R v GTN [2003] VSCA 38

Court of Appeal (Vic)|2003-04-23|Before: ORMISTON, CALLAWAY and EAMES, JJ.A.

The applicant, whom I will identify as "GTN", was convicted by verdicts of a jury in the County Court , on 20 February 2002, and sentenced on 26 February 2002 with respect to three sexual offences committed against his grandniece, "E". On two other counts in the presentment he was found not guilty. One of those counts alleged another offence against the complainant "E", but the other count on which he was acquitted concerned another grandniece, "L".

In each instance the offences were alleged to have been committed between 13 November 1997 and 28 January 1999 at Preston. Those dates were chosen by the Crown because it was on 13 November 1997 that the applicant commenced residence at the house in Preston at which the offences were alleged to have occurred and it was on 28 January 1999 that the complainant "E" first complained that she had been sexually assaulted by the applicant. On 1 February 1999 the complainant conducted a VATE video interview at Frankston Community Policing Squad which interview comprised the evidence-in-chief of the complainant at the trial of the applicant.

Throughout the period in which the offences were alleged to have occurred against "E" the applicant was living in the Preston house with his sister, "B". Also living permanently in the house was the child "L", who was "B's" grand-daughter,

being the child of "B's" son. B had custody of her granddaughter "L" (who was born on 22 May 1986, and would have been aged 11 or 12 years at the time of the alleged offence against her, as to which the applicant was acquitted). In addition to having the care of "L", on two or three occasions each week the applicant's sister also baby-sat two or more of the children of her daughter whilst her daughter worked. One of those children was the complainant "E".

The trial was a very short one, commencing on 18 February 2002 with applications made prior to the empanelling of a jury. A jury was empanelled on the afternoon of 18 February 2002 but after some preliminary matters were addressed to them they were sent away whilst pre-trial matters were being discussed with counsel and the trial itself commenced before the jury at about 11 a.m. on 19 February 2002. At 4.11 p.m. on 20 February the trial judge concluded his Charge to the jury and they commenced their deliberations. At 5.38 p.m. the same day the jury returned verdicts of guilty on counts 1, 2 and 3 and not guilty on counts 4 and 5. His Honour's Charge was relatively short - comprising some 31 pages of transcript - but not inappropriately so.

After submissions on sentence the applicant was sentenced as follows. Counts 1 and 2 were offences of indecent acts with a child under the age of 16, contrary to s.47(1) of the Crimes Act 1958. On count 1 he was convicted and sentenced to twelve months' imprisonment and on the second count to six months' imprisonment. Count 3 was an offence of committing an act of sexual penetration with a child under the age of 16 by introducing his penis into her mouth. It was pleaded that the child was under the age of 10 years, and the applicant was sentenced on that basis, the sentence on count 3 being three years' imprisonment. The applicant was declared a serious sexual offender with respect to count 3 and was sentenced to a total effective sentence of three years' imprisonment and ordered to serve a minimum period of twelve months before being eligible for parole. There has been no application for leave to appeal against sentence. Four days pre-sentence custody was declared pursuant to s.18(4) of the Sentencing Act 1991.

When interviewed by a police officer with the Frankston Community Policing Squad on 1 February 1999 the then five year old complainant, "E", described events which constituted the three offences, all of which she said occurred on the same occasion on a day which she was unable to specify.

The complainant said in her interview that on the day of the offences she had been lying on the waterbed of the applicant, in his bedroom on the first floor of the dwelling, and her younger sister was downstairs. The complainant had told the police that these events occurred during the day and that when they occurred her grandmother was putting the clothes on the line and then later her grandmother came into the house and was sitting in the lounge room. She said "I don't know, but I think she walked around, but I don't really know about that part".

The complainant described the events as occurring whilst she was in the bedroom and after she had asked the applicant to get dressed in the bedroom. Instead, he got dressed downstairs and then returned to his bedroom. The applicant then asked the complainant "to kiss his willy". "E" said that the applicant put his penis into her mouth for about a minute and then left the room to have a shower, saying he was going to see his girlfriend. The shower was in a bathroom on the ground floor. Although "E" said at first that the applicant had placed his penis in her mouth only once she then told the police that after the applicant had showered he came back into the room and, although she told him not to do it again, he again put his penis into her mouth and then, having pulled down her "nickers", the applicant "kissed her muffin" by "sticking his tongue out". By the term "muffin" she was describing her vagina. The complainant said to the police that when the applicant's "willy" was in her mouth it felt partly soft. She described his penis and pubic hair in terms which the jury might have regarded as being quite clear, albeit expressed in terms appropriate to a child.

The complainant said that while she was standing on the bed the applicant put his tongue in her mouth. He then told her not to tell her mother, her father or her brother. Not long after that he touched her "boobies". The complainant said - when directly asked at a later point in the interview - that the applicant had "kissed [her] muffin" and "kissed [her] mouth" once only in each case. She was not then directly asked how many times he had placed his penis in her mouth, although that event was included in other questions, thereby creating some confusion as to what the complainant meant in responding to questions posed, generally and vaguely, in terms of "when this happened". In response to such a question the complainant spoke of "the same thing that he done the same day" and when, confusingly, asked "When did that happen? When did the second time happen?" the complainant answered "I don't know how much times, but I think it was once or twice". The uncertainty generated by those questions and answers no doubt explains why the jury acquitted the applicant on count 4, which alleged a second offence of penetration by placing his penis in the mouth of the complainant.

In cross-examination she said she was not really sure whether the applicant kissed or licked her muffin. She said that before the events occurred in the applicant's room she had been downstairs "mucking around" with her sister but she agreed that it was just a guess on her part that her sister was downstairs when the events occurred. She said she did not tell her grandmother what had occurred because she had thought she would get into trouble. She was asked about her statement in the VATE interview, which she had made in answer to a question, that both her brother and her mother were not present when the offences occurred. She told the police that she thought that her mother had gone shopping. In cross-examination, however, she said that that information had been told to her subsequently by her mother.

In further cross-examination the complainant agreed that she did not like the applicant when she stayed at her grandmother's house and she considered him to be a grumpy person, who used to growl at her. She agreed to the proposition that the applicant's room was his private area and that she was not allowed to enter it without her grandmother being present or else if her own mother or another adult was present.

It was suggested to the complainant that she was mistaken in her evidence, and also that she was a person who told lies. She denied the suggestion that what had occurred (and all that had occurred) was that she had seen the applicant naked when she had entered the downstairs bathroom while he was showering.

The applicant gave evidence at the trial and told the jury that the house at Preston was a two-storey dwelling, the upstairs floor comprising a single large room which was his own room. The only bathroom on the premises was on the ground floor. He said that the complainant, her younger sister and her brother (if he was not at school) would be brought to the house by their mother, who was working part-time, and would be left with his sister, "B", for babysitting. If his sister left the house for some reason then it was he, the applicant, who would look after the children in her absence. He said he would look after them, in such circumstances, probably once a week, or something like that. He said that none of the children nor any of the adults would go up the stairs to his room unless he was at home and unless there was a group of people who went up. He said his was a private area and his privacy was respected. In his room he had a waterbed and he also had a television in his room.

The applicant said he did not really have a lot to do with the complainant when she was in the house although occasionally he might join in with the children's games. He said that it was usually on a Friday that he would be looking after the children because that was the day that his sister went shopping for a couple of hours. He said the children were usually put to sleep whilst his sister was out. He said it was not all Fridays on which he would mind the children, because sometimes he would go to Springvale on a Friday, where he was working part-time in a shop on two or three days a week. He agreed, however, there would be "many occasions" on a Friday when he would be minding the children when his sister would be out of the house. The applicant told the jury that in the period during which the offences were alleged to have taken place he did have a relationship with a woman aged in her forties, which was occasionally a sexual relationship, but agreed that on occasions throughout that period sexual relations were not occurring with his female friend. Whilst he agreed it was possible that "E" might have accidentally seen him in the shower he could not recall any such occasion.

The applicant's sister, "B", gave evidence and confirmed that she would mind the children on two or three occasions each week and said that when she was going shopping she would put them down for an afternoon nap. She said that the applicant would mind the children if she was away from the house. In cross-examination she agreed that there was a rule that the children were not allowed in the applicant's room and if she saw them going up the stairs she would tell them to desist. She agreed his room was regarded as private and she, the sister, did not know what he had in his room. She had thought that the children got on alright with the applicant.

