R v MM

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0437 FILE NUMBER(S) : LOWER COURT Black DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60203 of 2003

LEVINE J HOWIE J SMART AJ

Wednesday 31 March 2004 REGINA v MM Judgment 1 LEVINE J: The appellant has been afforded anonymity in this judgment by reason of orders made by his Honour the trial judge on 21 August 2002 purportedly in pursuance of ss118 and 119 of the Criminal Procedure Act 1986 as it was then in force (now see ss291 and 292 Criminal Procedure Act). Upon a reading of the transcript of the proceedings before his Honour at the time those orders were made, it is clear that both the complainant and the accused desired the benefit of such anonymity as was afforded by the orders his Honour purported to make. It must not be taken, however, that in every case an accused person or an appellant will necessarily be afforded anonymity consequent upon the making of a lawful order that protects the identity of a complainant in a case such as this. Further, it is incumbent upon the appellant or the Crown when an appeal is called, immediately to inform the Court of Criminal Appeal of any orders that have been made in relation to anonymity, hearing in camera and the like. 2 The appellant, who was tried by jury before his Honour Judge Black QC in the District Court from 21 August 2002 to 3 September 2002, appeals against conviction and seeks leave to appeal against sentence. 3 The indictment contained nine counts. Counts 1, 2, 3, 5 and 6 were each offences of indecent assault upon a male person committed between 1 January 1982 and 31 December 1982 (s81 Crimes Act 1900; maximum sentence: imprisonment for 5 years). Count 4 was an offence of buggery committed between 1 January 1982 and 31 December 1982 (s79 Crimes Act 1900; maximum sentence: imprisonment for 14 years). Counts 7 and 9 were each offences of indecent assault upon a male committed between 1 January 1983 and 1 January 1984 (s81). Count 8 was an offence of buggery committed between 1 January 1983 and 1 January 1984 (s79). 4 On 3 September 2002 the jury found the appellant guilty on counts 1, 2, 3, 4, 5, 7, 8 and 9. The appellant was acquitted on count 6.

The conviction appeal 5 Six grounds of appeal have been notified. 6 Ground 1 is that the learned trial judge erred by failing to adequately warn the jury about the difficulties occasioned to the appellant by the lengthy delay in complaint.

Ground 2: His Honour erred by failing to adequately warn the jury about the use the jury could make of the lengthy delay in complaint in assessing the complainant's credibility.

Ground 3: The trial miscarried because the Crown Prosecutor addressed the jury in a manner that undermined the effect of the directions his Honour gave concerning the need to scrutinise the complainant's evidence with great care and the problems caused by the very lengthy delay in complaint.

Ground 4: The trial miscarried because the Crown failed to call DD, CM and SM1. This ground of appeal was abandoned.

Ground 5: His Honour failed to warn the jury that the prosecution witnesses HH and SP may have been unreliable because their recollections of events may have been adversely affected by the passage of time.

Ground 6: The verdicts of the jury should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence.

Outline of facts 7 The appellant was a teacher at the school from 1 June 1981 until the end of the school year in 1982. From early in 1983 until 1986 the appellant lived and worked in Victoria. The complainant was a pupil at the school from Year 6 until he left at the end of Year 10 at the end of 1983. He was born on 7 April 1967 and thus was aged between 14 and 16 years at the time of the offences. The appellant was the complainant's tutor master for one period in 1982 and was also in charge of the school naval cadets. 8 The complainant first spoke to the police about the allegations in January 1999. From 3 February to 20 April 1999 a "comprehensive statement" was taken from the complainant by the police. The appellant was charged on 16 September 1999.

Ground 1: His Honour erred by failing to adequately warn the jury about the difficulties occasioned to the appellant by the lengthy delay in complaint 9 At the outset it is to be observed that no steps were taken by trial counsel to have his Honour cure what, on appeal, were submitted to be defects going to the heart of the matter in the learned trial judge's summing-up. Thus this case is one more in what it seems to me to be a continuing series of appeals founded upon an asserted inadequacy of "Longman directions" in the context of silence by the appellant's legal representatives at the conclusion of the summing-up. Be that as it may, if it is a "heart of the matter" point, leave should be granted under Rule 4. 10 Relevant parts of his Honour's summing-up are as follows: "It is very important, however, that whether there was no complaint or whether there was a complaint, it is very important that you realise that it was not until 1999 that the accused was aware that these allegations were being made against him because the passage of time can cause, and in this particular case is said to have caused, significant difficulties to the accused in preparing and mounting his defence to these allegations and the law recognises this and it is necessary for me to give you some very specific warnings about it. Because of the lapse of time here, I am bound to warn you that it will be dangerous to convict the accused on the evidence of [the complainant] unless you, scrutinising the evidence with great care and considering the circumstances relevant to its evaluation and paying heed to that warning which I have given you, were satisfied of its truth and accuracy. The reasons for it being dangerous include the following considerations. First of all it is said that the evidence of the complainant, that is [the complainant], cannot be adequately tested after the passage of so much time and in particular, in this case, a lot of surrounding aspects cannot be fully or, in some cases, at all investigated. I shall give you some examples of those, they have been referred to in the submissions of counsel. It may be that others have occurred to you". (Emphasis added) 11 His Honour thereafter sets out seven particular aspects of the evidence illustrative of the ways in which the appellant was in fact prejudiced in the preparation for and presentation of his case in answer to that of the Crown. 12 It will be seen that the substance of the direction followed the wording of the joint judgment of Brennan, Dawson and Toohey JJ in Longman v The Queen (1989) 168 CLR 79 at 91.5. I have emphasised the phrase above as it played some special role in submissions generally on this ground. 13 It was contended that the terms of his Honour's directions in relation to problems arising from delay in complaint did not "clearly and emphatically warn the jury that the appellant could not adequately test the evidence of the complainant" after the passage of more than 17 years; there was lack of sufficient "emphasis". Submissions spoke of his Honour not delivering the warning (it clearly, on any view of the summing-up, can only be described as a warning) as is required, i.e. in an "unmistakeable and firm judicial voice". His Honour regularly referred to matters presented in argument and submissions on behalf of the appellant by his trial counsel, thus undermining, so it is submitted, the force of the undoubted warning. The appellant goes so far as to suggest that the approach taken by his Honour reduced the directions to a mere recitation of the appellant's argument. At this point, in my view, a fair reading of his Honour's summing-up cannot simply be so characterised. 14 A further complaint is made in terms of the impact of the address of counsel for the Crown (the subject of ground 3). To that I will return. Shortly stated, such was the Crown's approach in his address that there was the greater reason, it was submitted, for the learned trial judge to give his own judicial imprimatur to the warnings that are now clearly required by reason of the decisions of the High Court in Longman (supra); Crampton v The Queen (2000) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343. 15 It is desirable at this point to set out the matters to which his Honour referred:

(a) The absence of any evidence concerning the claim by the complainant that there had been pornographic magazines, videos, photographs and a Polaroid camera: (SU 9.5)

(b) The absence of any evidence concerning the claim by the complainant that he had gone with the appellant to play squash: (SU 10.3)

(c) The absence of any evidence concerning the claim by the complainant that telephone calls were made by the appellant to the home of the complainant and some by the complainant to the flat of the appellant: (SU 10.6)

(d) The absence of records and/or other evidence concerning whether the appellant owned or had access to a particular blue Datsun motor car at times pertinent to the counts: (SU 11.7)

(e) The inability (by either party) to obtain a copy of a 1982 Year Book for the school to demonstrate whether the appellant might have obtained from that source the telephone number of the complainant: (SU 12.8)

(f) The inability of the appellant to raise alibi given the delay and imprecision of the dates of the offences: (SU 13.4)

(g) The absence of any record of the layout of buildings at Kangaroo Valley, particularly since the one relevant to the proceedings (the "farm cottage") was said to have been destroyed by fire prior to the time of the relevant offence: (SU 14.1) 16 As mentioned above, his Honour gave examples of the way in which, in fact, the appellant had been prejudiced in the preparation of his trial. It is true that in so doing his Honour did make reference to what the defence "said" or what the defence "complained" about and used similar phraseology in that part of his summing-up. 17 What was argued is that his Honour did not give "content" to so much of the warning as is encapsulated by the emphasised phrase above ("the circumstances relevant to its evaluation"). Failure to give content also represented, so it was submitted, a failure on the part of the learned trial judge to explain why it was dangerous to convict as is referred to by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362 at 371C. Complaint was made to this Court that dealing with only some of the reasons was insufficient. 18 The next complaint in relation to the first ground related to that part of the summing-up where his Honour (SU-15) quotes from the judgment of McHugh J in Longman, and informs the jury that he is quoting a judge of the High Court of Australia. What his Honour said was: "The other aspect or other broad reason for giving you that warning relates to the fallibility of human recollection and, in that context, the best thing to do, in my judgment, is to read out something that was said by a judge of the High Court in Australia in respect of this. "The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to remember is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to remember may also arise from talking or reading about [or] experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood … is particularly susceptible to error and is also subject to the possibility that it may not even be genuine"". 19 That extract is taken from the judgment of McHugh J at 107-108 of Longman. The appellant acknowledges that his Honour fairly and correctly alerted the jury to the dangers implicit in the fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to remember. However, it was said to have been a continuing theme of the complainant's evidence that he was completely incapable of any precision as to dates or periods of time: one example is provided by the necessity to extend the terminal dates of count 6 - of which he was acquitted - and of counts 7, 8 and 9. Further, it was often the case that he could not be precise as to the activity that occurred surrounding that which was the subject of particular counts. A reading of the evidence of the complainant in chief and in cross-examination certainly confirms the availability of such a description. 20 It was submitted by reference to the Crown Prosecutor's address that the Crown Prosecutor sought to persuade the jury "against" taking an adverse view of the complainant's reliability "because" of imprecision. In his opening address to the jury the Crown Prosecutor had said: "Now that offences are charged within such a period is not uncommon in a case such as this. You might have already calculated that these offences are alleged to have occurred some nineteen, twenty years ago. Now the reason why offences of that nature are charged in this fashion is really just commonsense. Given the passage of time, it would be unrealistic to expect [the complainant] to nominate a precise date on which an event occurred. It's just commonsense. And the Crown does not have to prove, in order to discharge its burden of proof, on which particular dates these events occurred". 21 In his closing address the Crown Prosecutor had said: "But as you will observe during the course of this trial, it is a disadvantage also suffered by [the complainant]. As I told you in my opening it would be ridiculous to expect a witness to give evidence of the precise dates upon which certain identifiable acts are alleged to have occurred".

