R v GPP [2001] NSWCCA 493 | Case summary | Zoe

NSWNSWCCA

R v GPP

[2001] NSWCCA 493

Court of Criminal Appeal (NSW)|2001-09-26|Before: Heydon JA, Wood CJ, Carruthers AJ, Mr J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2001-09-26

Before

Heydon JA, Wood CJ, Carruthers AJ, Mr J

Catchwords

convictions quashed
new trial ordered.

Source

Original judgment source is linked above.

Catchwords

convictions quashednew trial ordered.

Judgment (148 paragraphs)

[1]

Background The appellant was tried before Gibson DCJ and a jury on 7-9 December 1998 on two counts, one of indecent assault and one of attempted rape. He was convicted on both counts. He was sentenced to a fixed term of two years in relation to the first conviction. By reason of the fact that the appellant was already serving a sentence of imprisonment, that fixed term was to commence on 15 May 2004. On the second conviction, the appellant was sentenced to a term of five years imprisonment commencing on 15 May 2004, with a non-parole period of two years. 2 This is an appeal against conviction and sentence.

[2]

General 3 The Crown case was that the complainant in 1979 or 1980, when she was about nine, lived in a small village named Canbelego. She lived with her family in a house at the edge of the village. The appellant, her father's brother, was living in the house formerly occupied by her deceased grandparents. One day the complainant and her sisters S1 and S2 were waiting outside the pub for her parents, who were drinking inside it. The appellant asked S1 and S2 to go to the pub to buy a bottle of Coke, and asked the appellant to stay behind. The appellant told her that her grandmother had a doll in the bedroom. They went into the bedroom. The complainant's evidence in chief continued: "Q. When you went into that room can you tell us what occurred as soon as you went in?

[74]

The grounds of appeal 9 These grounds were: 1. His Honour erred in law in misdirecting and/or failing to direct adequately or properly the jury in respect of the delay in complaint. 2. His Honour erred in law in misdirecting and/or failing to direct the jury adequately or properly as to the evidence of the complainant. The appellant's submissions 10 The appellant submitted that the trial judge did not give a direction in accordance with Longman v R (1989) 168 CLR 79 at 90-1 "in respect of the fact that the means of testing the complainant's evidence had been lost". 11 The appellant submitted that the case was similar to R v Roddom [2001] NSWCCA 168. In that case the Court of Criminal Appeal found certain warnings given by the trial judge to have been inadequate. In particular, at [30]-[32] Howie J (with whom Meagher JA and Sully J agreed) pointed out that in Crampton v R (2000) 75 ALJR 133 at [39] Gaudron, Gummow and Callinan JJ had said it followed from Longman v R that it was imperative to give a warning, in appropriate cases, about the effect of delay upon the ability of the accused to test the complainant's evidence. Howie J said that in relation to one passage in the summing up there was no suggestion that the trial judge had failed to bring to the jury's attention in a meaningful way the difficulties for the defence caused by the delay. But he said that the trial judge undermined what was there said by referring to the complainant's reasons for delay. Howie J also criticised the summing up because on each occasion when the trial judge directed the jury to scrutinise the complainant's evidence with care, the jury was also told that a direction of that type was given in all cases where one person makes an allegation against another. Howie J said at [36]: "In my view there was a risk in making that comment, or at least in repeating it each time the caution was given, that the jury would minimise the importance of the direction to the particular case before them." (In R v Stewart [2001] NSWCCA 260 at [139] Howie J uttered a dictum to the effect that that view was a view from which he did not retreat.) 12 In the present case the appellant submitted that the trial judge had committed the last-mentioned error by saying: "I propose to give you a direction that is given, in all cases in which the Crown case does in fact rest on the evidence of one witness." The appellant also submitted that the trial judge had failed to point out in a meaningful way the difficulties which delay in complaint had caused the defence, contrary to R v Johnston (1998) 45 NSWLR 362 at 375.

[86]