During the hearing of the application for leave to appeal much emphasis was placed by counsel for the applicant on the fact that the actual date of the alleged offences could not be established. The police asked the complainant if she could remember what day it was that the events happened and she said "I think it was Monday". Later, in cross-examination, she said the suggestion that it was a Monday was just a guess. She could not say how old she was at the time when these events occurred and said the events happened "a long time ago". At the time of the VATE interview she said, first, that she was in grade Prep, but then corrected herself, to say she was in grade 1. (The interview was conducted at a time which would have been close to the start of the school year, which might have explained her initial error.) "E" said the events occurred before she first commenced attending school.

In cross-examination she agreed that it was a long time after these events occurred that she told her mother and father about them. She said these events occurred "a year or two" before she commenced school. She said that at the time when the events occurred her sister was old enough to walk.

The request for a "Longman"[13] direction.

Although seven grounds were specified in the application for leave to appeal against conviction all but two grounds were abandoned by the applicant. The application proceeded on ground 2 which complained that the trial judge did not direct the jury correctly in relation to the "Longman" warning and ground 3 complained that the verdicts were unsafe and unsatisfactory. Counsel for the applicant made clear that it was only on the basis of the suggested deficiency in the Longman direction that it was contended the verdicts were unsafe and unsatisfactory.

Counsel for the applicant at trial was in the course of her address to the jury when the luncheon adjournment was taken on 20 February 2002. Upon resuming after the luncheon adjournment, and in the absence of the jury, counsel asked the judge whether he proposed "giving a Longman direction in the circumstances of this case". His Honour responded that he did, but said that there was no set formula of words for such a warning and said that he proposed to warn the jury -

"along the lines of, because the case really hinges on their accepting in each case the truthfulness of the two complainants, and that there is no evidence tending to confirm their allegations, therefore, they must scrutinise the evidence of complaint with particular care, but they can act on it if they accept it as true, but only after scrutinising it with great care and I will say something to the effect that there are dangers in convicting a person on that evidence without giving it the requisite close scrutiny."

His Honour said that he did not propose using the words "dangerous to convict", but counsel urged that he do so. His Honour said that it was only in some cases that he would use that particular form of words. His Honour, true to his word, did not use the words "dangerous to convict" and counsel submitted that was one of the deficiencies in the Charge.

Counsel for the accused man then raised a second matter with the trial judge, concerning the Longman warning. She asked whether the trial judge was proposing to say something about the disadvantages in testing the allegations which confronted the accused man in defending the charges because the allegations had been made "at such a late stage". His Honour responded that the complaints were not all that late. Counsel responded:

"But the problem is, Your Honour, say with [`E'] she says, look, she thinks it was a Monday, she really can't say which year, she can't say anything but she thinks it is on a Monday and she is not certain about that. My client is deprived of being able to realistically perhaps find an alibi, because there is no specificity about when this thing occurred. Had she complained the next day he could have."

Counsel urged his Honour to "to include that aspect in your Honour's Charge in relation to Longman".

The prosecutor said that he would not "dissuade" his Honour from giving a Longman warning "though it is not the clearest of cases to give one". He submitted that in the circumstances of the case it was not necessary to give a warning in the terms sought by counsel for the accused.

His Honour said that he was disinclined to give a direction with respect to the forensic disadvantages caused by delay.

In his Charge to the jury his Honour commenced by giving to the jury what they would have clearly understood to be directions as to the law on a range of topics. He then said to the jury that it was obvious that the case stood or fell on whether or not they accepted the evidence of the complainants beyond reasonable doubt. As to counts 1 to 4 he told the jury that the evidence of "E" was critical in the case and that the credibility of both complainants had been challenged.

"Members of the jury, you should, because the evidence of those two witnesses is so critical, you should scrutinise it with special care in both cases. You can act upon the evidence of [`E'] and you can act upon the evidence of [`L'] if you are convinced of its accuracy but you should first scrutinise that evidence with special care. There is in this case as is not uncommon in cases of this kind, no other evidence that tends to confirm or support what those witnesses say and that highlights the importance of your subjecting that evidence very closely and with great care [sic]. But in the end, having subjected that evidence to this close scrutiny and care, if you are satisfied of its truth then you may convict [the applicant] of the offences in each case with which he has been charged. But you must be warned that there are dangers which are obvious to you in convicting a person on that sort of evidence of serious offences like this unless you do subject the evidence to that close scrutiny and care and having done so, are satisfied of its truth and accuracy."

Counsel for the applicant contended, first, these words did not constitute a "direction"[14], as opposed to a "comment" by the trial judge. I will deal with that contention immediately.

In Crampton v. The Queen Kirby, J. differentiated a comment from a warning as follows:

"Comment will simply remind the jury of matters frequently with common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser."[15]

Early in his Charge, and at a time quite proximate to the passages quoted, above, the trial judge gave the traditional directions concerning the difference between comments and directions, and advised the jury of their obligation to apply any directions on law. In my view, although his Honour did not expressly state in those extracted passages that he was giving them a "direction", the jury, in the context of the Charge, would have understood that this was a direction rather than mere comment. His Honour was telling the jury what they "should" do with respect to the evidence and in telling the jury "you must be warned" the fact that it was a direction was further emphasised. I reject the contention that this passage did not constitute a direction, at all.

Assuming that it was a direction, counsel for the applicant submitted that as a Longman direction it was deficient for a number of reasons.

Complaint as to lack of judicial emphasis and omission of a direction that it was "dangerous to convict"

In the first place, it was submitted that it was necessary in the circumstances of this case that the jury be told that it was "dangerous to convict" on the uncorroborated evidence of the complainant. To merely tell the jury that "there are dangers" in convicting a person on uncorroborated evidence in such a case denied the accused the benefit of what has been called a "full"[16] Longman direction, so it was submitted. Not merely was the direction inadequate for its omission of this phrase, counsel submitted, the terms of the direction failed to imbue the warning with appropriate emphasis and failed to apply the full weight of the authority and experience of judicial office to the direction.

As I understood the submissions of counsel for the applicant, it was contended that his Honour was obliged to spell out to the jury those factors in the case which made the evidence unreliable. Thus, the judge was required to spell out such factors as the age of the complainant, the lack of detail in her account, the possibility that she was confusing fantasy with reality and other matters which might have been (and no doubt were) the subject of the final address of counsel for the applicant.

When asked the terms in which it was contended that the direction should have been couched counsel for the applicant initially suggested a formulation which included what amounted to a direction that the evidence of children was inherently unreliable, a direction which would run counter to the prohibition imposed on such a comment by s.23(2A) of the Evidence Act 1958 [17]. Counsel resiled from that approach and instead suggested that an appropriate direction should identify the particular factors which made this complainant's evidence unreliable, not by virtue of her membership of a class, i.e. children, but because of the special features of this case. No special features of the complainant's evidence were identified, however, as suggesting that it was unreliable save for the assertion that she was confused or uncertain as to some matters in some of her answers.

Complaint as to omission of a direction concerning the forensic disadvantages caused by delay in making complaint.

The second complaint made as to the Longman direction was that at the point in the Charge when he first dealt with the dangers inherent in the uncorroborated evidence of the complainant his Honour gave no additional direction with respect to the forensic disadvantage the accused faced, in attempting to defend the charges, by virtue of the delay between the occurrence of the alleged offences and the raising of complaint for the first time. Such a direction was required, it was submitted, in the circumstances of this case having regard to the principles in Longman.

