McHugh JJ in Longman v R is also sufficient.
50 Gleeson CJ and McHugh dissented in Doggett v R on the ground that the accused's counsel had not asked for any warning, and that to have done so would have caused the jury to concentrate on the existence of the corroboration in a manner injurious to the accused's interests. (There is nothing far-fetched about this suggestion: it was for that very reason that counsel asked for the warning not to be given in R v Arundell [1999] 2 VR 228.) Further, Gleeson CJ said that to warn about the lack of safety in convicting on the uncorroborated evidence of the complainant would have been pointless since it was corroborated. McHugh J also said that it was crucial to Longman v R that the jury were being asked to convict on uncorroborated evidence of events twenty or twenty-five years earlier while the complainant, then a young child, was asleep or waking from sleep. The majority statement in Longman v R about the lost forensic opportunities available to the accused had to be read in the light of the general circumstances of the case and in any event were obvious to juries. Crampton v R was in the same category.
51 It is obvious that there are sharp divisions within the High Court about Longman warnings. Whatever the merits of the opinions of Gleeson CJ and McHugh J, they are dissenting opinions.