R v K J [2005] VSCA 153

1 I agree with Osborn, A.J.A. that the trial judge, having concluded (correctly in my view) that a warning of the type identified by the High Court in Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79, and Crampton v. R. (2000) 206 C.L.R. 161); and by this Court in R. v. Glennon (No.2) (2001) 7 V.R. 63), should be given to the jury, did not give a warning in the "unmistakable and firm voice" which those authorities require; nor did he adequately outline the reasons which required such a warning to be given.

2 The failure to give the warning in the terms, and for the reasons, which the circumstances of this case required constituted a miscarriage of justice which cannot be saved by the application of the proviso.

3 For these reasons I agree that the appeal must be allowed for the reasons given by Osborn, A.J.A. and a re-trial ordered.

4 I agree with the judgment of my brother Osborn that the application and the appeal against conviction should be allowed and for the reasons which he has stated. I wish only to add the following.

5 The authorities make it clear that a Longman warning should not be understood as the product of any undue tenderness for accused persons or from any suspicion that complainants or, indeed, any class of witnesses are or may be inherently unreliable. It is part of a concession accorded to the prosecution and that very old cases might be permitted to go to trial[1] rather than be stayed for fear that the lapse of time might cause injustice to the accused.[2] It is a warning which is quite separate from the comment or warning which may be directed to the impact of the

passage of time upon the recollection of the complainant and other prosecution witnesses or the inference which the jury might draw from the delay of the complainant in bringing the allegation forward.[3]

6 In summary, the warning must satisfy certain requirements:

(1) It must be, not a mere comment, but a warning couched in firm and unmistakable terms;[4]

(2) It must be made clear to the jury that it is a warning which carries the authority of the judge;

(3) It must be made clear to the jury that the need for the warning arises from the long experience of the law in cases of this kind;

(4) It must identify the particular matters in the case which, by reason of the delay, have left the accused at a disadvantage at the trial and therefore risk causing an injustice;[5]

(5) It must make plain to the jury that, by reason of this disadvantage, it would be dangerous or unsafe to convict the accused on the complainant's evidence alone, unless, having scrutinised the evidence with great care, considering the matters relevant to its evaluation, and paying heed to the warning, the jury is convinced of the truth and accuracy of that evidence.[6]

7 It is clear from cases such as EO [7] that this warning must be tailored to meet the requirements of the case and that its terms and manner of presentation may vary depending upon the circumstances. Nevertheless, having searched the charge in this case to see whether the essential features of this warning are to be found, I regret that, essentially for the reasons set out by my brother Osborn, I, too, have been

unable to conclude that the terms and manner in which the trial judge presented the warning to the jury meet these requirements.

8 Accordingly, I would allow the application and the appeal against the conviction.

9 The applicant is a 55 year old man who seeks leave to appeal convictions and sentence in the County Court at Bendigo on three counts of indecent assault, one count of carnal knowledge and one count of incest.

10 The alleged victim in each case was the applicant's daughter D who was aged 6 at the time of the first alleged incident. The Crown case was that the first two indecent assaults occurred at Kerang in 1977 and 1978. The third indecent assault occurred at Marlo during a three day period at the end of August 1980, the carnal knowledge occurred during the same period and the incest occurred in the early months of 1983.

11 The application for leave to appeal against conviction is directed to two matters. The first is the learned trial judge's direction concerning the applicant's record of interview and the second is the adequacy of the Longman[8] warning given by him.

12 The prosecution called three witnesses at the trial, the complainant D, her mother (the former wife of the applicant), and the informant.

13 D, who was aged 33 years at the time of the trial, gave direct evidence of the incidents giving rise to the charges, including evidence of specific circumstances associated with them. These circumstances were of significance to the Crown case

because they enabled it to put to the jury that it was unlikely an account containing such incidental detail was falsified. Further, a number of the surrounding circumstances in issue were corroborated by the evidence of D's mother. The circumstantial quality of D's evidence was specifically referred to at three points in the judge's charge. First it was referred to when he directed the jury that in assessing a witness they might ask themselves whether or not the evidence of a particular witness is in accord with the 'probabilities of the situation'. Secondly it was referred to when he gave a redirection as to the possible effects of delay upon D's evidence. Thirdly it was referred to when he summarised the final addresses of counsel. In addition, of course, his Honour summarised the relevant evidence for the jury.

14 Although D's mother was able to give corroborative evidence concerning surrounding circumstances which might be said to provide the background to D's evidence, she was unable to give any direct evidence of the incidents in issue.

15 The informant gave evidence that when confronted with D's allegations in 2002 the applicant's response was that they were "all crap".