The same duty applies in criminal cases tried by jury. No direction was specified in that manner at the trial in this case. Counsel for the appellant, in the course of the hearing of the appeal, was asked several times what direction the trial judge ought to have given. The answer to the question, on the fifth occasion of asking, was: "PAPAYANNI: … he should have said that the long delay in this case has prevented the accused from having the opportunity of preparing his case properly in that he would have been able to bring witnesses to show if it was on a specific day, or within a short period of time, that he was elsewhere at the time, in the form of an alibi, and that his witnesses, if it had been brought within a short time afterwards, his witnesses' recollections would have been certain or more certain as to where he was at the particular time, and who was living in the house at the particular time between December 1979 and December 1980, and that although this matter has been held to be not absolutely necessary, that he would have been in the position that he could have brought evidence from his work place in relation to whether he was working, and he could have brought other evidence to show that he was in other places at different times. That is in relation to delay. Then in the circumstances the Judge should have said, 'In the circumstances here, having regard to all the evidence, it would be dangerous to convict unless you were convinced beyond reasonable doubt that the complainant was giving evidence - that her evidence was truthful and accurate - and that the defendant and his witnesses' explanations, if you come to the conclusion that that was a possible version of the situation at the grandfather's house, and that there was no opportunity during the period of time between December 1979 and December 1980, if it was a reasonable version that no one else was - if it is a possible version that he was never alone during that period of time, [then] you should acquit.' I would have also dealt with this question of corroboration as not being corroboration. I would have dealt with the situation in relation to the indictment which stated that it was between December 1979 and December 1980, and the complainant's evidence was that it happened when she was nine years of age or about nine years of age. She was born on 10 May 1969 and therefore if she was nine years of age at the time it was from May 1979 to May 1980, and during that period of time, from December 1979 until May 1980, [C1, C2 and G] were living in the house. Then I would have referred to the evidence of the complainant on pages 23 and 24 of the transcript to show that during that period of time those persons were living there, [C1, C2 and G] and that the complainant said that there was no other family in the house at the time that this incident occurred. Then I would have referred also to the fact of the alleged corroboration, that the girl [S1], who was born in April 1971, said in relation to this incident that it happened when she was seven years of age. That would have been April 1971 to April 1978, which was not within the period of time that the complainant alleged that this matter happened. And that the complainant herself had given evidence at page 23 of the transcript that she had not spoken to anyone else up to 1991 when she spoke to her husband, and that [S1] came forward and said that the complainant had spoken to her ten years after the event, which would in 1988 or 89, complaining in relation to the accused touching her, and her husband had given evidence that the complainant had complained to him in 1991 or about 1991, and that she had told him at that time, that is in the evidence at page 37, that she had not complained to anyone else, which would make [S1's] evidence a lie. And then I would go into the evidence of corroboration as to what she said of the incident, that the complainant said that the incident occurred when the accused had called out to her when the three children were at the park, including herself, and asked them to get a coke, that they had gone up there and - this is what the complainant said - and he then asked somebody to get a coke and the other two had gone down to the hotel to get the coke and she stayed, and that is when the incident occurred. The complainant said that she went out on the verandah after the incident and met the two sisters, [S1] and the other one, and they had a coke, and then she walked down to the hotel with them. [S1] gave evidence that she was in the house, the grandparents' house, when the accused had asked her to go down to the hotel. CARRUTHERS AJ: If I could just interrupt, what I was interested to hear from you was, as I said at the outset, what direction or warning you would have asked for in relation to the Longman/Crampton/Doggett line of authorities, and I think you have answered that. PAPAYANNI: I would have added all the other parts in relation to what was in common experience and so on. In my submission what they were saying in Longman and Doggett and so on was the fact that a class of witness was abolished, the sexual class of witness of a young person was abolished, and you treat the person - the general warning which would be given in relation to a normal situation, without specifying a particular part. If this had been a normal case in relation to an assault or something of that kind, the situation would be then that if there was one witness against one witness the Judge would say to them, 'As a matter of common sense' and would address the jury in that case and say even though the law says that you do not have to have corroboration, to put it shortly, as a matter of fact if one person alleges something against another you would look at the situation and ask yourself whether there is any confirmation to show that that person is telling the truth." 17 Had the trial judge uttered that farrago, the jury would have been placed in a much worse position than they were by the directions actually given.

[88]

This Court described the position established by s 405C(2) as follows in R v Murray (1987) 11 NSWLR 12 at 19 (a passage approved by Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Robinson v R (1999) 197 CLR 162 at [21]): "Section 405C(2) has brought about the result that women are no longer, in the eyes of the law, to be put before the juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a judge cannot draw attention to the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl's story, if it were true, nor does it preclude the judge from making such observations as he considers ought to be made about the credibility of the complainant's evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the women is entirely a matter for the jury. The fact that a judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable. There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case."

[91]

They held that the latter view was correct (at 87): "If the warning to which par. (a) is directed is a warning that it is generally unsafe to convict for any sexual offence on the uncorroborated evidence of the alleged victim (or, to put the warning another way, that it is unsafe to convict on the uncorroborated evidence of the alleged victim of the particular sexual offence charged because evidence of that kind has been shown by experience to be especially liable to fabrication), par. (a) does not affect the requirement to warn about other perceptible risks of miscarriage of justice. A warning may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence is tendered to prove. Paragraph (a) leaves that situation unaffected. Furthermore, what par. (a) abolishes is the requirement to give a warning, not a judge's discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par. (a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par. (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only." 24 They construed paragraph (b) as follows (at 88-9): "… unlike par. (a), par. (b) must relate, not so much to a warning of the general unsafety of convicting on the uncorroborated evidence of alleged victims of sexual offences, as to a warning which a trial judge might consider giving on account of the particular circumstances of the case. That is because par. (b) directs the judge to find his justification for giving 'such a warning … in the circumstances'. If the warning which may be given pursuant to par. (b) cannot be the warning referred to in par. (a), the phrase in par. (b) 'a warning … of the kind described in paragraph (a)' must be taken to mean any warning that it is unsafe in the circumstances of the particular case to convict on the uncorroborated evidence of the particular alleged victim. Construing par. (b) in that way, it prohibits in any case of a sexual offence the giving of any warning that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim unless the judge is satisfied that the particular warning is justified in the circumstances. The judge cannot be so satisfied if there is nothing in the case to require a warning other than the circumstance that proof of the offence rests of the uncorroborated evidence of the alleged victim. So construed, par. (b) first shuts the door on all warnings that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim, and then reopens it to such warnings where the particular circumstances of the case provide a justification. This construction of the section is somewhat artificial, but it is essential to avoid absurdity. If the words 'of the kind described in paragraph (a)' were to be construed so that the warnings referred to by the respective paragraphs were the same, par. (a) would comprehend a warning which might be 'justified in the circumstances'. Such a construction would accord to par. (a) a wider operation than is accorded to that provision in other States and destroy the protection afforded in appropriate cases by the requirement to give a warning unrelated to the suspicion attaching to the evidence of alleged victims of sexual offences. Paragraph (b) thus comprehends more kinds of warnings than the kind of warning to which par. (a) refers. Although a warning can be given only if the judge is satisfied that the warning is justified in the circumstances - and therefore must not be given unless, on a view of the facts reasonably open to the jury, there is an occasion for giving a warning - justification may be found in any requirement of a rule of law or practice which might apply in the circumstances other than the requirement to which par. (a) refers. If, on a view of the facts reasonably open to the jury, a rule of law or practice requires a warning to be given, not being a warning of the kind to which par. (a) refers, the rule must be followed. The rule is itself justification for giving the warning it requires." 25 The High Court also said (at 86): "the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."