22 In this context the appellant relies upon statements of Adams J in R v MM [2001] NSWCCA 286. That was an appeal by the present appellant in relation to a different set of allegations. The appeal was heard on 4 July 2001 and judgment was handed down on 27 July 2001. I would assume that that Court of Criminal Appeal's judgment in relation to this appellant would have been in the hands of his legal advisors at the time of the trial under this appeal. Although nothing of substance really turns on the matter, it is interesting to note, notwithstanding the connection between this appellant and presumably his legal advisors in that appeal, there was again silence at the conclusion of the summing-up in relation to that part of the first Court of Criminal Appeal decision on which the appellant now seeks to rely, being paragraphs [18] - [20] and [27] and [28] of Adams J's judgment. What his Honour said on that occasion was: "[18] The appellant submitted that the learned trial judge's directions on the impact of delay were inadequate. Before dealing with the question of delay, his Honour pointed out that there was no independent support for the complainant's evidence of a sexual assault and directed the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that this evidence was both honest and reliable. His Honour then directed the jury, as to the evidence of all three principal Crown witnesses, that its reliability may have been adversely affected by the passage of time. His Honour directed the jury as follows - "[Finally], in relation to this aspect of the passage of time or delay, as you would appreciate, it can operate unfairly to an accused where there has been a delay in the authorities being notified of an allegation. As I say, the delay here is in the order of 25 years, that is, a quarter of a century. That sort of delay can operate unfairly to an accused because he or she has lost the opportunity of fully testing or challenging the complainant's account and credibility and has lost the opportunity of presenting material to a jury to rebut the allegations or raise a reasonable doubt about the complainant's veracity. In this case, you have heard about the incomplete nature of RTA records relating to the registration of motor vehicles as far back as 1972, the absence of school records and the fact that the accused says that he destroyed his own diaries for that period." [19] His Honour then went on to deal with the reasons that might suggest that the evidence of the three witnesses was unreliable, dealing with the history of communications that might have caused contamination of their recollections and the risk of unconscious confabulation.

[20] These directions concluded with the following - "As I have said, the two features that I have been discussing, the passage of time and the possibility of contamination mean that the evidence of the complainant, TF and MC may be unreliable. I warn you that it would be dangerous to accept the evidence of any of these three witnesses unless and until you have scrutinised it with the utmost care, bearing in mind the warning I am giving you and the reason for it. You would need to satisfy yourself that their evidence was both honest and reliable and you would need to satisfy yourself that you could, beyond a reasonable doubt, exclude the possibility that their evidence is the product of mistake or contamination before you accept it. Do not think, members of the jury, that I have given you this warning in order to send you some coded message about what my views are concerning the credibility of these witnesses. In all cases with features of this type that I have identified, all judges are required by an Act of Parliament to give the warning that I have given you in order to guard against miscarriages of justice and innocent people being convicted. They are not intended and you should not treat it as being an attempt by me to convey a view I might or might not have about the credibility of the witnesses."

[27] The learned trial judge's directions in this case, as set out above, certainly warned the jury about the possibility that the delay in this case operated unfairly to the accused for the reasons that he mentioned. With unfeigned respect, I consider that these directions fell significantly short of a positive warning in unqualified terms of the crucial point that the defence was in fact unable adequately to test the complainant's - or, for that matter, the other witness' - evidence, so that the disadvantage to the defence and the danger of convicting in the circumstances was not merely potential but real. This was especially important because the jury might have mistakenly thought that, because of the cross-examination that did occur, the evidence for the prosecution had been fairly and adequately tested. Moreover, it is necessary to consider the impact of delay on any positive case that the accused might wish to raise. The jury would very likely have gathered from his Honour's direction that the only respects in which the appellant had been prejudiced by delay was the loss of the car registration and school records and the appellant's diary. But, of course, the appellant had lost much more than the records in question. The circumstantial network of his working and social life, which may have confirmed the change of ownership of his car at the crucial time or accounted for his movements in the winter of 1972, would have obviously long since dissolved. The same is true of the Crown witnesses. This problem was exacerbated by the inability of the prosecution to be precise about the date and place of the offence, a difficulty made all the more significant because the defence case, essentially, was that the accused had never attended such a camp. The inability of the complainant to identify the campsite may have reflected on his reliability as a witness, an argument of which his Honour reminded the jury, although it is likely that this was explained away in the manner pressed on this Court by the Crown Prosecutor, namely, it would not be surprising if, after all these years, the site could not be found. However, this is to demonstrate the problem rather than resolve it. Part of the problem with assessing the significance of imprecision and inconsistency in cases such as this is the strong temptation to explain them away by the passing of time. Imprecision and inconsistency, which in the ordinary case, would be significant, are discounted in favour of the prosecution. The extent to which these matters may have assisted the defence or the prosecution is necessarily uncertain, but that very uncertainty gives rise to the danger about which the jury must be warned. The risk that the jury will not appreciate that the case it is hearing may well be, to a greater or lesser extent, an artefact, which has been shaped, as it were, by the corrosive effects of time, is a very real one, requiring emphatic directions. With unfeigned respect for the learned trial judge, I consider that his Honour's directions fell significantly short of the warnings required by Longman and Crampton . [28] To my mind, the reference by his Honour to the obligation to give the warning as arising by Act of Parliament was, with respect, likely to have qualified its force. It is of the essence of the extracts that I have cited above from the various judgments in the High Court of Australia that the warning must be expressed as arising from the experience of the Courts. Juries are not likely to think that Members of Parliament know very much about the evaluation of evidence in a criminal trial. It also seems to me that the concluding words of his Honour may have been taken by the jury to mean that, in the circumstances it was considering, the warning may not apply and the danger might not be present, when the opposite was the case". 23 The appellant also relies upon, as authority that facilitates the resolution in his favour of ground 1, the following statements of Howie J in R v DBG (2002) 133 A Crim R 227: "37 But significant delay does not merely affect the ability of the accused to defend himself by depriving him of the opportunity to gather evidence which might at least place a doubt upon the Crown case. It can also prejudice the accused in a more subtle way, as occurred in the present case. By reason of the delay, the complainant was necessarily vague as to the specific occasion upon which she alleged that the first act of intercourse occurred. She was also unable to supply any particularity to the history of sexual assaults that she alleged had been committed upon her except by relating them to the place where they occurred. 38 The difficulty for an accused person in rebutting that evidence is obvious, at least to the legal mind. On the other hand, a jury might readily accept that, even if the complainant were telling the truth about her allegations, she would, by reason of her young age, the delay and the number of incidents of sexual abuse alleged by her, have difficulty giving any but the barest detail of the circumstances surrounding them. Such a situation might even engender some sympathy for the complainant when those defending the accused require particularity and consistency in her evidence and criticise her when it is not forthcoming. Where such a possibility arises, it is necessary for the trial judge to bring home to the jury the consequences of delay upon the accused's ability to test the Crown's case. It may even be necessary for the trial judge to make it clear to the jury that the delay may have caused the Crown witnesses to become unreliable or in some other way have weakened the Crown case rather than to allow the jury to act on the basis that the delay might excuse or explain apparent defects in the evidence of those witnesses". 24 The appellant also seeks to have exposed the difficulties confronting his legal representative in effectively cross-examining the complainant as a consequence of the delay in complaint and by way of highlighting the incapacity in the complainant to bring any precision to his testimony with the result referred to above in relation to the changing of the dates of certain counts (R v GS [2003] NSWCCA 73 per Buddin J at [24] where his Honour referred to statements of Kirby in R v WRC [2002] NSWCCA 210 at [142] and [143]). 25 The appellant acknowledges that leave is required pursuant to Rule 4 and asserts that there could have been no possible tactical advantage for the point not to have been raised by the appellant's counsel at trial. It is a matter, it was argued, in which the trial judge should have received the assistance of both counsel - I am not quite sure what that means. It is certainly unarguable that a trial judge should receive assistance from counsel. However, the two statements relating to the absence of tactical advantage and the necessity for counsel to assist the trial judge in the context of the particular submission are irreconcilable in my respectful view. The appellant acknowledges that the failure to presumably assist the judge by taking a point brought about "an unfortunate state of affairs" but that the deficiencies, nonetheless, caused the trial to miscarry. 26 The Crown, especially in reliance upon R v BWT [2002] 54 NSWLR 241 particularly at [95] per Sully J submits that the requirements for appropriate proper direction were met by the learned trial judge. There can be no question, the Crown submits, that his Honour did in fact "clearly and emphatically warn the jury" when one reads what his Honour said in the extracted part of the summing-up and elsewhere, which could only be understood as stressing that the jury was being "warned" that it would be dangerous to convict. 27 Contrary to the submissions of the appellant the Crown argued that there was no dilution of the warning by the use of the language his Honour employed by reference to actual submissions made on the evidence in the case as to prejudice in fact having been sustained by the appellant by reason of the delay. 28 After referring to the delay between the offences and the complaint, the learned trial judge directed the jury that "…the passage of time can cause, and in this particular case is said to have caused, significant difficulties to the accused in preparing and mounting his defence to these allegations and the law recognises this and it is necessary for me to give you some very specific warnings about it…" (SU 8.6-8.8). His Honour thereafter gave reasons for it being dangerous. He referred to the specific features of the case that could not properly be investigated, being the seven matters to which reference has been made, above. 29 I am persuaded that the Crown's submissions in this regard must be, and in fact are, correct. His Honour did not dilute the warning but rather reinforced it by reference to matters which the body of evidence in the trial over which he presided in fact exposed the peril to the appellant by reason of the delay: see Wood CJ at CL in R v BWT (2002) 54 NSWLR 241 at 247-248. In such an appeal as this where the evidence disclosed in fact that delay had caused prejudice, the trial judge can, and indeed should, as his Honour did in this case, refer to those matters. His Honour, in my view, referred to more by reference to the matters of DD, the Kings Cross Hotel and the ex-girlfriend Julie, which had been the subject of submissions to the jury by defence counsel and were reiterated by the learned trial judge (SU 23-28) in circumstances where the jury would have understood that the earlier direction would have incorporated those three further illustrations. 30 As to the appellant's criticism of his Honour's summing-up relating to the "fallibility of human recollection", it is pointed out by the Crown that his Honour quoted verbatim from Longman (at 107-108 per McHugh J): see summing-up page 15. In the circumstances of this trial it was a sufficient mechanism for applying the appropriate judicial imprimatur to that aspect of the directions pertinent to the effect of delay upon the case. 31 Whilst, for myself, I would have reservations as to a trial judge saying to a jury that he is quoting from a judge of the High Court (the trial judge by reason of his/her position is in a position to give sufficient judicial imprimatur to a direction) by so doing, and the language of the extract being clear and obviously favourable to the appellant, in context and by reason of the overall structure and specific references made by him, that aspect of the summing-up cannot be impugned. 32 I have hitherto not dealt with so much of the appellant's case in relation to ground 1 that is concerned with the conduct of the Crown Prosecutor. That is more specifically dealt with under ground 3. However I can now indicate that as part of ground 1 that conduct plays and can play no part in derogation from the effectiveness of his Honour's summing-up for the purposes of ground 1 and otherwise is incapable of making ground 3, I will not further comment upon it at this stage. 33 The Crown, not surprisingly, and appropriately, distinguishes the directions with which this appellant's first appeal was concerned and, in relation to which the observations of Adams J were made. The same considerations apply, in my respectful view, to the judgment of Howie J in DBG and Buddin J in GS. In this extraordinarily fragile area of the law great attention must be payed to the particular case in hand and statements made by appellate judges in relation to one "Longman appeal" might be indisputably correct in the context of that appeal, but need not necessarily constitute authority for the disposition of another appeal. 34 The Crown also referred to the observations of the Court of Criminal Appeal in R v Ita [2003] NSCCA 174 at 92-98 per Ipp JA in relation to Rule 4. 35 In this appeal we have nothing, of course, other than the statement from one side, namely the appellant, that there could have been no conceivable tactical reason for experienced trial counsel's silence at the end of the summing-up on the relevant issues, and on the other, the submission for the Crown that trial counsel did form the view that the incorporation into the warning of reference to the defence submissions was advantageous to the appellant, otherwise no doubt directions would have sought. All of this is really unhelpful. 36 It would be regrettable to the administration of criminal justice if there was evolving some "forensic culture" in sexual offence trials in which Longman directions are concerned, for there to evolve a practice of silence on the part of counsel at the conclusion of the summing-up on the basis that Rule 4 would never be applied because any post-trial asserted deficiency in Longman directions would go to the heart of the matter, and if made out would amount to a miscarriage of justice. 37 In relation to ground 1, whilst I would reluctantly grant leave, I am of the view that no case has been made out in support of it, that there has been no miscarriage and that the ground fails.