The issue of delay was in fact touched upon by his Honour in his Charge, but not at the same time in the Charge as he delivered the direction quoted above. His Honour, instead, addressed the question of delay at a point which appears some eight pages later in the transcript of his Charge. At that time his Honour was dealing with the competing contentions of counsel, and was doing so immediately after telling the jury that "the central issue in this case, indeed, the only issue is, are you satisfied beyond reasonable doubt that these acts as alleged did take place". His Honour then summarised the way in which the prosecutor had put the case in his address. His Honour said that the prosecutor had contended that whilst there may have been confusion and inconsistencies in some of the evidence of the complainants they were basically honest and reliable witnesses on the important matters in the case. His Honour then continued as follows:

"Bear in mind that [the prosecutor] also invited you to take the view that you might accept that there was good reason for the delay in both cases in bringing the allegations, but bear in mind, that when there is a delay that does put an accused person at some disadvantage. Obviously if the allegations are made sooner rather than later, you have a better opportunity of dealing with them and assembling evidence which might help you show that the events did not happen when and where they are alleged to have happened. Bear in mind also, [the prosecutor] invited you to take the view, as I said, that there may be good reason for that delay."

His Honour then discussed the submissions of both counsel relating to the question of delay concerning the complainant "L". His Honour continued the Charge as follows:

"Again, those matters, members of the jury, in weighing up the credibility or otherwise, reliability or otherwise, truthful or otherwise of the witnesses, are matters which are entirely within your province but bearing in mind the comments that [the prosecutor and defence counsel] and which I have made, and bearing in mind they are only comments. In the end they are matters for you."

As to these passages, counsel for the applicant complained that the fact that his Honour referred to the question of delay, and the disadvantages posed to the defence thereby, demonstrated that his Honour accepted that a Longman warning with respect to the forensic disadvantage caused by delay was necessary in this case, but that having accepted it was necessary his Honour then failed to give that direction, at all, or in appropriate terms, and at the appropriate place in his Charge. As I later discuss, however, his Honour well understood the difference between a direction (or warning) and a comment, and - as he had told counsel was his intention - he chose not to give a Longman direction/warning as to the factor of delay. Counsel was therefore quite right that there was, in fact, no "direction" at all given as to delay. His Honour expressly told the jury that the words concerning delay amounted to a "comment", only, rather than a "direction". If a "direction" was required then that "comment" would be inadequate: R. v. Young[18].

The fact that no direction was being given was emphasised by the fact that the words concerning delay were delivered in the context of summarising the address of the prosecutor rather than at a time when the judge was delivering directions on law, as he had been when he earlier gave what he regarded as being a Longman direction appropriate to the case, but which omitted the words "dangerous to convict". Counsel submitted that not only was a direction as to the forensic disadvantage caused by delay required to be given as part of the Longman direction, it should have been given at the same time as the other elements of the Longman direction, thereby ensuring that the direction as to forensic disadvantage caused by delay was understood to men that, on that account, too, it was "dangerous to convict".

The deficiency in the terms of the instructions as to delay were said to be compounded by confusion which arose by virtue of the fact that his Honour, in the same passage, gave to the jury what amounted to a direction or warning, pursuant to s.61(1)(b) of the Crimes Act 1958, to the effect that there may be good reasons why a victim of a sexual assault might delay complaining about it. Whilst it was accepted that such a direction was appropriately given, and in the terms in which it was, counsel contended that it was not appropriately introduced when it was, because it distracted the jury from consideration of the forensic disadvantage suffered by the accused on account of delay.

It was submitted that an adequate direction as to the forensic disadvantage caused by delay required the trial judge to spell out precisely what the forensic disadvantages were for the accused, and this the judge failed to do. Additionally, in order to give the directions the required weight of judicial office it was necessary to direct the jury that the disadvantages were significant; it was not sufficient to merely say that there were "some" disadvantages caused to an accused by delay.

The necessity for and parameters of a Longman direction

In Longman the High Court was interpreting Western Australian legislation which abolished the general rule requiring that a warning be given, in sexual cases, that it was unsafe to convict on the uncorroborated evidence of the complainant[19]. The question arose whether any and what obligations remained on a trial judge to give an appropriate direction as to the dangers of convicting on uncorroborated evidence in a sexual assault case. The circumstances in Longman were such that the Court held that notwithstanding the legislation an emphatic warning should have been given addressing a number of distinct problems which arose because of delay and warning the jury that it was dangerous to convict on that evidence.

In Longman the delay in complaint was 25 years as to the first alleged offence and 21 years as to the second. The complainant, an adult when she gave evidence, had been six years old when the first event occurred, and ten at the time of the second incident. In both cases she said that she became aware of being touched in her genital area as she woke from sleep and in both cases she subsequently returned to sleep. The man accused was her stepfather. The complainant gave evidence that events such as these were not isolated events.

The decision in Longman has been the subject of much analysis in later decisions of the High Court: see Jones v. The Queen[20], Crampton v. The Queen[21], Doggett v. the Queen[22], and Dyers v. The Queen[23]. Notwithstanding that further analysis the circumstances in which a Longman warning would be required to be given in a trial and the necessary terms of such a warning remain the subject of considerable judicial debate, there being an apparent lack of consensus among members of the High Court on the applicable parameters of the principle[24]. The ambit of the Longman principles, the difficulties faced by trials judges in identifying and applying them, and the appropriateness of their application in some sexual offence cases have been extensively discussed in recent decisions of the Court of Criminal Appeal in New South Wales: see GPP v. R[25] (Heydon, J.A., Wood, CJ at CL and Carruthers, A.J.); BWT v. R.[26] (Wood, CJ at CL, Sully and Dowd, JJ.); SJB v R[27]. (Sheller, J.A. Levine, and Simpson, JJ.); WRC v R[28] (Hodgson, J.A., Greg James and Kirby JJ.) For the reasons which I will state it is unnecessary in the circumstances of this case that I undertake an extensive review of those authorities, although I share many of the concerns expressed in those judgments as to the difficulties created for trial judges by the continuing uncertainty as to the application of the Longman principles.

For the purposes of the present appeal some propositions may be stated with relative confidence. In Longman two related but distinct areas were identified in which a warning might be required to be given to the jury, in a sexual offence case, that it was dangerous to convict on the uncorroborated evidence of the complainant. Both categories arose by virtue of the effect of delay which occurred between the time of the alleged happening of the offences and the time when complaint was first made and/or the time when the trial was conducted. The necessity that there be a warning was an application of the broader duty of a trial judge to ensure that an accused person receive a fair trial. In the joint judgment of Brennan, Dawson and Toohey, JJ. their Honours held that: "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."[29] The question for the trial judge was whether "by reason of the whole of the circumstances of the case" a Longman warning was required[30].

The first area identified in Longman as necessitating a direction that it was unsafe to convict was stated in the joint judgment of Brennan, Dawson and Toohey, JJ. This category has been described as the "loss of forensic advantage"[31] which long delay causes for an accused person, or more expansively, "the difficulties of testing and disproving allegations by reason of the passage of time"[32]. The second area in which such a warning might be required was identified in the judgments of Deane,J. and McHugh,J. in Longman. This has been encapsulated as the effect of delay on "Honest but erroneous memory"[33], or, again more broadly, as the need to warn that it is dangerous to convict 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"[34].

In the joint judgment in Longman their Honours identified the following significant factors, as being relevant to the question whether in all the circumstances of the case a direction was required: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events, the fact that she was said to have been woken from sleep by the assaults, and the absence of complaint to her mother or the accused. Their Honours accepted that those factors might have led the judge to make a "comment" to the jury about the need for care in evaluating the evidence but they did not conclude that those matters, in themselves, necessitated a warning by way of direction.

The one factor which their Honours identified in the joint judgment as necessitating a direction or warning related to the factor of forensic disadvantage, and they held that a warning was required because that was a matter which "may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them"[35].

In the following passage from the joint judgment in Longman I have highlighted words which emphasise the unalterable effect and the severity of the forensic disadvantage which their Honours identified in that case and the seriousness of the risk of a miscarriage of justice. In a passage which also underlines the fact that the Longman warning derives from the broader duty to ensure a fair trial, their Honours held:

"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 (N.S.W.)) 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."[36]

Deane, J. also placed the Longman direction within the context of a broader obligation on a trial judge, to intervene when judicial experience identified a risk to a fair trial. His Honour held:

"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of 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."

Deane, J. held that the very long delay in making complaint did not of itself impose an obligation that a warning be given that it was unsafe to convict, notwithstanding his acknowledgment: `True it is that such delay can be disadvantageous to an accused"[37]. Such disadvantages, his Honour held, could, if sought, be addressed by a "direction" (by which, in context, his Honour meant "comment", as opposed to a "warning" that it was dangerous to convict) which drew attention "to the particular disadvantages" which faced the accused in presenting his case so long after the events. It was, however, by virtue of the combination of the circumstances of the alleged offences ("of this very unusual case"[38]) and the potential effect of delay as between the events and both the complaint and the trial that he concluded that a warning was required in that case.