[92]

For this proposition they cited Bromley v R (1986) 161 CLR 315 at 319 and 323-5 (where some general words to that effect were uttered in a case about a mentally ill witness) and Carr v R (1988) 165 CLR 314 at 330 (where some of the words were repeated in a case about a disputed uncorroborated oral confession). 26 The High Court then said that the question which arose before the intermediate appellate court and before the High Court was "whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case." They then created what is now known as the "Longman" warning in the following words (at 90-91). For ease of analysis the passage has been broken up. "(A) There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. (B) Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s. 36BD requires) that there may be 'good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence'. (C) But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them: see R v Spencer [[1987] AC 128 at 141]. (D) That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) [(1989) 168 CLR 23 at 31-32, 42-44, 56-57, 71-72] and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient." 27 In this passage there is movement from the proposition stated in (A), that it "would not have been surprising" if the identified circumstances had elicited a comment, to the assumption in (B) that a comment was "required". In (C), it is said that not only a "comment" but also a "warning" was required, and the decisive factor calling for a warning was the accused's loss of those means of testing the complainant's allegations which would have been available had there been no delay. The movement from a comment which would not have been surprising to a comment which was obligatory, and the movement from an obligatory comment to an obligatory warning, was described thus by Gaudron, Gummow and Callinan JJ in Crampton v R (2000) 75 ALJR 133 at [39]: "The passage distinguishes between two different sets of circumstances: those which might well invite, and, we would interpolate, will generally require, comment; and those in respect of which a warning is imperative." 28 Longman v R thus does not itself identify clearly when a warning is mandatory, save by reference to the loss by the accused of the means of testing the complainant's story, which may not have been apparent to the jury. In the authority cited for that proposition, R v Spencer [1987] AC 128 at 141, Lord Ackner (with whom Lords Hailsham of St Marylebone LC, Bridge of Harwich, Brandon of Oakbrook and Mackay of Clashfern agreed) said of accomplices, victims of sexual crimes and children: "In the three established categories where the 'full warning' is obligatory, the inherent unreliability of the witness may well not be apparent to the jury. Hence the phrase often used in a summing up - it is the experience of the courts accumulated over many years etc. etc. Complainants of sexual assaults do on occasions give false evidence for a variety of reasons, some of which may not have occurred to a jury. Accomplices may have hidden reasons for lying, and this possibility may again not be apparent to a jury. Children who, although old enough to understand the nature of an oath and thus competent to give sworn evidence, may yet be so young that their comprehension of events and of questions put to them, or their own powers of expression, may be imperfect. All this needs properly to be spelt out to the jury. Hence the well established rule of practice."

[93]