Ground 2: His Honour erred by failing to adequately warn the jury about the use the jury could make of the lengthy delay in complaint in assessing the complainant's credibility 38 The appellant's position, in my view, is even more weak in relation to ground 2. On the appellant's own admission it is clear that a significant delay was said to be apparent and in relation to ground 1 it was dealt with satisfactorily by the trial judge. The appellant refers to his Honour saying to the jury in relation to the girlfriend "Julie", "It may be that you think that it is better to take the view that there is no real evidence of any complaint having been made to anybody at all in this case" (SU 7) - apart, of course, than made in 1999 to the police. This was a very favourable "observation" on the part of the trial judge to the jury from the point of view of the appellant. What his Honour said was: "It may be that you think it is better to take the view that there is no real evidence here of any complaint having been made to anybody at all in this case. On the other hand you may think he said something to this girl and that may well have been a complaint and you would say all right, in 1999 sometime shortly before the police came [sic] involved he raised it with a girl that he was associated with. The position either way is either there was not a complaint or if there was it was in 1999 and we are dealing here with matters alleged to have occurred in 1982 and 1983 and possibly the beginning 1984. It is said, very broadly, on behalf of the accused, that given that it is quite inconsistent with somebody who actually has had offences of that nature alleged here or any such offence committed against them. What I have to tell you first of all about the absence or significant delay in making a complaint is this. It is a matter which, of course, you consider. But I have to warn you, that the mere absence of a complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of the complainant but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted does not complain to anyone. In relation to the good reasons, you heard some evidence from SM2 that at the time when he was at the school he was not going to raise what was happening because he did not want anybody to know. You may think there is not much evidence before you as to the succeeding years except his evidence, "I tried to blot it out, put it behind me and just, as it were, obliterate it". So there is the explanation, it is a matter for you to take into account when you way [sic] up the weight and credibility to attach to his evidence. It is a criticism which is appropriate to make but where it gets the maker of the point is up to you". 39 It is also to be noted that his Honour gave the following direction (SU 16) in relation to the separate counts: "Just be you reach one conclusion on one count, you do not say, well that is it, that applies to all of them. Each one relates to a separate allegation and you have to consider the evidence in relation to each one separately save in this respect: - as each count depends entirely upon what you make of [the complainant], if you were doubtful about his reliability in relation to one count, then you must take that into account when you are considering the other counts. So doubtfulness about his reliability is relevant to considering the other counts. The converse is not so".

Compare R v Markuleski (2001) 52 NSWLR 82; see also MFA v The Queen (2002) 193 ALR 184, [2002] HCA 53. 40 The appellant's submissions in relation to this ground are, in my view, rhetorical, for example, where for him it is said that the trial judge by reason of the use of the phrase "where it gets the maker of the point is up to you" must necessarily have been regarded by the jury as almost dismissive of the appellant's argument. The appellant repeats the obligation upon the trial judge to give a meaningful direction very carefully to consider the issue of credibility. 41 I am satisfied from the particular extracts above, and from the overall summing-up in the context of the trial over which his Honour was presiding, that his Honour's directions were sufficient in this regard. In effect, his Honour commenced the relevant part with a favourable direction to the jury so far as the appellant is concerned in terms of the reference to the girlfriend. Otherwise, the directions were sufficient to alert the jury to the competing considerations concerning the absence of any complaint until 1999. His Honour highlighted the effect on the credibility of the complainant occasioned by matters referred to above and particularly the second extract to which I have referred. There was neither any "passing reference" nor any "dismissive" component of his Honour's summing-up. 42 In relation to this ground I would refuse leave. On the other hand, if leave was granted, there would be no basis for a finding that there had been any miscarriage.

Ground 3: The trial miscarried because the Crown Prosecutor addressed the jury in a manner that undermined the effect of the directions his Honour gave concerning the need to scrutinise the complainant's evidence with great care and the problems caused by the very lengthy delay in complaint 43 Regrettably, in my view, the written submissions for the appellant, of which appeal counsel was not the author, are rhetorical and tendentious. It is of no assistance to this Court to refer to "the Prosecutor having made an emotional pitch to irrelevant and generalised policy considerations". 44 What the learned Crown Prosecutor said in his closing address to the jury was: "Perhaps over the past 20 years we've come to understand amongst other things how important an uncorrupted youth is to our ability to live as healthy adults. But this trial is an example of how enlightened a community we have become. As a community we have confronted the reality of the exploitation of children by those in positions of trust, and we no longer hide from that reality. It is no longer acceptable to take the view that because the abuse took place many years ago that it's not worth pursuing, or that it didn't happen at all. We've come to recognise that the sexual exploitation of children occurs in cities and towns. It occurs in the most respectable quarters of our community. It occurs in places we would expect a child would be safe. Our churches, family homes and our schools. Sometimes the offending continues for quite some time. People around the place don't see what they don't expect to see. But more often than not in cases such as this there are no witnesses, because sexual offences, by their very nature, invariably occur in private, away from prying eyes. Mr Hanley said it himself, in his opening, when he said this. "And these are the sorts of cases whether they be committed last week or 20 years ago usually there are no other witnesses". And that's true". 45 In the overall context of this trial it can be understood, in my view, that what the learned Crown Prosecutor was doing was referring to remarks made by defence counsel in his opening to the jury. It is desirable to add some context. What the Crown Prosecutor said was part of a series of remarks (T 29/8/02 552.5 and following) that referred back to the observation by defence counsel in his opening address to the jury. What had been said was: "Reference has been made by the learned Crown to the fact that these matters are very old, 19 or 20 years ago. In many respects we are stepping back in time, not only in relation to the events that occurred, but to the law that existed then. You have heard the term buggery used. They referred to them as an abominable crime of buggery you might think that represented the sort of morality that existed then even in relation to this offence. It is not referred to in that term any more. So looking back the time [sic] as events that occurred, but looking back in time in relation at the law that was applied then and that has a number of effects and I would ask you to keep that in the forefront of your mind when you are considering the evidence, because you have to asses this evidence to that degree of your being satisfied beyond reasonable doubt". 46 The Crown Prosecutor told the jury that he was not seeking to inflame their emotions but rather he reminded them that they are duty bound to act impartially upon the evidence (T 29/8/02 553.4 and following). The Crown submitted that the remarks of the Crown Prosecutor were not inappropriate. 47 I disagree. As the learned Crown who appeared on the appeal (not being the Prosecutor at trial) remarked, he had not seen a transcription of any such observations by a Crown Prosecutor before. They are unfortunate, unnecessary and uncalled for. Whilst the jury is, amongst other things, there to reflect current community standards, it also brings to bear its collective commonsense. I do not agree with the proposition that anything the Crown said was inflammatory, but merely repeat my observation that it was unnecessary. 48 This is not a case of seeking a direction from the judge by reason of something the judge had done or failed to do, but by reason of seeking to have his Honour correct what is asserted to have been the impropriety of the conduct of the Crown Prosecutor. 49 It may well be, of course, but we are not in a position to know, that an experienced trial judge such as the present trial judge, if concerned about this aspect, might have taken the view that a forensic stance by one counsel had successfully been dealt with and appropriately dealt with by the forensic stance of opposing counsel, and there the matter should be allowed to rest. 50 Otherwise, whilst reiterating my view that the remarks of the Crown Prosecutor were unfortunate, even if there may be some basis for saying they were provoked by an opening remark some days before by defence counsel, it is apparent that sight was lost of the limitations upon defence counsel's opening address: see s159 Criminal Procedure Act. Further, as Howie J remarks in his separate judgment with which I agree, the Crown Prosecutor's closing address where he purports to deal with anticipated directions of law, constituted a serious transgression and one which could have derogated from the authority of the learned trial judge in charging the jury on those very matters of law. None of these regrettable incidents in my view constitute a miscarriage. The ground, in my view, is without merit and leave should be refused. 51 Ground 4 has been abandoned. If there is any question about that I would simply remark that I am persuaded by nothing in the written submissions for the appellant in support of them and would adopt what the Crown said in opposition.

Ground 5: His Honour failed to warn the jury that the prosecution witnesses HH and SP may have been unreliable because their recollections of events may have been adversely affected by the passage of time 52 The witnesses were former students of the school. His Honour gave no express and specific warnings about the fallibility of their individual memories. Both of the witnesses gave evidence which departed from their original statements taken in 1999. In SP's case he was able to remember that the complainant had shared a tent with the appellant one night at a camp at the Kangaroo Valley campsite. This, it is argued for the appellant, was despite the fact that he had never previously mentioned that. 53 HH added what is said to have been a significant new feature to his evidence at the trial. He claimed that he had seen the appellant in a motor vehicle with another man, M, both of whom picked up the complainant and took him away some time in 1982. In 1999 HH in his statement said that M was driving that vehicle when the complainant was picked up but made no mention at all of the appellant being in the vehicle. 54 As stated above, the trial judge gave a warning to the jury concerning the fallibility of human memory. It was incorporated in the "Longman" direction, however, as the Crown submits, on my reading of the summing-up it did not limit the ambit of the use of the direction to particular witnesses. 55 The jury had been in a position and understood that direction to be applicable to all witnesses who gave evidence in the trial especially those such as the two fellow students whose evidence concerned events said to have taken place in 1982-3. 56 No application was made for a direction in relation to the witnesses generally or under to s165 of the Evidence Act. As the Crown submits, it would appear that there was a sound tactical reason for not making any such application: the appellant relied upon the evidence and its deficiencies seriously to undermine the credibility of the complainant. 57 The contrast between the account given by the complainant of the SP episode, particularly concerning skinny-dipping on the third trip to Kangaroo Valley, his statement on the one hand and the evidence that he gave and SP's evidence on the other, provided a significant divergence in the complainant's accounts that created a basis for potentially significant damage being occasioned to the credibility of the complainant. Defence counsel relied upon it in his address to the jury for that purpose. 58 As to HH, the complainant had given evidence that the appellant would often take him to the appellant's apartment after school. Often this occurred by the appellant picking up the complainant in his car around the corner from the school. Defence counsel relied upon this in his address, relying upon the evidence of HH to undermine the credibility of the complainant generally concerning circumstances being clandestine by the observation made by the witness of the complainant being in a car with the appellant and another person. On that occasion the complainant called attention to himself in the car and actually offered HH a lift. 59 I am persuaded that the appellant's counsel at trial clearly took very significant advantage of these features of the evidence of these two witnesses vis-à-vis the complainant. No warning under s165 would have had any utility for the appellant apart possibly from resulting in the jury devaluing the evidence that was relied upon to undermine the credibility of the complainant. 60 I would refuse leave under Rule 4; if the position was otherwise, no miscarriage occurred by reason of this purported defect in the trial or the summing-up.