Deane, J. highlighted the "intrinsic unreliability" of the uncorroborated evidence of a child which arose "in the particular circumstances of the case". The particular circumstances he identified were that the complainant, who was now an adult, was recounting events said to have occurred to her as a very young child when she was half asleep or awakening from sleep. Deane, J. held[39] that as to the experience of a child in those circumstances "the long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality." His Honour said that contemporaneous questioning of such a child might have enabled fact to be distinguished from fantasy.

In his judgment, McHugh, J. also recognised the broader duty of a trial judge to make the jury aware of dangers in the evidence[40]. His Honour stressed that it was the "long period of delay"[41] between the events and complaint that raised a significant question about the reliability of the evidence (however honestly now given, more than 20 years later) concerning events occurring to a child when awakening and then pretending to be asleep. Although his Honour said that the likelihood of erroneous recollection in such circumstances was "obvious" - presumably to anyone, including the jury - "experience derived from forensic contests, experimental psychology and autobiography"[42] demonstrated the high potential for such error. His Honour held that the warning to the jury should include the statement that "experience has shown" that human recollection in such circumstances "is frequently erroneous"[43]. In addition to these factors concerning the unreliability of recollection in such circumstances McHugh, J. also identified the forensic disadvantage of "the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence"[44]. That disadvantage, he said, was caused by delay, the absence of timely complaint and the lack of specificity as to the dates of the offences. Those factors should also be stated to the jury, he held, but his Honour said that the extent to which those factors required elaboration was a matter to be assessed by the trial judge in each case.

As was noted by Kirby, J. in Crampton[45] and as may be seen from the passages cited above, the requirement of a warning (rather than, perhaps, a mere comment), whether relating to forensic disadvantage or the potential effect of delay in distorting memory, derived from the fact that it was by virtue of judicial experience, that is, an awareness of dangers of which the jurors may have been unaware, that the warning was being given.

The circumstances of the case relevant to a Longman warning

As noted earlier, whether the case calls for a comment or Longman warning (or neither) requires the trial judge to consider the whole circumstances of the case[46]. Counsel for the applicant contended that in the circumstances here a warning that it was unsafe to convict was required under both limbs identified in the judgments in Longman, namely, potential unreliability and forensic disadvantage caused by delay.

Counsel for the applicant listed the following circumstances which the trial judge should have taken into account: the fact that the date of the offence could not be more precisely identified than within a 14 month period; the delay in complaint of up to 16 months; the allegations concerned one day only; the complainant would have been as young as 4 years 4 months or only as old as 5 years and 9 months when the offence allegedly occurred; there was a three years' delay between the date of first complaint and the commencement of the trial; the jury had heard but rejected evidence of a second complainant, the first cousin of "E" concerning a similar complaint; "E"s evidence was uncorroborated; there was nothing out of the ordinary as to the day of the alleged events and which would enable the applicant and his sister to more readily identify the occasion; the applicant could have established an alibi, it was said, because he worked on some days of the week and his sister would also have been at home on some days in the week.[47]

In my opinion, nothing stated in Longman itself nor in the other High Court decisions to which I will refer compels the conclusion that a warning that it was unsafe to convict - on either of the two bases discussed above - ought to have been given in this case.

In Crampton there had been a delay of 18 years from the alleged offence of indecency and of complaint being made by the first of two male complainants. In Crampton, as in the present case_,_ the defence of the accused was an outright denial that the alleged incidents ever occurred but in their joint judgment Gaudron, Gummow and Callinan, JJ. rejected the contention that any potential forensic problem caused by delay and any suggested impairment of the memory of events were less important considerations because the defence was an outright denial that any event could ever have occurred. Extreme youth of the victims (who were year 6 students at the time) was not an element in Crampton nor were there special factors such as the events having occurred when the complainant had suddenly woken. Nonetheless, the Court held that a Longman warning was required, having regard to the delay in complaint.

The necessity for the warning and the terms in which their Honours said the emphatic warning should have been given related primarily to the forensic disadvantages caused by "the very great delay"[48]. Their Honours held that a Longman warning was required because the denial to an accused of the forensic weapons that "reasonable contemporaneity" provides constituted a significant disadvantage which a judge must warn against in an unmistakable and firm voice. Their Honours did not conclude that the factor of fragility of recollection of itself required a direction that it was unsafe to convict on the uncorroborated evidence of the complainant. Instead, their Honours merely said that it was a case where it would have been appropriate to have "drawn attention"[49] to that consideration also, by identifying such factors as the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion."[50]

The factor of forensic disadvantage was also identified by Kirby, J., who, as in the joint judgment, regarded the warning as being one which brought to bear, and was occasioned by, judicial experience as to the dangers of a miscarriage which a lay jury would or might not themselves appreciate[51]. As I shall discuss, Kirby. J. accepted that such a warning might be required even in cases where the delay was considerably shorter than in that case. Hayne, J. held that the critical feature of the case was the delay of "many years" and the significant forensic disadvantage that that entailed, and about which the jury might have no appreciation[52]. Gleeson, C.J. and McHugh, J. agreed with the judges in the joint judgment that the requirements of Longman had not been met.

In Doggett the delay in first making complaint was 10 years and the trial commenced 20 years after the alleged happening of the first offence. A warning was held by a majority in the High Court to have been necessary notwithstanding the fact that there was corroboration in that case. In Doggett the first of seven offences was alleged to have been committed against the complainant when she was eight years old and the last when she was 15. There were a number of unusual features in the circumstances of Doggett, which their Honours identified and which raised serious questions about the reliability of the complainant's evidence, notwithstanding the fact that there was some corroboration from a taped telephone conversation held between the complainant and the accused man.

In his dissenting judgment in Doggett Gleeson, C.J. considered that this was an instance in an adversarial system where, far from intervening with a warning, the trial judge was right to have left matters to the jury. No Longman warning had been sought at trial and Gleeson, C.J. observed that the case was fought on the basis that delay in making complaint, and forensic disadvantage due to delay, were not issues of importance. The Chief Justice and McHugh, J. both concluded, in dissent, that the fact that corroboration existed meant that Longman had no application. McHugh, J. noted that all of the offences were said to have occurred in the family home, and that the case was conducted by the defence as one where the complainant could not have been mistaken but had to be lying. His Honour rejected the need for a warning, notwithstanding the fact that "[i]n theory at least" the appellant might have been better able to defend himself and to have produced alibis had more timely complaint been made, and had there been more specificity as to times and dates of the offences. He concluded that whilst a "comment" might appropriately have been made by the judge an intelligent jury would have appreciated for themselves that delay meant that the accused could do no more than simply deny the allegations. A "warning" was not obligatory.

In their joint judgment in Doggett Gaudron and Callinan, JJ. adopted what had been said in the joint judgment in Crampton as to the dual focus of a Longman direction on problems of recollection and forensic disadvantage. Their Honours saw the need for a Longman warning - that it was dangerous to convict - as arising in that case primarily because there were significant features of the case which cast doubt on the reliability of the complainant's evidence, although their Honours also saw it as a case concerned with forensic disadvantage.

As to the potential or actual forensic disadvantage, their Honours highlighted "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".[53]

Kirby, J., whilst accepting that the appellate courts had to allow a wide degree of flexibility to trial judges to determine what, if any, comments or warnings were required in a case (when having regard to the issues in the trial), held[54] that such flexibility was subject to the overriding duty of the judge to ensure a fair trial. His Honour identified in the circumstances in Doggett both aspects of danger to a fair trial which were addressed by a Longman warning, namely, loss of forensic advantage and the problems of erroneous memory.