16 The informant further gave evidence of an edited version of a formal interview with the applicant. In that interview the applicant admitted the historical framework of D's account was accurate as to her age, and various places of residence at particular dates and of his presence at those places. He disputed an extended series of the surrounding circumstances which as I have said the Crown emphasised as part of its case with respect to the credibility of D's evidence.

17 The matters disputed included the occurance of an occasion on which the applicant cut off D's sister's ponytail when they were at Kerang, the nature of clothing which the applicant possessed at relevant times, whether he customarily wore underpants, whether D's sister was taken to hospital by ambulance at the time of the alleged incidents at the end of August 1980, and whether his children had ever helped him stack firewood.

The record of interview

18 In dealing with the record of interview the learned trial judge directed the jury as follows:

"In this case, both the prosecution and of course the accused rely upon the interview the accused had with the police. The prosecution rely upon the accused['s] record of interview to prove such things. For example, as the accused admitting that he was the father of D and the various matters that Mr Bannan outlined to you, and I will come back and explain those matters to you in detail when I summarise Mr Bannan's evidence.

Having relied on the accused man's interview to that degree, it is only just the entire interview, the subject of the conversation he had with Mr Bannan. Both parts that the prosecution rely upon and any exclusions, qualifications, or explanations made by the accused should be put before you so that you may ultimately decide whether the prosecution has proved its case beyond reasonable doubt.

You may think, though, it is a matter for you that the part or parts of the interview that the prosecution rely upon, by that I mean the admissions made by the accused, that he is the father and those sorts of things, are more likely to be true, otherwise why would the accused say those things. As to the part or parts which exculpate the accused you will use your common sense, judgment [in] the way you deal with that. It will be open for you to consider the possibility that in an interview with the police not everything the accused said must be taken as being true, but on the other hand they may be true.

Ultimately, like all matters of evidence, it is for you the jury to give such weight, if any, you think proper in the circumstances to what the accused man has said in the interview. I should draw your attention to the fact [that] when the accused made the answers to the police, in the interview that he had with Mr Bannan, he was not on oath."

19 No exception was taken to this part of the charge.

20 It was however submitted in this Court on behalf of the applicant that in this passage the trial judge wrongly directed the jury that the parts of the record of interview relied upon by the prosecution were more likely to be true than those relied upon by the defence and that his Honour undermined the weight to be given to the applicant's denial of the allegations.

21 The short answer to this contention is that this was not the effect of his Honour's charge. His Honour made clear that the evaluation of the record of interview was a matter for the jury. He was entitled to draw the jury's attention to the fact that they might regard different parts of the evidence contained in the record of interview as having a different weight and in particular that they might regard exculpatory statements as falling into a different category from those containing admissions. Nevertheless the charge made clear that it was for the jury to consider the possibilities not only that not everything in the interview was true but also on the other hand that it "may be true". It was proper to charge the jury in terms of the reasonable possibilities having regard to the onus of proof borne by the Crown. The judge had already directed the jury as to such onus and as to the significance of possibilities in the drawing of inferences.

22 It was next submitted that the judge should not have told the jury that the answers given in the applicant's police interview were not given on oath. It was said this violated the intent of s.399(3) of the Crimes Act 1958. In my view it is clear that the terms of s.399(3) were not breached. No comment was made upon the failure of the applicant to give sworn evidence.

23 It was open to the trial judge to identify the character of the evidence comprised in the record of interview as he did. The relevant principles are stated in the authorities approved in the joint judgment of the Court of Appeal in R. v. Su[9] and were summarised by the Court of Appeal in England in the case of R. v. Donaldson[10]:

"In our view there is a clear distinction to be made between statements of admission made by the Crown as part of the case against the defendant and statements entirely of a self serving nature and sought to be relied upon by a defendant. When the Crown adduces a statement relied upon as an admission, it is for the jury to consider the whole statement, including any passages which contain qualifications or explanations favourable to the defendant that bear upon the passages relied upon by the prosecution as an admission, and it is for the jury to decide whether the statement, viewed as a whole, constitutes an admission. To this extent the statement may be said to be evidence of the facts stated therein. If the jury find that it is an admission they may rely upon it as proof of the facts admitted. If the defendant elects not to give evidence, then insofar as the statement contains qualifications or explanations favourable to the defendant the jury in deciding what, if any, weight to give to that part of the statement, should take into account that it was not made on oath and has not been tested by cross examination."