Ground 6: The verdicts of the jury should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence 61 The "preceding grounds" which the appellant refers to as "not the only reasons why the verdicts were unsafe" have been dealt with. 62 The jury acquitted the appellant on count 6 which alleged that he had indecently assaulted the complainant on the second of three trips that the appellant had allegedly taken with the complainant to the Kangaroo Valley campsite. In his evidence the complainant contended that he attended the campsite with the appellant's sister and her two children, one male and one female. 63 The appellant has two sisters, both of whom gave evidence. Each denied having attended any camp with the complainant at Kangaroo Valley. KM has one son, J, born in 1982; her son was not one of the children described by the complainant as having attended the camp. 64 MLM, the other sister of the appellant, has a son who was aged 81/2 in 1982. It thus seems unlikely that that child was one of the children described by the complainant as having attended the camp. 65 It is contended that the jury obviously had a reasonable doubt about the circumstances of count 6. The nature and quality of the complainant's evidence concerning the incident the subject of the count, it was submitted, was not demonstrably different from the evidence concerning the nature and quality of the acts constituting the other counts in the indictment of which he was found guilty. Therefore it is likely that the evidence of the appellant and his sisters was such as caused the jury to doubt the complainant's evidence about the second trip to Kangaroo Valley. 66 The third component of the appellant's submissions on ground 6 was made up of approximately five features of the complainant's evidence said to be "unsatisfactory" and in circumstances where the credibility of the complainant was markedly affected by a successful cross-examination. To these I will return. 67 In relation to the substantial component of this ground, the acquittal on count 6, the Crown submits that the evidence given by the complainant concerning all the counts except count 6 was characterised by detail and precision. The only matter of any real imprecision common to all counts was the precise timing of the commission of the various offences. In contrast to the evidence given on the other counts, the evidence of the complainant concerning count 6 was marked by imprecision, uncertainty and ambiguity in relation to the acts constituting the offence itself and most of the surrounding circumstances. 68 As to those circumstances, the complainant related that this offence occurred on the second of the three camping trips to Kangaroo Valley. He said that the sister of the appellant had been present with her two children, a boy of about three years of age and a girl, somewhat older. The evidence given by the complainant concerning the appellant's sister was later controverted in the appellant's case by the appellant's evidence and that of both of his sisters. 69 The Crown submits that the nature and quality of the evidence given by the complainant on count 6 differed significantly to the evidence in the other counts. 70 The evidence of the complainant in relation to count 6, upon reading the transcript, can be characterised as having been punctuated by a series of patent memory lapses or partial memory lapses which he acknowledged in giving his evidence in chief. The evidence had about it the "spectre" that the complainant was relating the particular sexual activity based upon a reconstruction from his recollection of the manner in which such activities had "usually started", rather than a recollection of the specific incident founding the count. That impression was further enhanced by reference to a variety of matters arising in cross-examination on count 6 including the dichotomy in the evidence in relation to the presence on the second camping trip of the sister of the appellant and her two "children", the boy aged about two or three years old and the daughter a couple of years older. As stated above, the appellant's sisters both gave evidence: neither had been on the second camping trip with the complainant, neither had a daughter. KM had a son born in January 1982: he was aged 1 year or thereabouts at the time of the second camping trip. MLM had a son aged about 81/2 years at that time. Thus, the crown submits, the nature and quality of the evidence given by the complainant in relation to count 6 was therefore substantially different, and would have been noticeably so to that which he gave in relation to the other counts. 71 I agree with this analysis. Additionally, of course, the learned trial judge directed the jury that they were to give separate consideration to the evidence available on each count and to the status of any doubt they might have on the reliability of the complainant on any one count vis-à-vis any other count as is referred to in the extract above. His Honour, however, did add that "the converse is not so". 72 I am of the view that it is apparent that the jury assessed the complainant on each count separately in accordance with the directions given to it. The verdict on each of the other counts disclose that the jury accepted the complainant as a reliable witness, being both truthful and accurate. The equivalent count 6 demonstrates that despite accepting the complainant as a truthful witness on other counts, the jury applied the direction to consider the evidence on each count separately, hence in view of the state of the evidence available to the Crown on count 6, a verdict of acquittal was returned. 73 Thus, by itself, it cannot be argued that there was something perverse or inconsistent in the conduct of the jury in acquitting the appellant on count 6 with the consequence the convictions on the other counts must be impugned. 74 As mentioned above, the appellant also relies upon other features of the complainant's evidence described as "unsatisfactory". These were:

(i) His original description of the Kings Cross hotel as "the Kings Cross Hotel".

(ii) His inability to be able to specify with any degree of exactitude the timing of any of these alleged offences.

(iii) His apparently mistaken evidence about the type of vehicle that the appellant was driving in 1983.

(iv) The complainant's regular resort to excusing himself for lack of particularity based on the effluxion of time.

(v) The possibility that he misled the investigating police officers about the whereabouts of a potentially important witness, DD.

75 With respect to these matters, these were but, in my view, incidents of the progress of the litigation of this prosecution and the course of the evidence therein. Each were matters that were highlighted in the course of the trial before the jury and they are features of the evidence that would have been taken into account by the jury just as they did matters pertinent to an assessment of the reliability of the complainant on count 6. 76 The credibility of the complainant certainly was central to the Crown case; there is nothing unusual about that. That credibility appears to have been assessed by the jury in circumstances of considerable advantage over those prevailing in this Court on the usual basis, namely their ability to assess the complainant in the giving of his testimony and there thus firsthand what weight the evidence was to be given in the light of all the other evidence and the directions given by the trial judge. I am persuaded that the acquittal on count 6 demonstrates that the jury did employ an appropriately critical approach to the performance of its duty consequent upon appropriate directions having been given to it by the learned trial judge. I am satisfied that there was due discrimination between the requisite assessments of truthfulness and accuracy to provide an appropriate basis for reasoned and reliable verdicts in relation to all the counts. The other features, as I have said, were but incidents and cannot be elevated higher than that. The other grounds constituting the first part of the appellant's three-pronged attack under ground 6 have not been made out and the last ground based upon these incidents and the matter of credibility of the complainant generally have not persuaded me that ground 6 has been made out. 77 Accordingly, the appeal against conviction fails.

Appeal against sentence 78 The appellant seeks leave to appeal against the sentences imposed upon him. 79 Those sentences were:

Count 1: two years fixed term from 3 September 2002.

Count 2: two years fixed term from 3 September 2003.

Count 3: two years fixed term from 3 September 2004.

Count 4: eight years imprisonment from 3 September 2002 with a non-parole period of six years also to date from 3 September 2002.

Count 5: two years fixed term from 3 September 2005.

Count 7: two years fixed term from 3 September 2006.

Count 8: eight years imprisonment from 3 September 2002 with a non-parole period of six years also to date from 3 September 2002.