Thus even in a case where statute has abolished the rule of practice for sexual crimes, the reasoning underlying it is reintroduced, though to support a different proposition. 29 Deane J appeared to agree with the majority in saying that the responsibility of trial judges to give appropriate directions included the responsibility to give "an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury" (at 95-6). But he also said that the court should not fetter the discretion of trial judges by framing in advance particular categories, "such as where there has been a very long delay before the complainant has made any complaint to the authorities, in which a trial judge must be 'satisfied' that the relevant warning or caution is 'justified'" (at 97). He agreed that the appeal should be allowed not because of the absence of speedy complaint or the difficulty of defending a sexual charge, and not because of the long effluxion of time by itself. Rather, he said (at 100-101): "The real force of the applicant's case lies, however, in the combination of: (i) the circumstances of the alleged offences, and (ii) the possible effect, in the context of those circumstances, of the extraordinary lapse of time before complaint and trial. The gravamen of both offences was the alleged placing or pressing by the applicant of his hand on or against the complainant's genitalia. There was no suggestion of penetration, or violence or of contact with other than the applicant's hand. One of the alleged offences occurred when the complainant was six. The other when she was ten. On each occasion, the complainant was asleep immediately before the alleged offence. More than twenty years later, her recollection is that, on each occasion, she awoke to find the alleged offence being committed but pretended to remain asleep. She cannot remember whether she went back to sleep after the incident in the truck. After the other incident, the applicant carried her to her bed where she went back to sleep. It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance. The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant's evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinized with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant's guilt." 30 It follows that on Deane J's approach to the question of whether a Longman warning should be given depends very much on the specific circumstances of each case, and not on generalised factors like absence of speedy complaint by a child about sexual behaviour many years earlier. Further, for Deane J, the difficulty created for the accused by delay was not significant: in this respect the bulk of authority is to the contrary. 31 McHugh J also agreed that the appeal should be allowed. His reasoning was as follows (at 107-108): In the present case both offences are alleged to have commenced when the complainant was asleep. She testified that on each occasion she pretended to remain asleep. She stated that after the incident in the applicant's bed she went back to sleep. She could not remember whether she went back to sleep after the incident in the truck. She was about six years old when she alleges that the first offence occurred, and about ten years old when she alleges that the second offence occurred. The complainant did not allege that penetration occurred or was attempted. Both offences were alleged to have occurred more than twenty years before the hearing. 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: Hunter, Memory, rev. ed. (1964), p. 269-270. No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error is recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, 'I don't hate him but I do hate what he's done and the problems it's caused in my life'. However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred. To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony." 32 Since many victims of sexual offences who fail to complain speedily and who give evidence many years later were young children at the time of the relevant events, McHugh J's stress on errors of recollection, even though linked to events happening to a child waking up but pretending to be asleep, as distinct from Deane J's stress on the risk of fantasy, would appear to open a wider field for Longman warnings. It must be conceded, however, that later cases have treated McHugh J's reasoning as being the same as that of Deane J. 33 In Crampton v R (2000) 75 ALJR 133 at [42] Gaudron, Gummow and Callinan JJ said that there: "may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection; or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result." 34 This Court must accept the reasoning of the majority, which does appear to call for Longman warnings in a wider range of circumstances than those contemplated by either Deane J or McHugh J.

[97]

Crampton v R 38 In Crampton v R (2000) 75 ALJR 133 the accused was charged with indecency in relation to his former primary school children pupils. Complaint was delayed for twenty years. The majority (Gaudron, Gummow and Callinan JJ) held that a Longman warning should have been given. In fact an attempt to give one took place, but it was held not to have gone far enough. In consequence little explicit attention was devoted to what circumstances will cause a Longman warning to be necessary. But one can infer from the terms of the direction which the majority said should have been given what the relevant circumstance in that case was. It was the inability of the accused, by reason of the delay, adequately to test and meet the complainant's evidence, to locate other witnesses and to recollect precisely what the accused was doing on the occasion in question: "the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitute a significant disadvantage". Gaudron, Gummow and Callinan JJ thought that the bulk of the key passage in Longman v R appearing in the majority judgment should have been put, together with the: "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" (at [45]). 39 The majority's statement of the considerations mentioned by Deane and McHugh JJ is in fact much broader than the way those judges put the matter in Longman v R. Since in many cases delay will disadvantage the defence, and since many victims do not complain for a long time and are relying on youthful recollection and their recall may be distorted, the range of cases in which Longman warnings are called for appears to be wide. 40 Hayne J held that a Longman warning should have been given because of the inability of the accused adequately to test the complainant's evidence. 41 It was not necessary for Gleeson CJ to deal with the Longman point. Kirby J, who agreed with the majority about the Longman point, went into detail about the need for the warning in that case in a manner which is with respect useful, but treated the detail as merely an example of the general risk of injustice to an accused arising from delay (at [130]-[132]): "The warning required by Longman must be, in the words of the joint reasons in this case, 'unmistakable and firm'. It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after 20 years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, 20 years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant. Twenty years after the alleged offence, the first complainant was an adult whose life's experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability. Repeated answers to questions, searching the detail of the first complainant's testimony, such as 'I can't remember' or 'it's too long ago' made it extremely difficult to test that evidence in an effective way. The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. That idea is contrary to the repeated authority of this Court in and since Longman. The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms." 42 The suggestion in the concluding paragraph that the Longman warning flows from the "law's long experience" of the perils it guards against is doubtless correct, but stands in contrast to the relative youth of the warning in our law.

[98]

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.

[99]

Longman v R in intermediate appellate courts 52 In this Court there have been decisions holding that a Longman direction should have been given in relation to the difficulty of the accused defending himself and calling evidence: e.g. R v Kenny (Court of Criminal Appeal, 29 August 1997, unreported: nine years before first complaint; the accused and some of his witnesses were cross-examined to suggest that their evidence was not reliable in view of the time that had elapsed, and one potential witness had become unfit to give evidence); R v Harvey (Court of Criminal Appeal, 9 April 1998, unreported: complaint made over five years after the relevant event, and over five years after the accused, who was convicted of sexual offences against the daughter of his de facto wife, left the family). These cases are discussed in R v Johnston (1998) 45 NSWLR 362 at 371-3. In that case it was held that a Longman warning should have been given because the Crown had attacked the reliability of the recollection of various witnesses five and a half years after the event where the first complaint had not been made until then, and though counsel for the accused had raised the difficulties of defending allegations over five years old, the trial judge had not authoritatively reinforced this point. That case in its actual reasoning turns on the Crown tactics in relying on the reliability of defence witnesses because of the lapse of time, and the following statements of general principle by Spigelman CJ (with whom Sully J and Ireland J agreed) correspond with that reasoning (at 375): "(i) Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. (ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt. (iii) The need for, and content of, any comment will depend on the circumstances of the case. (iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case. (v) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties."