Longman warning

24 This is a case in which the offences allegedly occurred between 25 and 19 years before complaint was first made to the police and in turn such complaints were put to the applicant. The events in issue commenced when D was only 6 years old and there is no evidence of the offences other than from D. In addition the surrounding circumstances referred to in the evidence of D were relied upon as enhancing its credibility by the Crown. There is no doubt a Longman warning was required nor indeed that the learned trial judge sought to give such a warning and dwelt on the conseqences of delay at some length in his charge.

25 The judge first went to the issue of delay shortly after commencing his charge, telling the jury that he intended to give them a warning and differentiating such warning from a comment. He then stated that it would be dangerous to proceed to judgment without a careful and cautious analysis of the evidence in a case such as the present because of the danger of error. He explained that he was talking about a process of reasoning and adopted the simile of an experienced driver warning an inexperienced driver to be careful in bad driving conditions. He concluded his initial warning in the following terms:

"In a case like this it is for you to form your own views of what D said, but because of the delay and because of factors that have come with the passage of time, the difficulties that counsel has talked about, difficulties you can imagine yourself in terms of recollections and things like this, and I will come back to it and deal with it in more detail in a moment, and the fact that D is not supported by any other evidence, there is no other eye witness to these events, well then there is a need and the judicial warning is as an experienced trial judge saying to other trial judges which you are, in a case like this you should proceed carefully and cautiously before you make a decision one way or the other. That is all that the warning will be about, and I will come back to it and explain it more carefully."

26 In my view this initial warning was not sufficient to meet the requirements envisaged in the joint judgment of Brennan, Dawson and Toohey, J.J. in Longman:

"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them ... That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 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 ... 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 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising 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."[11] (Emphasis added)

27 Although I accept that the trial judge is best placed to formulate a warning appropriate to the circumstances of a trial and that what is appropriate will necessarily vary from case to case[12], nevertheless the initial warning given by his Honour suffered from a number of interrelated problems which in my view rendered it inadequate.

(a) It did not instruct the jury that because of the great delay in this case the applicant could not adequately test the evidence against him. This is the starting point of the warning required by the joint judgement in Longman.

As Gaudron, Gummow and Callinan, J.J. stated in Crampton v. R.[13]:

"The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions."

(b) The direction amounted in substance to a warning to proceed carefully. It went to pains to emphasise no comment was being made about the evidence, when what was required was a warning concerning the character of the evidence. As Winneke, P. and Ormiston, J.A. said in R. v. Glennon (No. 2)[14]:

"What should be clearly understood, however, is that a charge confined in these circumstances to a direction to scrutinise the evidence with great care is simply insufficient. It is, as has already been said, merely in those terms a repetition of the jury's obligation in any criminal trial having regard to the need for the Crown to prove the case beyond reasonable doubt. What is significant in Longman, in Crampton and in each of the other cases where the principle has been applied, is that that the very careful scrutiny directed by the trial judge is to be made subject to two essential qualifying circumstances. It is in the first place a negative condition which must be satisfied if the warned danger is to be overcome, but the condition also requires that the scrutiny be conducted not merely with great care but 'considering the circumstances relevant to its evaluation' ... It would follow that unless the judge gave a warning of the relevant danger, any direction to scrutinise the evidence, in the absence of the warning to which heed must be paid, would be insufficient."

(c) The direction did not adequately emphasise that it would be dangerous to convict because of the forensic disadvantage facing the applicant. As Winneke, A.C.J. said in R. v. W.E.B.[15]:

"In truth, this was not a warning which carried with it the impact which was required. There is a discrete difference, as it seems to me, between giving directions of the type which his Honour gave and warning a jury that, because of the identified difficulties which have left the accused at a disadvantage, it would be dangerous to convict on the complainant's evidence alone; unless -- having scrutinised the evidence with great care, considering the matters relevant to its evaluation, and paying heed to the warning -- the jury is convinced of its truth and accuracy. ... This type of direction is calculated to bring to the forefront of the jury's mind the primacy of the warning that it would be dangerous to convict the accused on the unsupported evidence of the complainant in the circumstances of the individual case. It is the unusual circumstances which have put the accused at a disadvantage in the trial -- and not the scrutiny of the complainant's evidence -- which compel the warning of the dangers of convicting on unsupported evidence."