Count 9: two years fixed term from 3 September 2006. 80 The first error to which the applicant points is the characterisation of the seriousness of the offending conduct. It is unquestionably the fact that his Honour made an error of fact in his remarks on sentence. He said, "The evidence covers the years 1982 and 1983. The victim, as I recollect, left school at the end of that period, as did the prisoner" (ROS p2). The complainant left the school at the end of the academic year in December 1983 but the applicant left the school at the end of the school year in 1982. 81 The effect is that counts 7, 8 and 9 were all committed after the end of the school year in December 1983. Each of the incidents which were the subject of those three counts occurred at a time when the applicant was no longer a teacher at the school. From the applicant's point of view it was important to note that the complainant had turned 16 years of age (in which context our attention has been drawn to the recent amendments to the law in relation to the age of consent for males). It is contended in relation to those counts that the offences occurred when the victim was 16, when neither the victim nor the applicant had any connection to the school, when there was no teacher/pupil relationship and in circumstances that could only be described as consensual. 82 The counts other than 7, 8 and 9 related to offences committed earlier in time when the applicant was in fact a teacher at the victim's school, the victim's tutor master and in charge of the naval cadets, and thus had aggravating features which increased the objective criminality of the incident offences. 83 It is argued for the applicant that the error of characterisation is reflected in not only what his Honour said but in what his Honour did in terms of the sentences imposed for counts 7, 8 and 9, namely fixed terms of 2 years, mirroring the sentences that were imposed in relation to counts 1, 2, 3 and 5, which also were related to charges of indecent assault. Similarly, in relation to count 8, his Honour imposed a sentence of 8 years with a non-parole period of 6 years, reflecting the 8 year sentence and the same non-parole period in relation to count 4. In short, it is argued that there was no discrimination between what I will call the "pre-end of school relationship" offences and the "post-end of school relationship" offences and taking into account the consensual nature of the latter especially. 84 There is no question that the offences giving rise to counts 1, 2, 3, 4 and 5 occurred during the "school relationship", if I might describe it as such. The Crown submits, however, that whilst it may be that the school relationship had ended at the time the offences constituting counts 7, 8 and 9 had occurred, those offences were committed during a relationship which the applicant had been able to commence with the complainant, and thereafter orchestrate, between himself and his victim. Despite the applicant working in Melbourne in 1983, he had perpetuated the relationship with the complainant, such perpetuation ultimately providing the circumstances within which the offences in counts 7, 8 and 9 were committed. The "residual effects", as the Crown describes them, of the association between the applicant and complainant during the pre-end of school relationship was relevant to the appropriate assessment of the objective seriousness of the counts 7, 8 and 9 offences, the more so since the residual effects relied upon by the applicant to create the circumstances in which the association with the complainant was continued and in which thereby those offences were committed. 85 Accordingly, notwithstanding the one error of fact, the overall characterisation by his Honour was correct and reflects no error. 86 The Crown's arguments are persuasive. Nonetheless, surprisingly in my view, the Crown submitted that any "adjustment" would be slight. 87 Any "adjustment" must represent a sentence otherwise "warranted in law" (s6(3) Criminal Appeal Act: see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [79] and Sully J at [99]-[100]). My view is that the error was not such as to bring about the requirement of any adjustment because I am not persuaded that any other sentence, on this basis alone, was warranted in law. 88 The second basis upon which the sentences are attacked is that his Honour gave insufficient weight to the applicant's favourable subjective features. His Honour said: "The further aspect to which I should refer is that the prisoner, as was his right, pleaded not guilty to these matters, and he currently maintains that situation. That is his right. I make no criticism of him for that. But, as is tacitly admitted by Mr Hanley on his behalf, the consequences of that are that it is difficult, if not impossible, to find any subjective features favourable to the prisoner. I should say, and make it clear now, that there is nothing before me to justify me in concluding that there is anything here that could be called special circumstances justifying my altering the normal ratio of three quarters between the head sentence and the non-parole periods for the various offences". (ROS pp4 & 5) 89 This Court was reminded of what McHugh J said Ryan v The Queen (2001) 206 CLR 267 at paragraph [38] at 278 and certain observations of Slicer J in the Supreme Court of Tasmania in R v F (1998) 101 A Crim R 578 at 583 and of Dunn J in Bell v R (1981) 5 A Crim R 347 at 351. 90 It is clear that here the learned sentencing judge made no mention of the applicant's rehabilitation nor risk of re-offending. Nearly 20 years without any evidence of re-offending was a significant factor, it is said, which should have led his Honour to conclude that the applicant was rehabilitated and unlikely to re-offend, and such a finding would have worked in his favour so as to reduce by "a significant margin" the head sentence and the non-parole period. 91 I am of the view that the learned sentencing judge did not proceed on the basis that because the applicant had refused to admit his guilt it was difficult, if not impossible to find any favourable subjective circumstances. Nor did the learned sentencing judge proceed on the basis that the applicant had demonstrated a lack of contrition. 92 The remarks by the learned sentencing judge disclosed that his Honour was acutely conscious that the denial of guilt by the applicant could not be held against him and was also sensitive to that situation precluding any consideration for reduction of sentence in recognition of an admission of guilt. Such an admission being relevant, of course, both on the utilitarian basis and as evidence of remorse and contrition. 93 It is also equally clear to me, as was submitted by the Crown, when one reads the remarks in context, his Honour was paying heed to the availability of the finding of special circumstances within s44(2) of the Crimes (Sentencing Procedure) Act 1999. 94 Further, his Honour made a specific finding that the applicant had no relevant prior criminal history. The applicant was afforded the full benefit of a clear criminal record. He thus was afforded the benefit of his prior good character and the fact that he had not re-offended in the period between the subject offences and the sentencing proceedings. 95 Except for 3 drug offences in 1996 and 1997 the applicant has no criminal antecedents apart from the present sentences; apart from those drug offences he has not re-offended at all in the 20 years since the present crimes were committed. 96 The allowance by the sentencing judge of a period of 2 years non-parole are, in my view, sufficient to meet the needs of rehabilitation. 97 Whilst the applicant's subjective circumstances were quite favourable, the offences for which he was to be sentenced were objectively extremely serious. As mentioned above, those offences for counts 1 - 5 are attended by the particularly aggravating circumstances that they were committed by the applicant in breach of his position of trust as a teacher/tutor of the complainant. The offences in counts 7, 8 and 9 were committed by the applicant in circumstances where he relied, as the Crown has said, on the presence of the residual effects of that relationship. 98 I am not persuaded, in view of the available maximum sentences and the totality of the criminality for which the applicant was to be sentenced, that those sentences are manifestly excessive allowing appropriate weight for the subjective circumstances of the applicant. 99 The third basis is that his Honour gave insufficient weight to the fact that the applicant will be required to serve his sentence in protective custody. 100 The applicant gave evidence on 25 October 2002 as to what had befallen him after his conviction and when he was classified to be in protective custody. He also gave evidence as to the limitations, severe that they are, placed upon him by reason of that status and of a constant regime of abuse from fellow prisoners. His Honour said: "I have heard the prisoner's evidence about the problems he faces in custody. It is a regrettable fact that although everybody tries to keep matters confidential, somehow others become aware of it. And it is, as I understand it, acknowledged by the courts that the sentence, most of it, if not all of it, will be served in strict confinement or protective custody. As I understand it, that factor is acknowledged in the various authorities from the Court of Criminal Appeal, where they have to deal with matters such as these in considering appropriate sentences. I refer to it to show that I have acknowledged it, but I am not, as far as I am aware, justified by any particular authority of giving any particular discount in respect of that. I just state that I have taken that into account in arriving at the appropriate sentence for these matters". (ROS p4)

101 These remarks were understood by the applicant to indicate that his Honour had factored the strict confinement of the offender in protective custody into the sentences that he was about to impose, and that the Court of Criminal Appeal did not, by any of its authority, require him to stipulate a particular discount for this factor - which is acknowledged to be correct. Yet given the length of the sentences that were imposed and the fact that his Honour found that there were no special circumstances under s44(2) Crimes (Sentencing Procedure) Act, it seems that his Honour, so it is said, gave insufficient weight to the fact of strict protection. Well known passages were thereafter cited by the applicant from The Queen v AB (1999) 198 CLR 111 per Kirby J at 152 and from R v Davies (1978) 68 Cr App R 319 and remarks of the English Court of Appeal in that regard. See also R v Perez-Vargas (1986) 8 NSWLR 599; R v Cartwright (1989) 17 NSWLR 243; R v Gallagher (1991) 23 NSWLR 220 and R v AB (No 2) (2000) 1178 A Crim R 473 at 477-479 per O'Keefe J. The principles are well known. 102 It is clear that the learned sentencing judge did acknowledge the requirement for the sentence to be served in protective custody. He took that feature of the matter "into account in arriving at the appropriate sentence for these matters". As even the applicant appears to acknowledge, such an approach was correct. That acknowledgement for the applicant was appropriate as it was inevitable in the light of such decisions of this Court as R v Wahabzadah [2001] NSWCCA 253, R v Scott [2003] NSWCA 28 at para [26] per Bell J; R v Totten [2003] NSWCCA 207; R v Durocher-Yvon [2003] NSWCCA 299 and now see, for example, R v Stockdale [2004] NSWCCA 1 again per Bell J at para [22]. I add that this Court is frequently provided with the publication "Protective Custody and Hardship in Prison" by Lynne A Barnes, a publication of the Judicial Commission of New South Wales in its Sentencing Trends series (No 21 - February 2001). This valuable analysis, however, is no substitute for actual evidence before a sentencing judge. In the instant appeal, as I have remarked above, his Honour had heard of the applicant's situation and properly took it into account 103 The Crown submits that in view of the objective seriousness of the offences committed by the applicant and the available maximum sentences, the sentences imposed demonstrate a significant degree of leniency consistent with this aspect of the matter having been given appropriate weight by the learned sentencing judge. In relation to counts 1, 2, 3, 5, 7 and 9 the maximum sentence available was 5 years imprisonment: each attracted a fixed term of 2 years. In relation to counts 4 and 8 the maximum sentence was 14 years and each attracted a sentence of 8 years with a non-parole period of 6 years. Partial cumulation was ordered for the sentences on counts 1, 2, 3, 5, 7 and 9 and the total effective sentence of all those sentences was a term of 6 years. 104 The sentences on counts 4 and 8 were structured so that they were to be served concurrently with each other and those other sentences and the Crown submits that the resulting total effective sentence of 8 years with a total effective non-parole period of 6 years does not demonstrate any failure on the part of the learned sentencing judge to give appropriate weight to the protective custody aspect. 105 Nor, at this point might I speak for myself by saying, does the ultimate sentencing reflect any error warranting intervention. 106 The above remark is made in anticipation of the fourth ground on which the severity of the sentence is attacked, namely special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act. All that the applicant really asserts in relation to this ground on a discrete basis is that the head sentence should be reduced by "a substantial margin" and that non-parole period should also be reduced in a way which demonstrates that there are special circumstances within the meaning of the legislation. It should be clear from my views expressed in relation to the several grounds hitherto dealt with that the learned sentencing judge could only have allowed a reduction in the total effective non-parole period provided that such a reduced total effective non-parole period would have appropriately reflected the criminality of the applicant. As I have said, the sentencing judge made an allowance for the appellant being kept in protective custody when determining the terms of the individual sentences to be served. Accordingly, the total effective sentence was reduced below that which would otherwise have been imposed. Consequent upon that reduction to the total effective term of the sentence there was a commensurate reduction to the total effective non-parole period that would otherwise have been applied. 107 Any reduction of the total effective non-parole period below 6 years would have led to circumstances in which the period ceased to have appropriately reflected the applicant's criminality. 108 In the end, even if error can be identified, even if a different view could be formed as to the nature of the weight given to the protective custody aspect or to the otherwise apparent good character of the applicant, I am not persuaded that any other sentence was warranted in law. 109 Accordingly, the orders I propose are:

(1) That the appeal against conviction be dismissed.

(2) That leave to appeal against sentence be granted; but

(3) That the appeal against sentence be dismissed. 110 HOWIE J: In this matter I have received the very substantial benefit of having read in draft the judgment of Levine J. I agree with the orders proposed by the Presiding Judge and substantially with his reasons. I wish to add some remarks about two of the grounds of appeal. Ground 1 111 In Longman v The Queen (1989) 168 CLR 79 at 91, the following passage occurs: "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". This is the genesis of the warning that a trial judge should give in cases such as the present. The warning is of the danger of convicting on the evidence of the complainant after a period of lengthy delay between the alleged offence and complaint.

112 That is substantially the warning that was given by the trial judge in the present case.

113 Of course any warning to be efficient must explain why the warning is necessary so that the jury understands its import and can evaluate the evidence appropriately to determine whether they should convict the accused notwithstanding the danger in doing so. Hence the bare warning derived from the passage above is not sufficient to overcome the possibility of a miscarriage if it is not accompanied by an explanation of the need for the warning and with sufficient information for the jury to be able to assess the evidence in light of the warning given.

114 In R v Stewart (2001) 52 NSWLR 301 I referred to the analogy of a road sign in considering what the contents of a warning should be. The sign can give the warning alone, or carry with it the reasons for the warning and in addition the response to the warning: for example, "Danger, falling rocks, do not stop". In a Longman situation the warning has these three component parts; the warning (it is dangerous to convict); the reasons for the warning (because the accused has been prejudiced by delay) and the response to the warning (to carefully scrutinise the evidence before convicting upon it). Section 165(2) of the Evidence Act requires that a warning have these three component parts, unless there is a good reason for not doing so. See Stewart at [122].

115 To ensure that the warning is effective the trial judge must relate the danger to the specific difficulties faced by the defence by reason of the delay: R v Johnston (1998) 45 NSWLR 362 at 375. Where there is extensive delay, it is presumed that the accused has been prejudiced by that delay even though no specific detriment can be identified; R v KWT (2002) 54 NSWLR 241 per Wood CJ at CL at [14].

116 It should be noted that there is a difference between a warning and a comment. See Stewart at [82]-[83]. After indicating the difference between these two types of judicial statements made in a summing up, Kirby J in Crampton v The Queen (2000) 206 CLR 161 at [129] stated: "[129] The warning in a case involving a long delay between an alleged offence and a complaint is, in part, an element in the balance required by the law in such matters. In overseas jurisdictions courts have been more willing than they appear to have been in Australia to provide a permanent stay of proceedings to protect accused persons from the injustices that can arise in attempting to mount a defence to such charges years, or even Decades, after an alleged offence occurred. But this has been so, in part, because Australian courts know that Longman obliges trial judges, in cases such as the present, not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial".