[101]

Should a Longman warning have been given? 56 The authorities have been examined in some detail because it is necessary to be certain that statements in the High Court about the conduct or consequences of criminal trials are not misread and treated as being more extreme than they actually are. 57 However, it is impossible to escape from the conclusion that if delay causes either forensic prejudice to the accused in the particular circumstances, or risks of the type described by Deane and McHugh JJ in Longman v R, a warning must be given. The passages which support that conclusion cannot be read down or evaded. 58 Here there was lengthy delay - twenty years. The complainant was quite young at the time of the event complained of - nine. Though her condition might be seen as confirming her evidence, she did not complain for more than ten years, though she did then complain to her husband and her sister. She did not complain to the police for fifteen years. 59 Counsel for the accused said that there was forensic prejudice caused by delay. But for the delay, the accused might have been able to call alibi witnesses or documentary evidence of an alibi. 60 The Crown's first point in answer was that counsel for the appellant did not seek at the trial the direction which it is now said should have been given, and that leave is required under r 4 of the Criminal Appeal Rules to advance these grounds. Counsel's failure is regrettable, but if the appellant's criticisms are sound, they are, in the light of the High Court authorities, sufficiently important for leave to be given, as it customarily is by this Court in cases concerning Longman directions. 61 Secondly, the Crown pointed to the corroboration of the complainant's evidence by her sister S1. That fact alone does not remedy the deficiency in the directions which is claimed to exist. The delay in complaint which caused the appellant difficulties in dealing with the complainant's evidence caused equal difficulties in dealing with S1's evidence. In Doggett v R (2001) 75 ALJR 1290 at [45]-[54] Gaudron and Callinan JJ gave detailed reasons why the existence of corroboration in that case did not relieve the trial judge of the obligation to give a Longman direction, in particular the fifth, sixth and seventh of the reasons quoted above in [47]. 62 Kirby J, at [131]-[136], held that the existence of corroboration did not necessarily remove the need for a Longman warning. He said at [135]: "where (as here) the corroboration is patchy, in some respects unspecific and in others completely silent on the incidents referred to in the charges, the mere fact that corroborative evidence of some kind exists will not entirely remove the utility, and the necessity, of a Longman warning." 63 Those three justices formed the majority which allowed the appeal. 64 The third point made by the Crown was: "Thirdly, this is a case where the appellant confirmed that he visited his late parents' home on occasions in the relevant period, although he was mainly living away from that village working for the Railways. His counsel called in the defence case a number of the appellant's sisters and brothers who lived at the house at the relevant time to give evidence that the appellant's visits to the home in the relevant period were infrequent and of short duration; some of these witnesses testified that during this period there were no occasions when the appellant was present at the house when there was not also a woman there. It could therefore not be validly claimed that the means of testing the evidence had been lost."

[102]

However, if for example the complainant had complained to her parents immediately after the alleged incident, inquiries could have been made at once as to who was in the grandparents' house, what they heard, where the appellant was, what his version of events was, and whether there was any reason for the complainant being in tears other than the conduct alleged against the appellant. These were advantages almost wholly lost when inquiries could not commence for about fifteen years. 65 Fourthly, the Crown relied on the reasons for judgment of Gleeson CJ in Doggett v R (2001) 75 ALJR 1290 at [10]. That passage, which denied the need for a Longman warning in every case where there has been a substantial delay in complaining of a sexual offence, follows a passage explaining that during the trial the accused had made no complaint about the difficulties caused by delay. That is not the accused's position here in the sense that it was the first point which the appellant made to Detective Senior Constable Ogilvy. And in any event Gleeson CJ's judgment, like that of McHugh J to similar effect, was a dissenting one. 66 Fifthly, the Crown submitted that if there was any prejudicial effect in the delay, it would have been obvious to the jury, and indeed the trial judge referred to the impact of the passing of time on the quality of recollection in the passage in the summing up emphasised above. The issue of whether the danger is obvious to the jury divides McHugh J from the majority judges in the High Court cases, and though empirical questions like that are not usually to be answered by the force of authority, the cases are strongly against the submission. 67 While obviously the passage of twenty years might will affect memory, there does not appear to be any particular danger of the type to which Deane and McHugh JJ referred in Longman v R. There was, however, some prejudice to the accused's position by reason of an inability to establish an alibi or some other circumstance which could raise a reasonable doubt as to the correctness of the victim's complaint. The accused did call some alibi evidence, but his capacity to call more convincing alibi evidence was diminished by the delay. 68 It follows that the trial judge should have given a Longman warning.