In Dyers only Kirby J and Callinan J discussed Longman in any detail, and neither would have upheld the appeal on the basis of complaint concerning the adequacy of the Longman direction. Dyers was a case where complaint was made some five years after the alleged offence and where the indictment was not filed until eleven years after the alleged offence. The precise date of the offence was known and the accused had records which enabled him to provide an account of his whereabouts at the time of the alleged offence. Although rejecting the ground of appeal concerning the Longman direction Kirby, J. (with whose reasons for rejecting this ground of appeal McHugh, J. agreed) held that it would have nonetheless been prudent for the trial judge to have given a full Longman direction.

Was the delay such as to require a Longman warning?

Sully, J. observed in BWT, that the High Court decisions must be taken to require that in any case of substantial delay a Longman direction must be given by the trial judge[55],. I agree that some form of warning would usually be required, but the requirement flows from the overriding obligation of the trial judge to take such steps as may deemed necessary to ensure a fair trial, and that consideration might dictate that a different course be taken in an appropriate case. Additionally, whilst accepting that some form of warning would usually be required I leave open the question whether the contents of such a warning, or the emphasis, would need to be in the terms suggested by Sully, J. in sub-paragraphs [1](b)(c)(d) of the lengthy summary which appears at paragraph [95] of his Honour's judgment. The decision in BWT was not the subject of argument before us and I would prefer to leave the question open. Generally, however, it must be taken that in the case of long delay forensic disadvantage is presumed to exist, thereby posing a danger of a miscarriage of justice[56].

Arguably, although judicial opinion in the High Court on this matter is not unanimous, where there is long delay the factor of the deficiencies of recollection will also require a warning that it is dangerous to convict on that account, too (albeit that any such warning must not conflict with any legislative prohibition).

In BWT, after an extensive review of the High Court decisions, whereupon he summarised their effect, Sully, J. (with whom Wood, C.J. at C.L. and Dowd, J. agreed) concluded that the need for a Longman direction had to be addressed by the trial judge in any sexual offence case where some delay had occurred, even if only short. Placing particular emphasis on the statements of Kirby, J. in Doggett, Sully, J. said that the prudent judge should address that question as follows:

"[The judge] should concentrate upon two related factors, namely, the actual lapse of time involved in the particular case; and the actual risk of relevant forensic disadvantage in the particular case. It seems to me that, as matters stand, a trial judge would be well advised to give a Longman direction unless it is possible to conclude reasonably: first, that the particular time lapse is so small that any reasonable mind would regard it as, in context, trifling; and secondly, that the risk of relevant forensic disadvantage would be seen by any reasonable mind as (to borrow from Mason, J. in Wyong Shire Council v. Shirt (1980) 146 C.L.R. 450 at 47), 'far-fetched or fanciful'"

Kirby, J. in Dyers held that in his lengthy summary (of which the above paragraph forms part) Sully, J. correctly stated "the present law". McHugh, J. agreed with the reasons of Kirby, J. concerning the Longman direction[57]. It is not clear to me, however, that Kirby, J. was endorsing the test which Sully, J. propounded should, in future, guide the prudent trial judge, but if he was then I am not persuaded that the other members of the High Court (with the possible exception of McHugh, J.) have deemed it to be prudent that a full Longman direction be given in all cases where delay is merely more than trifling and where the risk of forensic disadvantage can not be graded as merely far fetched or fanciful[58].

Although the judges in the joint judgement in Crampton stressed the importance of there having been "very great delay", Kirby, J. stressed that the duty to ensure a fair trial might require that a warning be given even where the delay was considerably shorter than 19 years (and cited Jones v. the Queen where the warning was held to be required after a four year delay, and Crofts v. The Queen[59], where the delay was 6 years). The Longman warning was required, he held, because: "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"[60]. Although his Honour variously spoke of the "significant" and "long" delay which required that the warning be given, he accepted that the same reasons for warning might arise after a much shorter delay.

"Nevertheless, delays in complaint, accusation and formal charge, sometimes involving years and even decades, commonly present serious forensic difficulties for the effective defence and fair trial of an accused. These difficulties were explained in Longman. Because some of the difficulties may not be within the jury's knowledge, Longman requires that, when appropriate, the judge must warn the jury about them".[61]

"The criterion for the provision of a warning as stated in Longman is not mathematically precise. For example, in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary. However, the longer the delay, the clearer is the obligation to give the warning to the jury along the lines at least of that stated in the joint reasons in Longman. In an appropriate case it would also be as well for the warning to contain reference to the additional consideration mentioned by Deane, J. and McHugh, J. in their separate reasons."[62]

In Dyers Kirby, J., while concluding that a Longman warning was not required to have been given, nonetheless said that it might have been prudent for the trial judge to have done so. His Honour emphasised that it was intended by the High Court that the requirement for the giving of Longman warnings be rigorous and that trial judges comply with that requirement, even in cases of short delay, such as Jones. Kirby, J. held that

"there is no mathematical formula applicable to a case of delay so that it can be said with certainty that, for a specified delay, a Longman warning must, or need not, be given to a jury. As in all such matters, it is necessary to consider the trial judge's instructions in the context of the contested issues in the trial and all of the evidence"[63].

Kirby, J. held that it was only because there were unusual features in Dyers that a full Longman direction was not deemed obligatory, but that the same period of delay as in Dyers (four years) might have been more significant in another "and more typical case"[64].

If the test postulated by Sully, J. for the prudent judge is to apply in sexual offence trials then the obligation for a warning would seem to have extended very far from the situation which was addressed in Longman itself. In the passage of the joint judgment in Longman which I earlier quoted[65]

I highlighted the many words used by their Honours which emphasised that (by virtue of the combined weight of the many circumstances of that case and the delay of more than 20 years) the delivery of a warning was imperative. In Longman, the joint judgment held that the opportunity of testing the case "was gone", and that the fairness of the trial had "necessarily" been impaired. Their Honours concluded that the warning was imperative because in the whole circumstances of that case there was a perceptible risk of a miscarriage of justice. The perceptible risk was one which judges would appreciate but jurors might not.

The majority of judges in the High Court would seem to continue to place emphasis on their being substantial delay, no judge suggesting that any delay which was more than trifling or any risk which was more than far fetched or fanciful might necessitate a Longman warning. In Crampton, for example, Gaudron, Gummow and Callinan, JJ. held that it was "by reason of the very great delay"[66] in that case (19 years) that the accused could not adequately test and meet the evidence of the complainant. Their Honours' observed that the trial judge's authority was required to highlight "the denial to an accused of the forensic weapons that reasonable contemporaneity provides" (my emphasis)[67].

It is clear, however, that a Longman warning may be required in cases where the delay has been much shorter than in Longman or Crampton, and certainly so when the trial judge applying judicial experience discerned a perceptible risk of a miscarriage of justice in the circumstances of the case, whether by virtue of forensic disadvantage or by reason of concerns about the reliability of the evidence, or for both reasons. The greater the delay, the more likely it is that a Longman warning will become necessary, and the more likely it will be that the warning will address all or most of the factors concerning reliability of evidence and forensic disadvantage which have been identified in the judgments in Longman and the cases cited above, as being factors arising from delay which produce the danger of a miscarriage of justice.

The question arises, at what point is delay so great that that it must necessarily require that a warning be given? I turn to the cases identified by Kirby, J. as examples where warning were required to be given notwithstanding that the delay was much shorter than in Longman.

In Crofts v. The Queen the delay in making complaint was six years, which was held to be "objectively substantial, being a matter of years"[68]. In their joint judgment Toohey, Gaudron, Gummow and Kirby, JJ. approved a passage from the judgment of Street, C.J. in R. v. Peval[69]. Their Honours held, as to the six year delay:

"Delays of that order require a trial judge to give "the jury a direction which [is] meaningful, and which [is] adequate to enable the jury to make a responsible evaluation of the matter"".

In Crofts several errors in the conduct of the trial were identified. In the first place, the judge allowed evidence of uncharged sexual acts, which the High Court held was very prejudicial and ought not to have been admitted. In addition, the trial judge had failed to correct an erroneous direction he gave to the jury concerning the delay in making complaint. The judge had misconstrued the effect of s.61 of the Crimes Act and directed the jury that as a matter of law they could not regard the absence of complaint as evidence that the events did not happen, rather than merely precluding the drawing of an inference that an absence of complaint necessarily meant that the allegations were false. In the joint judgment their Honours discussed the effect of s.61(2), which reserved to the judge the right to make any comment that was appropriate in the interests of justice. Their Honours held that that provision maintains the abiding judicial duty to assist the jury in weighing the potential significance of delay, in the circumstances of the particular case[70].