117 Hayne J at [142] referred to the distinction between a warning and comment (footnotes omitted): "[142] The trial judge did comment about the fact that the complainant made no complaint about the appellant until long after the incident was alleged to have occurred. As the trial judge said to the jury, this deprived the appellant of an opportunity to 'look at matters which were happening at about [the time of the alleged incident] and to raise them in evidence' and it probably reduced the capacity of the complainant to be accurate. As the joint judgment in Longman points out, it was proper to remind the jury of considerations relevant to the evaluation of the evidence and these were considerations of that kind. But what has come to be known as a ' Longman warning' is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many 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. That warning was not given."

118 In Doggett v The Queen (2001) 208 CLR 343 at [126] Kirby J stated the following proposition:

"[126] Long delays - obligatory warnings : It would not ordinarily be expected that jurors would be aware of the findings of experimental psychology or of the common experience of forensic contests, and other data supporting the reflections about memory, mentioned in Longman . Judges, on the other hand are, or should be, aware of such matters. That is why, in a case of long delay, a warning must be given to a jury. A comment, or reliance on the comments or arguments of counsel, would not, in such cases, be sufficient".

119 The warning, therefore, is that contained in the passage from Longman set out at the commencement of these reasons. The matters in amplification of the warning, which point out the general and particular difficulties confronting the accused, are comments. It may be that, if the comments are so perfunctory or couched in such terms as to undermine their effectiveness in alerting the jury to the defects in the Crown's evidence or the prejudice to the defence case, the warning will fail to perform its function so that a miscarriage of justice has occurred. See Crampton at [44] and R v DBG (2002) 133 A Crim R 227 at [39]. But it does not seem to me to be the case that any defect in the comments made in conjunction with the warning must result in the quashing of the conviction. Some comments are quite unnecessary because they do not inform the jury of any matter that they would not themselves appreciate from commonsense and experience. See Doggett per McHugh at [83]. I do not believe that the law has reached the stage that a trial can miscarry simply because of the failure of a judge to remind the jury of a fact that would be obvious to any reasonable juror. See R v Kesisyan [2003] NSWCCA 259. 120 I accept that a Longman warning is a fundamental requirement of a trial where there has been extensive delay, so that the absence of an effective warning will itself lead to a miscarriage regardless of the attitude taken by the parties at the trial. But I am not persuaded that it is so with the comments that are attached to the warning. 121 The need for, and content of, a Longman direction was extensively examined and critically analysed by this Court in R v BWT. It is unnecessary to further consider the duty imposed upon a trial judge to warn the jury of the effects of delay and the inflexibility of approach that the members of that Court found had been imposed upon trial judges by the decisions of the High Court. That inflexibility, however, seems to me, with respect, to attach to the warning rather than to the additional comments to be made in explaining the warning in terms of the evidence before the jury. I have considerable difficulty in accepting the proposition that the mere failure of a trial judge to comment on one particular aspect of the complainant's evidence, and one that is a matter of common experience, will automatically result in a miscarriage of justice notwithstanding that every other aspect of the warning and the accompanying comments were impeccable; cf R v JBV [2002] NSWCCA 212. 122 R v BWT, however, can be distinguished from the present case because there a warning in terms of the passage in Longman that I have quoted above was not given to the jury. The defect in the comments made to the jury, which were identified by the Court in R v BWT, was that they did not indicate to the jury that the accused was prejudiced by the delay. Rather they erroneously referred only to the possibility of prejudice both generally and in particular respects. Whether that defect alone would have been sufficient to require the quashing of the convictions is a moot point. But it might be reasoned that these comments misled the jury by not making it clear that the accused was prejudiced even though that prejudice might not have been identified by any practical difficulty encountered by the accused in defending himself. 123 In the present case the warning given by the trial judge was unexceptional. His Honour told the jury that:

"Because of the lapse of time here, I am bound to warn you that it will be dangerous to convict the accused on the evidence of [the complainant] unless you, scrutinising the evidence with great care and considering the circumstances relevant to its evaluation and paying heed to that warning which I have given, were satisfied of its truth and accuracy".

It is important to note that the warning is in positive terms; "it will be dangerous". There is no suggestion that the danger may not be present in the trial before the jury or that they can simply disregard it. Whatever is said later about the warning in the summing up has to be viewed in the light of this uncompromising assertion. 124 Immediately before this warning, his Honour told the jury that "it is very important" that they realise there was a delay before the accused was informed of the allegations and that the passage of time, "can cause, and in this particular case is said to have caused, significant difficulties to the accused in preparing and mounting his defence to these allegations". Two criticisms are made of this statement. The first is that his Honour did not make a positive assertion that the accused had suffered prejudice by reason of the delay but merely recognised the possibility. The second is that the positive assertion of prejudice is merely attributed to a defence submission and does not carry with it the judicial imprimatur of an undisputed fact. 125 If these statements had stood alone, the criticism may have been justified. But his Honour went on immediately to say to the jury, "the law recognises this [the possibility of prejudice] and it is necessary for me to give you some very specific warnings about it". The warning then given, as I have already noted, was in emphatic terms. The existence of the danger in convicting the accused was put neither as a mere possibility nor as a reference to a defence submission. It carried with it the force of law. 126 Immediately following the giving of the warning the trial judge said:

The reasons for it [convicting the accused on the evidence of the complainant] being dangerous include the following considerations. First of all it is said that the evidence of the complainant, [ ], cannot be adequately tested after the passage of so much time and in particular, in this case, a lot of surrounding aspects cannot be fully or, in some cases, investigated at all. I shall give some example of those, they have been referred to in the submissions of counsel. It may be that others have occurred to you. 127 Again it should be noted that what his Honour says about the reasons for the warning is premised on an acceptance of the danger of conviction as an existing fact in the trial before the jury. Although his Honour does not assert in positive and emphatic terms that the complaint could not be adequately tested, I do not believe that this undermined the emphatic nature of the warning. The examples that his Honour gave of the particular disadvantages caused by the delay are stated in terms of undisputed facts. So his Honour told the jury:

There were some aspects of [the complainant's] evidence that could have been investigated by way of a search warrant or other evidence there and then at the time. 128 After giving an example of what evidence may or may not have been discovered had the police been able to search the appellant's premises, such as photographs of the complainant naked and pornographic videos, the trial judge stated:

"The search, and this is [an] illustration of the way the law looks at the effects of delay , if, for example, the search had established that, in that it failed to discover any of these things, then that would be significant assistance to the accused in contradicting the evidence of [the complainant]. He would be able to say, well look, where are they? Here are the police, they have had a look, cannot find them….." 129 In that passage and in the further examples his Honour gave of matters that could not be investigated because of delay, the jury were being effectively alerted to actual prejudice suffered by the accused in the trial before them. The jury could not have thought that his Honour was merely repeating a defence argument or submission: they must have understood that the law recognised an actual prejudice had been occasioned to the accused by the delay. 130 In giving numerous examples of the type of prejudice suffered by the accused, the trial judge often used expressions such as "the defence say", "the accused says", and "they complain that". But his Honour also reminded the jury that the prejudice was a matter recognised by the law and a factor that had to be taken into account in their assessment of the evidence of the complainant. At the end of these examples of the prejudice actually suffered by the appellant, his Honour said:

That is a series of illustrations. More may occur to you but it is my duty to remind you of those because they have been referred to in the evidence, in particular, which are raised and are one of the aspects why I am obliged, by the law, to tell you that it is dangerous to act on the complainant's evidence on that aspect.

His Honour then went on to warn the jury of the frailties of human recollection. 131 In my opinion, although the warning may not have been perfect so far as the comments associated with the warning were concerned, the warning as a whole adequately brought home to the jury; the danger of convicting on the evidence of the complainant; why that danger existed; and how the jury should assess the evidence because of that danger. The warning itself was clear and emphatic. The jury were alerted to the real and existing danger of convicting on the complainant's evidence. They were informed that the warning was given as a matter of law and it was necessary because of the prejudice actually suffered by the accused in defending himself. The jury were told that the trial judge was duty bound to repeat the examples of the difficulties faced by the accused because they were raised in the evidence. 132 In my opinion the warning as a whole was not so defective as to have given rise to a fundamental flaw in the trial. I do not believe that, when read as a whole, anything his Honour said, or did not say, had the practical effect of watering down the warning such that a miscarriage of justice may have occurred. In particular, I am not persuaded that the jury were not sufficiently alerted to the inability to properly test the complainant's evidence or had any lack of understanding of the difficulties actually faced by the defence in investigating whether there was evidence in existence at the time of the complaint that might have rebutted the complainant's account. 133 In any event this is a matter where rule 4 should apply. Defence counsel is in the best position to know what prejudice the defence has suffered as a result of the delay and what matters are of such significance that the trial judge should refer to them in order to secure the accused a fair trial. In the present case defence counsel asked for a Murray warning on the basis that the complainant's evidence was uncorroborated and such a direction was given. In making that request counsel expressly acknowledged that the trial judge had given a Longman warning. If counsel believed that the warning, when taken as a whole, did not comply with the requirements of Longman as set out in BWT, he should have said so. Any defect could have been easily remedied by further comment, if the trial judge thought it necessary to do so. 134 The fact that there may have been no tactical reason for the failure of counsel to take the point does not overcome the strictures of rule 4 or the need for the appellant to satisfy the court that a miscarriage may have occurred. See Moussa (2001) 125 A Crim R 505 at [60] and Mitten (2002) 132 A Crim R 123.

Ground 3 135 It is apposite in relation to this ground to draw attention to the fact that defence counsel is not at liberty to open to the jury in any way he or she thinks fit. The right of defence counsel to open immediately after the Crown opening is found in s 159 of the Criminal Procedure Act. The section provides

(1) An accused person or his or her counsel may address the jury immediately after the opening address of the prosecutor. (2) Any such opening address is to be limited generally to an address on: (a) the matters disclosed in the prosecutor's opening address, including those that are in dispute and those that are not in dispute, and (b) the matters to be raised by the accused person. (3) If the accused person intends to give evidence or to call any witness in support of the defence, the accused person or his or her counsel is entitled to open the case for the defence before calling evidence, whether or not an address has been made to the jury. 136 The section was introduced into Parliament as one of a number of provisions concerned with procedure in criminal trials in the District and Supreme Courts and contained in the Crimes Legislation Amendment (Procedure) Bill 1997. The Minister for Police, Mr Whelan, gave the second reading speech in the Assembly. In his summary of the provisions of the bill he described the provisions as introducing "a means of clarifying at an early stage the real issues to be placed before the jury", Hansard 14 May 1997 pg 8572. 137 Later in the Speech the Minister dealt with the provision as follows:

The next aspect of the bill constitutes a very significant step forward in trial procedure. The accused is given…………the option of making an early opening address on trial issues. Counsel for the accused - or the accused if unrepresented - may exercise that option immediately after the opening of the Crown case by the prosecutor. The address of the accused is to be limited generally to all or any of the matters disclosed in the prosecutor's opening address that are or are not in dispute and to the matters to be raised by the defence. The idea is to give the accused the option of identifying, right at the start of the trial, the real issues in the trial. That will be of value to all concerned, not least the jury, who will be able to observe all of the evidence from the very beginning, with the real issues of dispute firmly in mind.