[104]

Late complaint, of course, necessarily has some potential disadvantages to the accused because it reduces his opportunity to explore the matters complained of in some ways or it has that potential. First of all, of course, memory of events tends to decrease and become vaguer. However, in this case, the accused says it did not happen. Not only did it not happen, there was never an opportunity for it to happen, never an occasion when it would have happened, never an occasion when there could have been a misunderstanding about what was happening. It is quite clear that the accused says there is no occasion of this nature or occasion when it might have been misunderstood. Two things arise, of course, when there is a delay in complaint. One is the opportunity of the accused perhaps to look at matters which were happening at about that time and to raise them in evidence. Also, the capacity of the complainants to be accurate is probably reduced and that may raise some greater difficulty in cross-examination of them. It may also, of course, explain some errors in the recollection." (emphasis added) 73 The trial judge was then asked to give further directions on the ground that those just quoted fell short of what were called for by Longman v R (1989) 168 CLR 79 at 90-91. She said: "Finally, I just want to make it very clear about this, the matters are to be looked at separately. There is no supporting evidence so that the evidence in one cannot be used in another. The evidence of one complainant cannot be used to support the evidence of the other. There was a very long period in which there was no complaint. The complaint came late. You must take that into account and the circumstances in which it came into existence and what the complainant, that is [the relevant complainant] who was the only one who complained of course, had to say about that. There was no complaint as such from [the other complainant]. He told the police about it when he was approached by the police following the complaint by [the relevant complainant]. You will be aware that in the circumstances of a 20 year delay that clearly those are all matters which you are going to consider. You are going to consider motive, the opportunity to concoct, the reason why that might be. You are going to look very carefully at the nature and circumstances in which that complaint came into existence. Those are all matters that you will bear in mind when you consider the case for the accused." 74 Of these passages, Gaudron, Gummow and Callinan JJ said, after referring to Longman v R: "As the appellant submits, the first reference by the trial judge to delay was followed by an observation which could have diminished the effect of the caution - it did fall short of a warning - against acting on the evidence of the complainant of a complaint so long delayed. To say what her Honour did in the first passage from her summing up that we have quoted was to say too little, too unemphatically, and less than what Longman required be said in the circumstances of this case. The redirection, which we have also quoted, suffered from some of the same or similar deficiencies.

[105]

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." 75 Kirby J agreed at [128] that the directions were defective. So did Hayne J at [140]-[143], in stressing the need for there to be not just a comment, but a warning, and a warning about the danger of convicting. 76 The trial judge in the present case said nothing specific about the difficulties which delay might have caused to the defence as distinct from the impact of delay on recollection. He said less than the trial judge did in Crampton v R. The upholding of the relevant grounds of appeal in that appeal has the consequence that so far as there was a warning here, it was inadequate. 77 In the light of that conclusion, it is not necessary to examine in detail the Crown's submission that R v Roddom was distinguishable. The point of distinction was said to be that the first of three passages which the Court of Criminal Appeal analysed in that case did not identify "factors such as the delay in the prosecution, the fragility of youthful recollections, the absence of early complaint and the distortion of recollection over time". The Crown said that the trial judge had given directions of that kind here. However, the real point of R v Roddom was that though the trial judge had given satisfactory directions in the early part of the second passage referred to by the Court of Criminal Appeal in that case, she had undermined the effect by referring to the reasons for delay. While in that case proper directions were undermined, in this case they were scarcely given at all. 78 The Crown submitted that even if the warning did not comply with Doggett v R, that case was intended only to apply to the future, not the past. Even if this technique is open to the High Court, there is nothing to suggest that it intended to deploy it in Doggett v R. 79 Accordingly Ground 1 succeeds. 80 Ground 2, so far as it does not overlap with Ground 1, however, fails. There was nothing wrong with the trial judge's directions about the complainant's evidence except that the difficulties which delay in complaint caused to the appellant were not mentioned.

[130]

Ground 4: unreasonable verdicts 98 This ground was: "The verdicts of the jury were unreasonable and cannot be supported having regard to the evidence and were unsafe and unsatisfactory giving rise to a miscarriage of justice." 99 The written submissions of the appellant in support of this ground consisted largely of a summary - it cannot be called an analysis - of the evidence of the complainant, her mother, her sister S1, the appellant, the appellant's brother and three of the appellant's sisters on the questions of the chronology of occupancy of the grandparents' house. 100 The appellant's submissions commenced by saying it was not clear when the offence occurred - while the complaint was nine, between 10 May 1978 and 10 May 1979, which was a period not covered by the indictment - or after her grandparents died in December 1979. 101 It is convenient to deal at this point with a submission to which no ground of appeal relates. It was: "The jury should have been given a direction that if they found that the complainant relied upon the latter period, then it was open to them to acquit if they were of the opinion, bearing in mind there was no onus on the appellant, … that it was reasonably possible during this period that the appellant was not alone at the grandparents' house … ." There is nothing to suggest that any such direction was asked for by the appellant's counsel at the trial. If not, leave is needed to advance the argument, and that leave should be refused. In any event, the point is hopeless: virtually all the defence evidence was directed to an endeavour to establish the proposition that the appellant could never have had an opportunity to commit the offences because some other adult would always have been in the grandparents' house. Hence no direction was necessary. 102 Despite the timing doubt raised by the appellant's submissions, the evidence is all one way that the alleged offences took place after the grandparents' death, and that the complainant's uncertainty about her age related to an inessential detail only. 103 The appellant's submissions appear to accept that, because they proceeded as follows: "The occupation of the grandparents' house appears to be after December 1979 as follows:

[138]