The joint judgment in Crofts held that s.61 had not interfered with the overriding duty of the trial judge to ensure a fair trial. The section did not prohibit the judge from making "comment" or "warning" on aspects of the case which "on ordinary human experience"[71] would be material to the evaluation of the facts. In Crofts the majority held that because of the substantial delay the jury "were entitled to accurate assistance by the trial judge concerning the legal significance of the absence of complaint soon after the alleged incidents"[72]. Instead, the Charge they were given involved a misdirection as to s.61 and a lack of balance. Their Honours held that the delay of six years was so "objectively substantial" as to require a direction concerning delay which provided a proper balance to the direction given under s.61(1)(b). Their Honours held that the instruction constituted an appropriate "critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration"[73]. The decision in Crofts, did not involve any elaboration of the factors in a six year delay which of themselves created a risk that the trial would not be fair. In my opinion, the delay of 16 months, in the present case, is not so "objectively substantial" as to require that a Longman warning be given.

In Jones v. The Queen[74] convictions were set aside as unsafe and unsatisfactory where offences against a female child then aged 11 or 12 years had not been the subject of complaint for four years. Only Brennan, C.J. among those in the majority expressly applied Longman, but in the joint judgment of Gaudron, McHugh and Gummow, JJ. their Honours identified a number of aspects of the complainant's evidence which raised serious questions as to its reliability, and on which the jury had not received warning from the trial judge that they should scrutinise the evidence with great care. Their Honours held that in some cases (and, they said, that was one) the forensic disadvantage caused by delay hampered the defence in a way that contributed to a verdict which was unsafe and unsatisfactory. Their Honours referred to a number of topics on which timely investigation could have been important and held that the accused's opportunity of obtaining evidence as to those matters "was significantly reduced"[75] by the delay in making complaint.

Brennan, C.J. in J_ones_ also highlighted the significant forensic disadvantages which the accused had actually suffered in his attempts to defend the charge[76]. His Honour cited the passage in the joint judgment in Longman, earlier cited in these reasons, and held that the dangers of a miscarriage of justice there identified also applied in this case, and a warning was necessary.

Kirby, J. in dissent, held that although it would have been better that reference had been made by the trial judge to the forensic disadvantage of the delay, which he regarded as being "significant and obvious", what had been said was sufficient in the circumstances.

It is important to note that in Jones identification of the days on which the offences were alleged to have occurred would have been very important as the accused, a gymnasium instructor, denied that there had been the opportunity at any time for him to have been alone with the complainant and he had alibi witnesses available as to many of the days in the week.

So far as I am aware, the shortest period of delay which an appellate court has held necessitated a Longman direction was about three years. The delay in complaint was three and a half years in R. v. Jolly[77] and of about that order in R v Omarjee[78] and R v Miletic[79].

In Jolly the trial judge agreed to give a Longman direction in that case but the Court of Appeal held that the direction given was inadequate. As the judgment of Kenny, J.A. makes clear[80], that case had some unusual features. The offences were alleged to have been committed on a 10 year old child while she was in the company of the stepdaughter of the accused. Some important features of her evidence had not been mentioned when she eventually discussed her allegations with friends some three and a half years after the events. The stepdaughter gave evidence denying that the events had occurred. Kenny, J.A. did not state that the necessity for a Longman direction arose by virtue of forensic disadvantage but because this was a case where, in the circumstances, there was a perceptible risk of a miscarriage of justice. There was no issue of forensic disadvantage because the date of the alleged offences was known and there was no additional forensic investigation which might have been conducted had the complaint been made earlier.

In my view, Jolly was a case where the warning was required to be given in response to the obligation of a trial judge to ensure a fair trial, and by reference to the dangers perceived by the trial judge in evaluating the reliability of the evidence. Kenny, J.A. held that there was "potential for error" having regard to the many circumstances which suggested unreliability of the complainant's evidence. That called for a firm warning calculated to afford the jury a full appreciation of the dangers of proceeding on the uncorroborated evidence without subjecting it to careful scrutiny[81]. The case really turns on its own facts.

A similar conclusion may be reached as to the other cases. In Omarjee the delay in complaint was three years but there were unusual features of the evidence of the complainant which cast substantial doubt on the reliability of the evidence. In Miletic the complainant, an adult, had lived with the accused for up to three years after the alleged offence and first complained of it only after the relationship broke down. The complaint was in such vague terms that the court held that the accused had necessarily been prejudiced in the conduct of his defence. Such features are absent from the present case.

The nature of the forensic disadvantage which might be occasioned by delay has been variously described and may be seen to relate, on the one hand, to delay between the happening of an alleged offence and the first occasion on which the allegation of such conduct is brought to the attention of the accused, and, on the other hand (and even if there had been relatively early first notification of the complaint), to delay between the date of the alleged offence and the date of trial. Early notification that an allegation had been made against him enables the accused person to take steps towards his defence while witnesses and evidence are available. But even with early notification of a complaint the delay in prosecution may itself produce forensic disadvantages by virtue of the fact that the evidence of the complainant may be so generalised and vague on account of the delay that it is difficult to test it in cross-examination.

Kirby, J. in Crampton identified both types of disadvantage. He first observed:

"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 twenty 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, twenty 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."[82]

His Honour then identified the other aspect of the disadvantage:

"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 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."[83]

It may be said that in any sexual offence case any delay in complaint might have forensic disadvantages for the defence. In Doggett Gaudron and Callinan, JJ. identified the forensic disadvantage caused by delay as "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"[84]. However, as Wood, C.J. at C.L. observed in BWT[85], the warning may be two edged for an accused because the jury having been satisfied that no forensic disadvantage had in fact been caused might more readily then convict. Furthermore, as Greg James, J. noted in WRC[86], delay might work to the advantage of the accused and the disadvantage of the Crown.

In the New South Wales cases which I have cited earlier, there has been much debate as to whether, even in cases of long delay, the Longman requirements do or ought oblige there to be a warning where no actual forensic disadvantage has been occasioned or where it is a mere possibility that it might have been.

In BWT Wood, C.J., at C.L. observed that in every case where there had been substantial delay the High Court cases demonstrated that in effect there was "an irrebuttable presumption"[87] that the delay had prevented the accused from adequately testing and meeting the complainant's evidence, and that a warning was therefore mandatory. His Honour noted, however, that in the various judgments of the High Court it was sometimes the possibility of disadvantage rather than the actuality of disadvantage which was said to require that the warning be given[88]. His Honour concluded that a trial judge was required to give a Longman instruction in equally positive terms "in every case involving a substantial delay, irrespective of whether or not there is any evidence, or basis beyond suspicion, that the absence of contemporaneity between the alleged offence and complaint, or trial has in fact (not might have) denied to the accused a proper opportunity to meet the charge or charges brought ..." (emphasis in original and citations omitted)[89].

It is not necessary for me to enter the debate as to whether a warning was required when no actual forensic disadvantage had been identified. In my opinion, even if (contrary to my opinion) the sixteen month delay in this case did produce forensic disadvantage it could not have been of a character as to which there was special judicial awareness of the danger of a miscarriage thereby and which thus required that a warning be given.

In the course of his discussion of these issues in BWT, Wood, C.J. at C.L. expressed difficulty with the notion that a Longman direction had to be given in a case, for example:

" . . . where the complaint related to a time and place where the accused was in fact living alone with the complainant, and in circumstances where, no matter what inquiries were made, the case became one of word against word, such that rebuttal evidence could never have been obtained"[90].

The example chosen by his Honour is in many ways close to the present situation in that there was really no issue as to opportunity in the present case and the trial would inevitably be fought as word against word. Whilst it is true that even in such circumstances some contemporaneous investigation may have produced material which might have bolstered the defence case it is difficult to conceive how that might have been so in this case, and, save for the question of alibi, counsel for the applicant could not postulate any such investigation but merely suggested that the lack of specificity as to the date of the offence was an important factor militating against forensic investigation, had any been contemplated.