It is important to grasp that it is entirely at the accused's discretion whether or not to make the new address, just as it is currently entirely at his or her discretion to decide whether or not to open his or her case if calling evidence, and whether or not to address the jury at the end of the trial. Furthermore, the making of the new address does not preclude the accused from opening his or her case if calling evidence for the defence. That is appropriate for two reasons. First, the two addresses are rather different in their general natures, though there may be some overlap in practice. One foreshadows the issues in the whole trial; the other foreshadows the evidence to be called by the accused. Second, the exercise of the option of making the new address, bearing in mind that it will be to the benefit of all, should be encouraged, rather than made into something that would only be done by the accused after a tactical cost-benefit analysis.

The opportunity has also been taken to simplify the layout of the provisions in the Crimes Act relating to addresses by the accused. An opening address by the accused on trial issues will help to crystallise which issues are in dispute. It will enable the jury to be in a better position to appreciate the significance of the evidence as it is given throughout the trial, and particularly in the prosecution case. Furthermore, it will allow the prosecution and judge to focus upon those matters which are genuinely in dispute.

The Attorney General introduced the Bill into the Council in a second reading speech that did not differ significantly from that given in the Assembly. 138 The genesis of the reform can be found in the Report of the New South Wales Law Reform Commission entitled "The Jury in a Criminal Trial" (LRC48 1986). In Chapter IV of that report the following recommendation and commentary is found:

Recommendation 43: The Crimes Act 1900 should be amended to permit the accused person or defence counsel, immediately after the Crown's opening address, to announce any matters of fact which are not in issue and outline briefly the issues in the defence case.

6.26 It is the practice in the United States for the defence to open immediately after the Crown opening. We do not suggest that the defence be entitled to open at this stage, rather they could make a short announcement briefly outlining the issues to be contested but not referring to evidence proposed to be called. The purpose of such an announcement, where defence counsel chooses to make it, would be to alert the jury at an early stage of the trial as to the nature of the accused person's defence. In this way the issues in the case could be narrowed and defined. To avoid the disadvantage to the Crown which could arise if the Crown opening were to be substantially separated from the Crown case, the defence outline (or outlines in the case of multiple accused) should not be lengthy or argumentative. Rather this opening should simply outline the issues and identify those matters not in contention. Time could be saved in some cases where this option was exercised because the number of disputed matters could be reduced. It is likely that the jury's understanding of the case would be increased. Their efforts can be concentrated on the issues rather than on assessing evidence that is not in dispute. We emphasise that this procedure should naturally be an optional one as there is no obligation on the accused person to put forward a defence to a criminal charge. 139 The purpose of the defence opening address under s 159(2), therefore, is to define, for the jury's benefit, the real issues in the trial and what the accused might say in answer to the Crown's allegation. It is not an opportunity for defence counsel to embark upon a dissertation on the onus and standard of proof, or the functions of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case. It behoves trial judges to ensure that the addresses of counsel are not open to abuse, particularly in a case where the contents of the address is circumscribed by a provision of an Act. To permit counsel to ignore such a limitation is not in the interests of justice, either generally or in the particular case. It may be appropriate for a trial judge to ensure, before the defence opens and in the absence of the jury, that defence counsel is aware of the limited basis of an opening under s 159 and that the address will comply with it. 140 The present is a good example of how defence counsel's address far exceeded the legitimate bounds of an opening under s 159 and almost caused the trial to miscarry. There was little of the address that complied with the section and a significant part of it was completely inappropriate, even if it had been contained in a closing address to the jury. 141 Defence counsel seemed to believe that, because the Crown, in a moderate and appropriate opening to which no criticism could attach, referred to the extensive delay in the complaint and the fact that one offence was referred to as "buggery", he was justified in making an opening address which included that part which is set out in the judgment of Levine J. 142 Even making allowance for apparent transcription errors, I have difficulty understanding the point that counsel was seeking to make in that passage of his address by referring to "stepping back in time….to the law that existed then" or to "the sort of morality that existed then even in relation to this offence". If he were concerned at the use of the term "buggery" to describe the offence, the proper way to approach the matter was to ask the trial judge to say something to the jury about the use of that term in the charge. But, in my opinion, it was completely inappropriate to introduce the topics of morality or a change in the law into the jury's considerations of the issue before them. The defence case was that the allegations were untrue. Questions of morality, of the nature of the offence, or of the differences between the current law and as it existed at some earlier time were completely irrelevant. In any event, it was not a legitimate matter to be canvassed in the defence opening. With respect, the trial judge should have taken the matter up with defence counsel to see what, if any, legitimate purpose there was in making comments which, so it seem to me, could only serve to distract the jury. 143 They resulted in the comments made by the Crown Prosecutor which have in part been set out in the judgment of the Presiding Judge and which gave rise to this ground of appeal. With respect, I agree that they were inappropriate and, in my view, to a very marked degree. But these were not the limits of the Crown Prosecutor's transgressions during his address. 144 The Prosecutor addressed the jury at some length about the warnings to be given by the trial judge about the effect of delay. This in my opinion had no place in the Crown Prosecutor's address, especially where, as here, the Crown sought to explain to the jury why those warnings were required and how the jury were to use them. The Crown was at pains to point out to the jury that the trial judge was not going to indicate his personal opinion about the evidence of the complainant, nor was he going to invite the jury to acquit the accused, but rather that these warnings were always given in criminal trials and were in effect "just common sense". 145 In my opinion it is no business of the Crown to seek to explain the reasons for the giving of directions or warnings by the trial judge or what they mean or how the jury is to use them. This is a matter for the trial judge: not the Crown Prosecutor. Counsel should understand that their principal function is to address on the facts and not to anticipate directions and warnings to be given by the trial judge and to put a gloss on them to assist the case they are presenting to the jury. In particular, the Crown should not use the consequences of delay in an attempt to explain or excuse the unreliability of the complainant as was done in DGB and to some extent in the present case. 146 The Crown must recognise, as the jury is required to do, that the defence has been prejudiced by the delay because of the inability to test the complainant, because of the vagueness and inconsistency in accounts where these occur, and because of the inability to carry out those investigations that might have raised a doubt about the truth of the complainant's account. There is no point in the Crown addressing the jury on some basis other than that which the law accepts is the consequence of long delay, and it is dangerous for the Crown to do so. The law not only binds the judge and the jury, but also the Crown Prosecutor in the submissions and arguments that can be put to the jury. 147 This does not mean that the Crown cannot seek by legitimate means to persuade the jury to accept the account of the complainant notwithstanding the delay and consequential dangers involved in doing so. It can of course counter what it anticipates will be any specific matter of prejudice which the defence will raise, by a reference to the evidence in the particular case. But it cannot attempt to attack or undermine the basic principles upon which such trials are conducted and which are manifest in the Longman warning. 148 This ground has troubled me, but I have ultimately formed the view that, in the absence of any complaint by defence counsel and in light of the summing up as a whole, it has not been made out. 149 This is yet another instance of a trial which has been in real jeopardy of miscarrying because of the conduct of counsel, in particular the Crown, both in the manner in which counsel addressed the jury and in their failure to provide the trial judge with the assistance necessary in carrying out the difficult task in summing up to a jury on such a matter. The fact that they must have known that it was a second trial makes their conduct even more irresponsible. 150 Since writing the above, I have become aware of a decision of the Court of Criminal Appeal of South Australia which touches upon the content of a defence opening and to which I should make reference. It supports the view that I had independently formed that the defence opening address in the present case was inappropriate and that the trial judge should have either intervened during it or taken steps after it to disabuse the jury of the false issues raised by the address. 151 In R v Hansen [2002] SASC 208, the Court considered what was said to be an opening by defence counsel in a joint trial following the Crown's opening. The statements made by that Court have to be viewed against the statutory basis for a defence opening in that jurisdiction which, unlike the position in this State, does not give the defence a right to open before the end of the Crown case. But it was accepted by the Court that, with leave, defence counsel could make a statement indicating the matters in issue after the Crown opening. 152 Defence counsel for one accused addressed the jury pointing out to them the following matters: the jury is to provide "checks and balances to make sure that an individual hasn't been wrongly accused"; that people are sometimes wrongly accused for reasons that are never disclosed; the jury was to scrutinise the evidence of the complainant with great care; the jury should not be prejudiced by the nature of the allegations; the presumption of innocence. 153 Counsel for the co-accused adopted what had been said by his co-counsel and added that it was a case of oath against oath and that this was why the jury had to carefully scrutinise the evidence of the complainant. 154 The statements made were criticised by the Court of Criminal Appeal as being inappropriate and inconsistent with an "opening" of a party's case, the only procedure provided by the relevant section, being s 288 of the Criminal Law Consolidation Act (SA). Lander J, with whom the other members of the Court agreed, stated:

[97] The purpose of statements made by counsel was to highlight in advance of the prosecution case the weaknesses in it. That was inappropriate. That amounted to argument.