(d) The direction reduced the warning to a matter of common sense practicality expressed by "an experienced trial judge to other trial judges" and essentially similar to that which might be given by an experienced driver to an inexperienced driver. The direction thereby incidentally diminished the judicial authority with which the relevant forensic difficulty and danger of wrongful conviction must be expressed. Again, as Winneke, A.C.J. said in R. v. W.E.B.[16]:

"Where a warning is required, as it undoubtedly was in this case, it must be given in an 'unmistakable and firm voice' - a warning which carries the judge's imprimatur that it would be 'dangerous to convict the accused on the unsupported evidence of this complainant, unless etc.' It is 'that red flag which must remain aloft', as Ormiston, J.A. and I said in R. v. M.C.G.[17], unless and until the jury is satisfied of guilt after it has thoroughly scrutinised the evidence, considered the circumstances and paid heed to the warning. That case involved a direction, much like this one, which subjugated the real purpose of the warning to the need to 'scrutinise carefully the evidence of the complainant'. As the joint judgment stated:[18]

'Again it would appear to put the cart before the horse. The real need for the warning is the long delay and its effect upon the conduct of the accused's defence, in which case the absence (or possible absence, since it is a matter for the jury) of supporting evidence will make the giving of a Longman warning almost invariably necessary.'

And, at [91] of the judgment in that case, we went on to point out that a charge which essentially invites the jury to scrutinise the complainant's evidence with great care, as this one did, is simply insufficient:

'It is ... merely in those terms a repetition of the jury's obligation in any criminal trial having regard to the need for the Crown to prove the case beyond reasonable doubt'."

28 Having given this initial warning the judge returned to the question of delay after full and careful directions concerning other aspects of the law including the onus and standard of proof. He then directed the jury that one of the matters they had to take into account was that the applicant "might well be prejudiced by the passage of time." The judge directed the jury that had the allegations been made close to the events in issue evidence might be expected to have been available as to surrounding circumstances such as the taking of D's sister to Orbost Hospital at about the time of two alleged incidents and as to the results of forensic examination of D which could have been undertaken with respect to the physical consequences described by D in evidence if complaint had been made sufficiently soon after the alleged incest.

29 The judge next went on to deal with matters in the following terms:

"KJ cannot call that evidence if it was available and neither can the Crown for that matter. You have to bear in mind that some of these matters that may or may not have been other evidence to be called to set a more complete picture of the evidence before you, but in that regard it cannot be done because of the passage of time. You cannot of course m ake a speculative guess as to what evidence, if any was available, you have to say to yourself that in this case there may be aspects that might have assisted KJ in presenting a case to you or indeed enhancing the Crown case. The evidentiary equation is not complete but you have to decide this case on what evidence is available and bear in mind that as I say, there might be some further aspects of evidence that could have been called but they are not there. There might not have been of course, there might not have been any other aspect of evidence but you cannot guess one way or the other, other than to say we might not be looking at the total picture."

30 In my view this passage continued the deficiencies I have identified. In particular it treated the question of delay as bearing on the force of the evidence as a whole both from the defence and the Crown point of view. It did not properly warn the jury as to the danger inherent in the forensic disadvantage necessarily suffered by the accused in meeting the charges against him.

31 After then referring in further general terms to the evidentiary difficulties that might be expected to result from a delay of some 20 years, his Honour stated that in cases such as that before the jury "you have a reason for caution".

32 He then returned to the warning he had previously given:

"I will come back to the warning I have given you and I do not want to as I say, over emphasise the warning in a way that you misunderstand it, I want you to be precise and understand what the warning is about. The commonsense rule is that because of potential for error, judges are obliged to give juries a warning that it is dangerous for a jury trying a case that has no supporting evidence, it is the word of the witness who makes the accusation that is not supported by any other evidence and there has been a passage of time that will lapse because it's put in [addition] to the difficulty of people having an exact recollection of these events, some of the evidence might have disappeared. For those sorts of reasons, the law says that it is dangerous for a jury trying such a case to convict the accused where the evidence depends upon the unsupported version of an accuser. That does not mean you cannot convict in the absence of other evidence that corroborates or supports the witness' version. It merely means that you should only do so after you have subjected that evidence to the most thorough and careful examination. Only after that examination and you are satisfied beyond reasonable doubt of the guilt of the accused."

33 In my view this passage did not adequately cure the defects contained in the initial warning. It did warn the jury that "the law says it is dangerous for a jury trying such a case to convict the accused where the evidence depends upon the unsupported version of an accuser." Nevertheless it grounded this warning in the "potential for error". It did not clearly and unmistakably instruct the jury that the applicant (to adopt the words of the joint judgment in Crampton) "was by reason of the very great delay, unable adequately to test and meet the evidence of the complainants."

34 Further, the direction that the warning "merely means that you should only [convict] after you have subjected that evidence to the most thorough and careful examination"[19] was inappropriate. It tended to reinforce the initial direction to the jury that what was required in essence was simply to proceed carefully.