In Longman[91], McHugh, J. considered that the fact that there was a lack of specificity as to the dates on which the offences occurred was one factor, coupled with delay, which produced the result that the accused had been unable to examine the circumstances of the offences, as he might have done had timely complaint been made. It was a factor of forensic disadvantage. Thus, rather than lack of specificity as to the date of the offence being a factor which reduced the need for a warning, it was a factor which made it more necessary. In Dyers, a case where opportunity to commit the offence was denied by the accused, both Kirby, J. and Callinan, J. considered that the necessity for a Longman warning was reduced because of the fact that the accused knew the date of the alleged offence. He was not hampered in his investigation of the events of that day. While the delay would have had an impact on the recollection of witnesses that was not regarded by either judge as sufficient factor to require a Longman warning. I will assume, therefore, that the lack of specificity as to the date of the offence was capable of causing forensic disadvantage.

However, whilst the possibility can not be denied that a 16 month delay might disadvantage an accused person in the ways discussed by Kirby, J. in Crampton, in the passages above, in the present case any such disadvantages could only have been of marginal significance. No actual forensic disadvantage was asserted in this case, save for the assertion of counsel that the applicant was denied the opportunity to establish an alibi which would have been available to him had complaint been made promptly. I turn, then, to that question.

In my opinion, delay had no bearing on the prospect that an alibi might have been set up in this case. Unlike the situation in Jones (where there had been a four year delay) there was no dispute in this case that the applicant had the opportunity to have committed the offences, because he agreed that there were times when he had been the only adult in the house when the complainant was present. Thus, although he might have been able to establish days on which the offence could not have occurred that would not provide an alibi as to the day of the alleged offences.

As noted, earlier, the complainant suggested (but not confidently), that her grandmother was also at home when the offences occurred, being outside the house, hanging washing. That possibility would not have significantly altered the applicant's situation as to alibi, because opportunity to commit the offences could not be denied, albeit that there may have been less likelihood that the applicant would take the risk of committing offences in such circumstances. The grandmother's evidence was such as to make that point, in any event. She said that she would not have allowed the child to enter the applicant's room, and that she had never seen any evidence of impropriety.

In my opinion, the length of the delay in the circumstances of the present case, having regard to the narrow compass of the contested issues, was not such as of itself to indicate that the applicant suffered actual or even potential forensic disadvantage of the kind discussed above, so as to raise a reasonable concern that there was a risk of miscarriage if the jury were not warned in terms of Longman.

I turn, then, to consider whether there were any other factors in this case which (perhaps when taken together with such forensic disadvantage as might be arguable) would require that a Longman warning be given. These might be factors raising concern regarding faulty recollection or factors which otherwise cause concern that on account of the (maximum) sixteen month delay in making complaint (or for any other reason arising from the evidence) there was a danger of a miscarriage of justice which the jury might not have appreciated and about which there was special judicial experience.

Danger of erroneous memory and other possible grounds for a warning.

The main factor other than one relating to forensic disadvantage which was identified as justifying a warning was the extreme youth of the complainant when the offences were alleged to have occurred. Additionally, counsel suggested that the lack of detail provided by the complainant in her evidence and the possibility that she was confusing fantasy with reality were other matters which should have been identified as making it dangerous to convict on her uncorroborated evidence. Primarily, however, it was the complainant's age which was relied upon as necessitating the Longman warning. That, was, indeed, an important factor. The question is whether that factor in itself or coupled with other factors required a warning be given that it was dangerous to convict on her uncorroborated evidence.

As noted earlier, in the joint judgment in Longman it was the forensic disadvantages which arose after a 20 year delay which was "the one factor" which required that there be a direction rather than a comment, so that the jury should have been directed that for that reason the complainant's evidence "could not be adequately tested" after 20 years, and thus it "would be" dangerous to convict. None of the factors of the youth of the complainant at the time of the alleged offences, the delay of so many years, the nature of the allegations, or the fact that the complainant had been asleep were regarded by the judges in the joint judgment in Longman as requiring any warning, at all, be given. The "fragility of youthful recollection" was identified in the joint judgment in Crampton as one factor to which the judge should have "drawn attention", but was not suggested to have been a reason either of itself or when combined with other factors for a Longman warning to have been given.[92]

Section 23(2A) of the Evidence Act precluded the jury being told that children, as a class were unreliable witnesses. That sub-section is subject to sub-section (2B) in which it is stipulated that a judge was not precluded by sub-section (2A) from making such "comment" on the evidence as was appropriate in the interests of justice. In decisions relating to a similar term used in s.61 of the Crimes Act and its interstate equivalents it has been held that "comment" would permit a judicial direction to also be given in an appropriate case that it was dangerous to convict on the uncorroborated evidence of the complainant[93]. The judge in this case expressly declined to give a warning that it was dangerous to convict on the complainant's evidence. His Honour, thus, did not consider that it was in the interests of justice to do so. Can it be said that he was obliged to give such a direction and to do so with the weight of judicial authority as derived from judicial experience, and in order to identify a danger of a miscarriage of justice which a jury might not itself have perceived?

In my opinion, there were no factors relating to the age of this complainant or to the nature of the account which she gave in evidence that would have borne upon or provoked any special knowledge held by judges concerning the reliability of her evidence and which thereby required a direction be given over and above that which was in fact given in the first passage of the judge's Charge which I earlier quoted.

The jury were obviously well aware that it was critical evidence being given by a very young child. It might be safely assumed that the combined wisdom of a jury as to the evaluation of such evidence would be in no way inferior to that of a judge. Whilst that assumption might not necessarily be made when a complainant was giving evidence as an adult of events which had occurred to her as a child, the jury in this case heard her give evidence as a child not far advanced in years beyond that when the alleged offences occurred.

A warning was, in fact, given in this case concerning the dangers inherent in the evidence of the complainant. While I do not regard the warning as being a model direction for such a case, and while many judges might well have said more, either by way or warning or comment - having regard particularly to the age of the complainant - I am not persuaded that any perceptible risk of a miscarriage of justice was demonstrated which required that more be said by way of warning than was said, or in more emphatic terms, or required that a warning be given also as to forensic disadvantage. The comment that was made concerning forensic disadvantage was favourable to the defence and was more than was required. Indeed, had his Honour attempted to enumerate the forensic disadvantages which the accused might have suffered that may have been to the disadvantage of the applicant, because the jury might well have been unpersuaded that there was any disadvantage, at all, caused by the 16 month delay.

As Kirby, J. noted in Dyers[94], when an appeal court is considering the adequacy of the direction which was given it must consider the trial judge's instructions in the context of the contested issues in the trial, and all the evidence. In Doggett[95], although emphasising the overriding duty of the trial judge to ensure a fair trial, Kirby, J. affirmed that "wide latitude" must be reserved to the trial judge to provide such warnings and comments as the circumstances and the conduct of the trial required.

The trial judge, in my opinion, identified the issues which the jury had to decide. All of those questions were before the jury. The very question of uncertainty or vagueness of the witnesses' evidence was at the heart of the defence case. The jury knew how young the complainant was and had seen video footage of her at age 5 when she made the allegation, and then saw her give evidence at age 8. There was no special judicial experience which called for more to be said to warn the jury of any danger which would not have been obvious to them in this case, nor any special factor of unreliability which demanded a judicial warning in the terms for which counsel for the applicant contends.

As Deane, J. held in Longman[96], the ultimate issue for the appeal court is whether, viewed in the context of the summing-up as a whole, and of any other particular or general defects in it, the effect of the absence of a warning of that kind is that there is a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory. In determining that issue the court must make due allowance for the advantages enjoyed by the trial judge.

In this case the trial judge seems to me to have precisely identified the relevant issue in the case and in addressing that question no factor of delay introduced the spectre of a miscarriage of justice. In my opinion, it would be moving a long way from Longman to conclude that as a matter of prudence a full Longman warning was to be given in almost every case (including this case) where there was some delay, even where no actual forensic disadvantage could be identified and where any potential disadvantage was of relatively limited significance.

I conclude that the content of the Longman direction given to the jury by the trial judge was adequate in the circumstances of the case and that ground 2 therefore fails. Having so concluded, the verdicts were not unsafe or unsatisfactory and ground 3 also fails. The application for leave to appeal against conviction should be dismissed.