The summer in 1979-80 after December [CS] was mostly in the home pregnant, [C1 and G]. The summer in 1980-1 to December, [G] possibly [C] and possibly [BH] and her family were living there. If the incident occurred allegedly after December 1979, the above evidence creates a reasonable doubt that the jury should have entertained and the verdicts for that reason cannot be supported." 104 This argument rests on a fundamental fallacy. So far as it asks this Court to conclude that, or experience a reasonable doubt about whether, during every minute of daylight from December 1979 until the end of 1980 the grandparents' house was occupied by an adult other than the appellant, it is asking the court to reach an impossible conclusion in the absence of evidence, for example, that there was a bedridden invalid there at all times. There was no such evidence. The evidence which the appellant's siblings gave about an adult always being in the house during the relevant period does not support the necessary conclusion. Only BHsaid that she never left the house. No other witness said that. To the extent that a particular witness had left the house, the evidence of that witness that someone else was there ceased to have probative value, because the fact asserted ceased to be within the witness's personal knowledge from shortly after the moment of departure. The contention advanced by BH that she was "always there" (page 43 line 59) totally lacked credibility. It was contradicted, for example, by her own evidence in chief that she left the house to go shopping with her husband once a fortnight for half a day in Cobar (page 34 lines 14-25). 105 The Crown demonstrated numerous inconsistencies amongst the defence witnesses as to who was living in the house at different times and how often the appellant visited it. In themselves these inconsistencies were not decisive of anything, but they do cast a cloud over the reliability of the defence evidence so far as it essayed the almost impossible task of negating any opportunity for the appellant to commit the crimes or raising a reasonable doubt on that issue. The reliability of that evidence is further undermined when it is read as a whole: while it was open to the jury to accept it, its strongly partisan tone makes it easy to understand why they appear to have rejected it. 106 The Crown case was neither particularly weak nor particularly strong. It alleged events that had happened a long time ago to a young child, in respect of which there was only weak corroboration, and in respect of which there had been long delays in complaint. On the other hand, there was nothing inherently implausible or self-contradictory in the complainant's allegations. The jury were entitled to treat the delays in complaint, and the manner in which the complaints were eventually made, as not adverse to the complainant's credibility. 107 In oral address the appellant contended that the complainant had given mistaken evidence about who was living at the grandparents' house. The submission rests on a misreading of the evidence. 108 The relevant tests for determining whether the verdict resulted in a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 were set out in M v R (1994) 181 CLR 487 at 493-5: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

[145]

The applicant for the other matters was sentenced on a totality basis in respect of the charges in the 4 trials and the sentence of 8 years was imposed on the offence of having sexual intercourse with BLY she being under 16 years c.c. 8 years when the applicant forced her to suck his penis. The application of the principles of totality if the applicant had been dealt with at the same time as the other matters would have justified concurrent sentences for these offences. The head sentences of 8 years + 5 years a total of 13 years on a totality basis appears excessive when there it is not certain that the applicant will be released in 2006 at the end of his non parole period." 117 The fact that the appellant had no convictions at the time the offences were committed does not alter the fact that the offences were serious. They were committed on a young child in circumstances where the appellant had considerable power over her. They were capable of causing her harm in later life, and the evidence of the complainant's ex-husband appears to indicate that to some degree they have caused her harm. There is nothing in the duration of the sentences in themselves to suggest that they are outside a range fairly open to the sentencing judge. 118 It seems that the sentences now being served by the appellant related to his conduct in relation to a child who in relation to two convictions was eight years old and in relation to a further conviction was about fifteen. The first conviction related to forced fellatio, the second to indecent assault, and the last to indecent assault and attempted rape. In relation to the first conviction the appellant was sentenced to eight years' imprisonment. Lesser sentences were given in relation to the other convictions, and they were ordered to be served concurrently with the eight year sentence. The submission of the appellant that the two sentences under consideration in the current appeal would have been made concurrent with the eight year sentence had all matters been dealt with at the same time is rejected. The victims were different. The times when the crimes were committed were different. The places where they were committed were different. The criminality appears entirely distinct. Even taking into account the principle of totality, the total sentences are not excessive in the light of the nature of the appellant's various crimes. Hence, were it necessary to consider the merits of Ground 5, it should be rejected.

[146]

New trial? 119 The result is that the appellant succeeds in relation to Ground 1 but fails on the other grounds. Normally success in relation to a ground like Ground 1 would result in an order for a new trial. Should that order be made in this case, or should the appellant be acquitted? 120 This is a very old case. There was a lengthy delay between the time of the alleged commission of the offences and the time of the first trial. There has in turn been considerable delay between the time of the trial in 1998 and now. There would be further delay if the appellant was required to stand trial again. While the first trial was short and a second trial is likely to be equally short, a second trial will be "an ordeal for the defendant which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so.": Reid v R [1980] AC 343 at 350 per Lord Diplock. The Crown case is not weak, but it is not so strong that a properly directed jury would inevitably convict or would even be very likely to convict. On the other hand, the appellant has been fortunate in being able to take advantage of a technical error by the trial judge, into which he was led by the failure of his own counsel to seek the correct direction, perhaps for tactical reasons. The offences charged are serious, and their prevalence appears to be widespread. The trial was not prolonged or complex. The appellant has not served any part of the sentence because of the other sentences he is serving. He will not be released for some years. The admissible evidence given at the trial was sufficiently cogent to justify a conviction, and the circumstances do not raise any question of whether the order for a new trial will give the prosecution an opportunity to supplement what was at the first trial a factually defective case: the case was not factually defective. In all the circumstances the court's discretion under s 8 of the Criminal Appeal Act 1912 should be exercised in favour of ordering a new trial.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