35 This conclusion is fortified by the further direction of the judge which concluded the warning:

"If after examining the evidence beyond reasonable doubt of the guilt of the accused in accordance with the warnings I have given you, you are satisfied of the guilt of the accused it would nevertheless be open to you to convict him of these offences. What I am saying to you, the point of the warning is it is about a process of reasoning of how you consider the evidence, it is not a comment upon the evidence as such. It is a trial judge saying to 12 other trial judges, in cases like this, there is a potential for danger and the way an experienced trial judge would look at the evidence is carefully, cautiously and thoroughly. If after carefully, cautiously and thoroughly examining the evidence of the witness such as D, you are convinced beyond reasonable doubt of the guilt of the accused will mean [that] it is open for you to convict the accused of counts. If you are not satisfied, the verdict should be one of not guilty. It is like, as I said earlier, the experienced driver saying to an inexperienced driver on Tuesday morning when it is raining 'be careful don't speed when you're going past Malmsbury there are roadworks there it's been raining, that road can be dangerous at times.' You are not telling the inexperienced driver that he can't proceed through Malmsbury on the way to Melbourne, you are saying to him an experienced driver in those circumstances would be careful, cautious and thoroughly consider the circumstances of the road before driving through."

36 This final direction was in essence to the effect that the warning was concerned with a process which should be adopted because of a potential for danger. The reiteration of the statement that the judge was not making a comment about the evidence and the reiteration of the careful driver illustration returned the jury to the terms of the first direction given.

37 There is a potential danger in extended and discursive Longman warnings.[20] As Winneke, A.C.J. said in W.E.B.[21]:

"... if, in the interests of fairness of the trial, a Longman type warning is called for, as the judge (in my view correctly) thought was the case here, that warning should be delivered in terms which are clear and concise, and achieve the impact which is required. Judge Kelly's handbook of "Directions" gives examples of the nature of the warning which is required in circumstances similar to those which arose in this case."

38 In my view the final passage of the warning which I have quoted above was attended by each of the defects to be found in the initial direction.

(a) It did not identify the forensic prejudice necessarily confronting the applicant;

(b) It amounted to a direction to proceed carefully;

(c) It did not adequately emphasise that it would be dangerous to convict in the circumstances of this case and reduced this necessary emphasis to a background consideration of "potential for danger";

(d) It reduced the warning to a matter of common sense practicality and materially diminished the judicial authority with which the relevant forensic difficulties and danger of wrongful conviction must be expressed.

39 Accordingly, the application for leave to appeal against convictions should be granted, the convictions be set aside and a retrial be ordered.

[1] Crampton (2000) 206 CLR 161 at 208 [129], per Kirby j

[2] See Jago v. District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R. 23

[3] Crampton (2000) 206 CLR 161 at 180 [39], per Gaudron, Gummow and Callinan JJ; MCG [2001] VSCA 17 at [91], per Winneke P and Ormiston JA

[4] Crampton (2000) 206 CLR 161 at 181 [45], per Gaudron, Gummow and Callinan JJ and at 209 [132], per Kirby J

[5] Longman [1989] HCA 60; (1989) 168 CLR 79 at 91, per Brennan, Dawson, Toohey JJ

[6] Longman [1989] HCA 60; (1989) 168 CLR 79 at 91, per Brennan, Dawson, Toohey JJ; See, also, Crampton (2000) 206 CLR 161 at 179 [39] - [42], per Gaudron, Gummow and Callinan JJ and at 208 [126], per Kirby J; WEB [2003] VSCA 205; (2003) 7 V.R. 200 at 215, per Winneke A.C.J.

[7] (2003) 8 V.R. 154 at 166 [46], per Coldrey A.J.A.

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

[9] [1997] 1 V.R. 1 at 64

[10] (1976) 64 Crim.App.Rep. 59 at 65

[11] Above at 91

[12] See eg. R. v. E.O. [2004] VSCA 41; (2004) 8 V.R. 154 at 157 per Winneke, P., see also Coldrey, A.J.A. at 166 [46] and 168 [54], Buchanan, J.A. agreed with the reasons of Winneke, P. and Coldrey, A.J.A.

[13] (2000) 206 C.L.R. 161 at 181 [45]

[14] [2001] VSCA 17; (2001) 7 V.R. 631 at 670 [91]

[15] [2003] VSCA 205; (2003) 7 V.R. 200 at 214-215

[16] Above at 215-216

[17] [2001] V.S.C.A. 17 at [87] [87]

[18] Above at [88]

[19] My emphasis

[20] Compare the analysis of Winneke, P. and Ormiston J.A. in R. v. Glennon (No. 2) at [87]-[89].

[21] Above at 215 [49]