[2] (2002) 76 A.L.J.R. 1552; 192 A.L.R. 181.

[6] [1997] 1 V.R. 593 at 605, 606. It should be noted that, although a number of observations in Carr v. The Queen [1988] HCA 47; (1988) 165 C.L.R. 314 (cited in the fourth paragraph of the passage quoted by Callaway, J.A.), were not followed in McKinney v. The Queen [1991] HCA 6; (1991) 171 C.L.R. 468, the particular passage cited from the judgment of Brennan, J. (at 330) was not disapproved and remains unimpaired.

[8] See, for example, Azzopardi v. R. (2001) 205 C.L.R. 50 at [49]-[50] and Doggett v. R (2001) 208 C.L.R. 343 at [115].

[9] The word "comment" in s.61(2) and (3) includes a warning or direction. It is not used in the sense of an observation not carrying the authority of the judge's office. See R. v. Miletic at 603.

[12] As to the fragility of youthful recollection (if it is relevant), at the time of the VATE interview or the trial three years later, I agree with Eames, J.A. at [117]-[121].

[13] Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79.

[14] In the present application counsel drew the distinction between the jury being given a mere "comment" as opposed to a "direction". In Longman references to a "warning" may be taken to be synonymous with a "direction", and are to be contrasted with a "comment"; note, too, the synonymous treatment of "warning" and "direction" in R. v. Young [1998] 1 V.R. 402, at 409.

[15] Crampton v. The Queen (2000) 206 C.L.R. 161, at 209, [130].

[16] See Doggett v. The Queen [2001] 208 C.L.R. 343, at 378, [128].

[17] As I later discuss, that sub-section is qualified by sub-section (2B).

[18] Young, at 409 [10]; see, too, R. v. Jolly [1998] 4 V.R. 495 at 502.

[19] As McHugh, J. observed in Longman, at 105-106, the conventional warning had been based on the belief that, as a class, uncorroborated complainants in sexual cases were dangerous and unreliable witnesses. In the present case s.61(1)(a) of the Crimes Act 1958 prohibits any suggestion being made to the jury that the law regards complainants in sexual cases as an unreliable class of witness, but s.61(2) provides that nothing in sub-section (1) prevents a judge making any comment on the evidence that the judge deems appropriate in the interests of justice. The relevance of s.61(3) of the Crimes Act, was not debated before us. That provides that notwithstanding sub-section (2) a judge must not make a comment upon the reliability of the complainant's evidence if there is no reason to do so in order to secure a fair trial. Section 23(2A) of the Evidence Act 1958 more particularly prohibits any suggestion being made that the law regards children, in any case, as being an unreliable class of witness. Section 23(2B) similarly allows a "comment" to be made where it is in the interests of justice to do so. As I later discuss, "comment" in both sections may be taken to extend, where appropriate, to the giving of a"direction".

[24] The differences in approach or emphasis being noted by Kirby, J. in Dyers v The Queen (2002) 76 ALJR 1552, at [55]; In GPP v R [2001] NSWCCA 493; (2001) 129 A. Crim. R. 1, at [57] Heydon, J.A. saw "sharp divisions" within the High Court as to Longman.

[29] Longman, per Brennan, Dawson and Toohey, JJ. at 86; McHugh, J., at 109, spoke of the "requirement of a fair trial" as the basis for the strong warning of the potential for error in the evidence of the complainant; see, too Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427, at 446. In Crampton, at 208 [127] Kirby, J. held that these judicial warnings reflected "the paramount duty" of a judge to ensure a fair trial; In Doggett, at 374, [119] Kirby, J. held that a trial judge had a "general duty to warn the jury that it would be unsafe to convict the accused on the uncorroborated evidence "where it was "necessary to avoid the perceptible risk of miscarriage of justice arising from the particular circumstances of the case"; In R. v. Johnston (1998) 45 NSWLR 362, at 375, Speigelman, C.J., Sully and Ireland, JJ. concluded that it was the impact of delay on the fairness of the trial with which Longman was concerned.

[31] Doggett, at 375 [121], per Kirby, J.

[32] Crampton, at 180 [42] per Gaudron, Gummow and Callinan, JJ.

[33] Doggett, at 376 [124], per Kirby, J.

[34] Crampton, at 180 [42] per Gaudron, Gummow and Callinan, JJ.

[45] Crampton, at 209, [130]-[131], per Kirby, J.

[46] Doggett, at 374, [119,] per Kirby, J.

[47] Another issue was raised in the written submission concerning some evidence which was tended by mistake, but that matter was not pressed in oral argument as being a circumstances to be taken into account.

[51] Crampton, at 209, [130]-[131].

[54] Doggett, at 373, [115] - [119].

[56] In BWT Wood, C.J. at C.L. held, at 247 [14] that in a case of substantial delay the effect of the High Court decisions was "to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant's evidence" and that the jury must be so warned irrespective of whether that was in fact the case. That, with respect, may impute a greater rigidity to the application of Longman principles than the decisions of the High Court require.

[58] The reasons of Sully, J. concerning Longman were followed by the Court of Criminal Appeal in SJB and by the majority in WRC.

[67] The delay in each of the New South Wales cases to which I have referred was considerably longer than the present case and in each there were features suggesting unreliability which were absent from the present case. In GPP the trial was conducted some 18 years after the alleged events; in BWT the earliest offence was alleged to have occurred 21 years before arrest, the latest some 15 years; In SJB the complainant was 29 when she gave evidence of events occurring when she was aged 11 or 12, and first complained to a friend (who disputed her evidence) four years after the events and to police 16 years after the events; in WRC complaint was made to police some 20 years after the events.

[74] Jones v. The Queen (1997) 191 C.L.R. 439.

[77] R. v. Jolly [1998] 4 V.R. 495.

[83] Crampton, at 209, [131]; see, too, WRC, at 138, [142-143] per Kirby, J.

[84] Doggett, at 356, [51]; See too, the forensic factors discussed by Kirby, J. in Crampton, at 209 [130-132].

[92] In WRC, at 139, [148], Kirby, J. held that the fragility of recollection of one so young as the complainant (who was eight when the offences were alleged to have occurred) required that a warning be given. That position was not adopted by the other members of the Court.

[93] In Crofts, supra, at 450,the High Court approved the decisions of the Court of Appeal in R v Miletic, supra_,_ and R v Omarjee (supra) which held to that effect. In Miletic, at 606, the Court observed that where the judge had no special judicial knowledge or experience in assessing the dangers of the evidence, so that the jury were in as good a position as the judge to assess the matter, then it would only be in exceptional circumstances that a direction, rather than a comment, would need be given. Similar considerations would apply to the operation of s.23(2B), in my opinion.

"We readily acknowledge that there are rules prescribing the directions that a judge must give in particular classes of case. The warning required with respect to the evidence of an accomplice is a familiar example. But such rules should not be unduly expanded. A trial judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice. There are four aspects of that general principle that we desire to mention. First, we emphasise the words 'necessary and practical' and 'perceptible'. A perceptible risk is one that is real or of substance, as opposed to a risk that is insignificant or theoretical. Secondly, we are speaking of directions that require the authority of the judge's office. The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel. Thirdly, an appellate court will attach weight to the judge's assessment of what was required and, in appropriate cases, will infer from counsel's not taking an exception that the direction in question was not required. Fourthly, the consequences of failure to give the direction will depend upon whether, in the event, there has been a miscarriage of justice.

. . .

Where there is no specific rule requiring a particular direction, there must be an identifiable factor or group of factors calling for a direction to be given. It is not for an appellate court to make its own evaluation, for it is not equipped to do so. Counsel for the applicant must identify a specific factor or group of factors that could not safely be left to trial counsel to deal with in his address but required a direction that had the authority of the judge's office. When it is said in the authorities that the necessity for a direction arises from the circumstances of the case, what is meant is that those circumstances must include such an identifiable factor or group of factors and that the form of the direction must be tailored to the facts of the case: see, for example, R. v. Omarjee at 369. In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: cf. Bromley v. R. [1986] HCA 49; (1986) 161 C.L.R. 315 at 324-5 and Carr v. R. [1988] HCA 47; (1988) 165 C.L.R. 314 at 330. Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury."

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