GPP

Legislation Cited (4)

Crimes Act 1900(NSW)

Criminal Appeal Act 1912(NSW)

Evidence Act 1906(WA)

Evidence Act 1995(NSW)

Cases Cited (24)

CITATION : R v GPP [2001] NSWCCA 493 FILE NUMBER(S) : CCA 60135/01 HEARING DATE(S) : 26 September 2001 JUDGMENT DATE : 6 December 2001

COUNSEL : Mr G E Smith (Crown) Mr J C Papayanni (Appellant) SOLICITORS : S E O'Connor (Crown) Jeffreys & Associates (Appellant) CATCHWORDS : Criminal Law - Sexual offences - Indecent assault - Attempted rape - Appeal against conviction - Delay in complaint - "Longman" warning - Whether "Longman" warning necessary - Whether delay caused forensic prejudice to accused - Correct form of warning - Discussion of history of warning and relevant case law - Criminal Law - Sexual offences - Indecent assault - Attempted rape - Appeal against conviction - Whether jury verdicts unreasonable, unsafe and unsatisfactory causing miscarriage of justice - Criminal Appeal Act 1912, s 6(1) - Criminal Practice and Procedure - Appeals - Remedies - Dismissal - New Trial - Whether appeal should be dismissed under proviso to s 6(1) of Criminal Appeal Act 1912 - Whether no substantial miscarriage of justice - Whether error so fundamental as to have caused trial to miscarry - Whether conviction inevitable despite error in trial judge's direction - Whether new trial should be ordered - consideration of discretionary factors - Criminal Appeal Act 1912, ss 6(1) and 8 Crimes Act 1900 (NSW) LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) Evidence Act 1906 (WA) Evidence Act 1995 (NSW) R v Aristidis [1999] 2 Qd R 629 R v Arundell [1999] 2 VR 228 Bromley v R (1986) 161 CLR 315 Carr v R (1988) 165 CLR 314 Crampton v R (2000) 75 ALJR 133 Crofts v R (1996) 186 CLR 427 Doggett v R (2001) 75 ALJR 1290 Glennon v R (1994) 119 ALR 706 R v Harvey (Court of Criminal Appeal, 9 April 1998, unreported) R v Johnston (1998) 45 NSWLR 362 Jones v R (1997) 191 CLR 439 CASES CITED: R v K (1997) 68 SASR 405 Kelleher v R (1974) 131 CLR 534 R v Kenny (Court of Criminal Appeal, 29 August 1997, unreported) Longman v R (1989) 168 CLR 79 M v R (1994) 181 CLR 487 R v Murray (1987) 11 NSWLR 12 Reid v R [1980] AC 343 Robinson v R (1999) 197 CLR 162 R v Roddom [2001] NSWCCA 168 R v Spencer [1987] AC 128 R v Stewart [2001] NSWCCA 260 Singleton v Ffrench (1986) 5 NSWLR 425 DECISION : Appeal allowed; convictions quashed; new trial ordered.

b. In this case, the appellant had been prejudiced by reason of an inability to establish an alibi or some other circumstance capable of raising a reasonable doubt as to the correctness of the victim's complaint. c. The content of the trial judge's warning was inadequate. He mentioned the weaknesses in the complainant's evidence and the possible impact of delay on recollection. However, he did not warn about the difficulties that delay might have created for the accused in attempting to address the allegations. Longman v R (1989) 168 CLR 79, Crampton v R (2000) 75 ALJR 133 and Doggett v R (2001) 75 ALJR 1290, applied. d. The fact that there was some corroboration of the complainant's evidence by her sister, did not remedy the deficiency in the directions regarding delay in complaint. Doggett v R (2001) 75 ALJR 1290, referred to. 2. The trial judge did not err in his directions about use of the complainant's evidence generally. a. When the trial judge directed the jury carefully to scrutinise the complainant's evidence, he mentioned that such a direction was given in all cases where the Crown case relied on the evidence of one witness. This did not understate the importance of the direction, but instead demonstrated its universal importance. R v Roddom [2001] NSWCCA 168, discussed. 3. The trial judge did not misdirect the jury in relation to intent. a. The trial judge's mistake about the time of day/night of the events was a trivial slip. Whether the complainant was mistaken about her age did not affect the merits of the trial judge's direction. b. Although the complainant did not say in terms that she thought the appellant was going to penetrate her, there was a passage of the complainant's evidence which was to that substantive effect. If the jury accepted that evidence, they could have inferred that the appellant intended to have sexual intercourse without consent. 4. The trial judge did not err in his observation on whether the same verdict ought to be brought in on each count. a. The passage complained of contradicts the theoretical possibility that the appellant could be believed on one count and not the other. However, the correct theoretical position is stated in the preceding and following passages, and is only a theoretical position. No request for redirection was made at trial.

(1986) 161 CLR 315

(1988) 165 CLR 314

(2000) 75 ALJR 133

(1996) 186 CLR 427

(2001) 75 ALJR 1290

(1994) 119 ALR 706

(1998) 45 NSWLR 362

(1997) 191 CLR 439

(1997) 68 SASR 405

(1974) 131 CLR 534

(1989) 168 CLR 79

(1994) 181 CLR 487