Perry J stated that, where defence counsel was permitted to make a statement after the Crown opening, "the trial judge should be astute to ensure that the situation is not abused by counsel for the defendant attempting to give an advance instalment of his or her final address". 155 Although leave is not required for defence counsel to give an opening address to the jury under s 159, defence counsel should similarly not abuse the right given under the section by embarking upon arguments and submissions that are only appropriately made in closing address. As an opening address by the Crown should not contain any argument or submission to the jury as to the validity of its case, so the "matters disclosed in the prosecutor's address" referred to in the section, cannot be arguments or submissions arising from the nature of the evidence to be called by the Crown. Nor should "matters to be raised by the accused person" be taken to include defence arguments and submissions based upon the Crown evidence or evidence which may be called in the defence case. 156 SMART AJ: I have had the advantage of reading the judgment of Levine J and that of Howie J in which the facts and the issues are set out. I turn directly to the grounds of appeal. 157 Ground 1 I appreciate the distinction emphasised by Howie J between a warning and comments. In some instances for the warning to have any real meaning a judge has to set out the circumstances and the reasons underlying the warning. 158 In the present case the judge adequately explained to the jury how the appellant was prejudiced by the failure to be able to obtain, despite his best efforts, important material which may have assisted in rebutting the Crown case. He repeated some seven examples advanced by the appellant. 159 However, other important matters were omitted. The judge did not adequately explain that the delay gave rise to imprecision in the evidence of the complainant, a lack of detail which could be checked and an inability both by the complainant and the appellant to recollect all that had happened. 160 Nor did the judge explain that because of the imprecision, the lack of detail and the inability to recollect matters it was extremely difficult to cross examine the complainant effectively. Frequently, cross-examination as to the details surrounding the alleged offence and the surrounding circumstances provides a major opportunity and sometimes the only opportunity to test the complainant's evidence and assess his or her truthfulness and reliability. 161 The matter was put powerfully by Buddin J in R v GS [2003] NSWCCA 73 at [143]: "The method of cross examination is an attack upon detail, exposing contradictions and unreliability. If the trial is undertaken within a reasonable time, the excuse for unreliability of fading memory is unlikely to be persuasive. However, where the trial is delayed, the accused is disadvantaged in two ways. First, the testimony is likely to be more vague, bereft of the detail which may be used to expose unreliability. Secondly, that absence of detail, and any contradiction that may happen to emerge can the more easily be explained by reference to the passage of time. The jury therefore is more likely to be forgiving of shortcomings in the complainant's evidence, especially in the context of charges which arouse strong feelings of prejudice or revulsion". 162 The High Court in Longman (1989) 168 CLR 79 at 91 sets out the relevant warning, which reads in part: "as the evidence could not be adequately tested after the passage of [many] years, it would be dangerous to convict on that evidence alone …". 163 The warning specified by the High Court is an important statement of principle necessarily in somewhat general terms. Trial judges have to relate that warning to the facts of the case and make it meaningful to all 12 lay persons. While it is possible that some of the lay jurors may understand sufficiently what is meant by the words "could not be adequately tested" it is improbable that all of them would. Some explanation is necessary to explain what is envisaged by the words quoted. That explanation should cover not only that evidence that could not be obtained, but the important matters which were omitted and are outlined earlier. It should also be pointed out to the jury with lengthy delay an accused will not know all the evidence that could not be obtained or challenged. 164 Initially the judge told the jury that as the Crown case depended on the evidence of the complainant they should examine and scrutinise his evidence with great care and that the Crown had to establish that he was honest and reliable in giving his evidence. The judge told the jury that it was very important to realise that it was not until 1999 that the appellant was made aware of the allegations against him and alerted them that such delays can cause significant difficulties to the accused in defending himself against the allegations 165 The judge stated: "Because of the lapse of time here, I am bound to warn you that it will be dangerous to convict the accused on the evidence of [the complainant] unless you, scrutinising the evidence with great care and considering the circumstances relevant to its evaluation and paying heed to that warning which I have given you, were satisfied of its truth and accuracy." 166 After that warning the judge continued: "The reasons for it being dangerous include the following considerations. First of all it is said that the evidence of the complainant … cannot be adequately tested after the passage of so much time and in particular, in this case, a lot of surrounding aspects cannot be fully, or, in some cases, at all investigated." 167 He then recapitulated the examples referred to by counsel, reminding the jury that others may occur to them. As the judge went through each example he reminded the jury of the appellant's contentions and the problems caused by the lapse of time. 168 After setting out the examples and commenting upon them and the effect of delay the judge stated that the difficulties of investigation and obtaining evidence because of the delay were "one of the aspects why I am obliged by the law to tell you that it is dangerous to act on the complainant's evidence on that aspect." 169 The judge then gave a warning as to the fallibility of human recollection and associated factors. The judge concluded by reminding the jury that the appellant said that his ability to obtain evidence had ben severely curtailed, as illustrated by the examples and that there was also the effect upon human recollection of the passage of time. 170 During the course of summarising the arguments of counsel for the appellant and his comments, the judge said: "Then the comments, they are all tied in with the situation I have reminded you about the effect of delay on being able to deal with these surrounding facts …" 171 The judge also gave a direction under s 165 of the Evidence Act 1995, saying: "What [counsel for the appellant] has been asking is that I specifically tell you that [the complainant's] evidence may be unreliable and he is entitled to ask that and the reasons that it is unreliable or may be unreliable are all the reasons I have already covered with you, in particular, when I told you that it would be dangerous to convict. But, we have the lapse of time, the absence of what is called corroboration … There is nothing of that nature here and all the criticisms which I have been going through as to differences in the evidence and contradictions from the various witnesses relating to that given by [the complainant]. So I have to direct you, and I do, that for those reasons as well, to the others I have already told you about, his evidence may be unreliable." 172 The jury were directed more than once that before they could convict they had to be satisfied of the honesty and reliability of the complainant. Everything de[pended on his credibility. They were warned that his evidence may be unreliable. 173 In his summing-up the judge used words of allegation and complaint, for example: SU8.7 "is said to have caused significant difficulties" SU 9.2. "First of all it is said" SU12.8 "… they say" SU13.8 "But they complain"

SU14.4 "… the defence say" SU15.4 "They say" 174 While I regard the use of such words of allegation or complaint as both undesirable and incorrect, in the present case, when the summing-up is taken as a whole I think that the jury were sufficiently alerted to the difficulties faced by an accused in obtaining evidence demonstrating that the complainant's version was incorrect or unreliable when there has been a long delay between the alleged offence and the accused being told that he is to be charged. 175 No objection was raised by counsel for the appellant to the summing-up about the omissions now complained of. Nor were further directions sought. 176 The Crown Prosecutor in his closing speech referred to the complainant being cross-examined for two days about the surrounding details, that is, events relating to the establishment of the relationship between the complainant and the appellant, the continuance of their association and those leading up to and surrounding the alleged offences. They included meetings after school, arriving home late, the boat used in conjunction with the naval cadets, boating trips and access to the rowing shed, the pornography, the complainant's alleged telephone calls to contact the appellant, their playing squash at Rushcutters Bay, the first camping trip to Kangaroo Valley and the King's Cross Hotel. The prosecutor pointed out that there had been no cross-examination about the sexual events except it was put to the complainant that they had not happened. The Prosecutor urged the jury not to be diverted by the cross-examination on the surrounding circumstances and suggestions that the complainant had made mistakes of importance indicating unreliability and to concentrate on the sexual events. The prosecutor relied on the lapse of time accounting for any discrepancies or unsatisfactory passages of evidence. 177 Counsel for the appellant defended the length of his cross-examination stating that it was long because the complainant made many long unresponsive statements and did not address the question he was asked. Counsel explained to the jury that he cross-examined on matters that the jury might use to assess the complainant's reliability. The address did not contain a clear exposition of the matters now relied upon. A little later counsel pointed out, with examples, that because of the delay evidence which might otherwise be available to refute the complainant's allegations was not available. Counsel did not adequately explain to the jury the difficulties involved in cross-examining where the complainant's evidence lacked precision and he declined to specify with some precision when the alleged events happened and all the surrounding circumstances or at least the major surrounding circumstances. 178 Counsel for the appellant said: (T575) "I suppose I could have cross-examined [the complainant[] about these particular sexual episodes he says took place and developed. What I'd say to you is there is not much need to in relation to some aspects of it and I'm going to rely on your commonsense on your experience of life.":

I doubt if the jury understood the import of that obscure passage. I am not sure what counsel was trying to say. Perhaps there have been transcription difficulties. 179 Counsel addressed at considerable length on the difficulties faced by an accused in trying to meet charges relating to events which allegedly occurred so long ago, that is in 1982-1984. Counsel also referred to alleged improbabilities in the evidence of the complainant. 180 Close to the end of his address (T594) the appellant's counsel asked the jury to consider what he had put. This passage follows: "and those matters, as has primarily cross-examine (sic) been directed towards assisting you to the reliability you can place on the complainant. And the only way it can be tested is by looking at the surrounding circumstances, facts, documents that still exist …if you don't accept his reliability on these other issues … how can I convict a man of a serious offence." 181 While that passage contains a reference to the point counsel was trying to make, it is not well expressed and it would not have been easy for the jury to follow. 182 In my opinion, given the lack of precision in the complainant's evidence, his reluctance to be tied down, the Crown's reliance on the lapse of time to explain the lack of precision, the defects in the complainant's evidence and the Crown's attack on the cross-examination of counsel for the appellant, it was incumbent upon the judge to give the directions omitted. He had to adequately explain to the jury the difficulty in cross-examining on the complainant's evidence, with its lack of precision and details which could be tested in cross-examination and that in these circumstances the appellant was largely confined to cross-examining on the surrounding circumstances showing that his evidence as to some of these was unreliable. 183 The absence of any request for the omitted directions by counsel for the appellant at the trial is troubling. Notwithstanding this, I regard the omitted directions in the circumstances of this trial, especially in the light of the prosecutor's attack on the cross-examination of counsel for the appellant as fundamental to a fair trial. No jury would appreciate, unless clearly explained by the judge, the major difficulties in cross examining the complainant and the disadvantages which flowed from those difficulties and the delay. 184 There has been a miscarriage of justice. Ground 1 should be upheld. Leave to appeal should be granted, the appeal allowed and a new trial ordered. Ground 2 185 I am in substantial agreement with the reasons of Levine J for rejecting this ground. Ground 3 186 In his opening speech the prosecutor pointed out that the first six charges alleged offences occurring between 1 January 1982 and 31 December 1982 (later amended to 31 January 1983) and that the remaining charges alleged offences between 1 January 1983 and 31 December 1983. It was stated that this was not uncommon. The prosecutor continued: "Now the reason why offences of that nature [sexual assaults] are charged in this fashion is really just common sense Given the passage of time, it would be unrealistic to expect [the complainant] to nominate a precise date on which it occurred. It's just commonsense." 187 It is not common sense that such lengthy periods should be specified. They flow from the alleged lack of memory of when the alleged incidents occurred. 188 Counsel for the appellant made an opening speech following that of the prosecutor and before any evidence was led. I agree with Howie J that the speech of counsel for the appellant exceeded the bounds permitted by s 159 of the Criminal Procedure Act and that it is important that those bounds be observed. 189 This impermissible passage appeared: "Reference has been made by the learned Crown to the fact that these matters are very old, 19 or 20 years ago. In many respects we are stepping back in time, not only in relation to the events that occurred, but to the law that existed then. You have heard the term buggery used. They referred to them as an abominable crime of buggery you might think that represented the sort of morality that existed then even in relation to this offence. It is not referred to in that term any more. So looking back the time as events that occurred, but looking back in time in relation to the law that was applied then and that has a number of effects and I would ask you to keep that in the forefront of your mind when you are considering the evidence, because you have to assess this evidence to that degree of your being satisfied beyond reasonable doubt." 190 Counsel for the appellant pointed to the difficulties of remembering what happened 19 to 20 years previously and the difficulties which the appellant faced in trying to meet the allegations made. 191 In his closing speech the prosecutor said: "There was a time, not too long ago, when people thought things like this simply didn't happen. When such things were swept under the carpet. When young people were thought not to be believed. And when cases like this were rarely prosecuted for a number of reasons, including that the offences occurred many years before. Now as a community we hope that attitudes have changed." 192 The prosecutor next quoted the impermissible passage from the speech of the appellant's counsel set out earlier. The prosecutor referred to the changes to the law in 1983 and said: "And it demonstrates how, as a community, how far we've come. We've changed the point where once upon a time, '82, '83 there was no other offence, other than the general law of buggery, which was capable of specifically dealing with the unlawful sexual intercourse with a child. That's how far we have come in nearly 20 years." 193 The prosecutor continued: "Perhaps over the past 20 years we've come to understand amongst other things how important an uncorrupted youth is to our ability to live as healthy adults. But this trial is an example of how enlightened a community we have become. As a community we have confronted the reality of the exploitation of children by those in positions of trust, and we no longer hide from that reality. It is no longer acceptable to take the view that because the abuse took place many years ago that it's not worth pursuing, or that it didn't happen at all We've come to recognise that the sexual exploitation of children occurs in cities and towns. It occurs in the most respectable quarters of our community. It occurs in places we would expect a child would be safe. Our churches, family homes, and our schools. Sometimes the offending continues for quite some time. People around the place don't see what they don't expect to see. But more often than not in cases such as this there are no witnesses, because sexual offences, by their very nature, invariably occur in private, away from prying eyes. Mr Hanley said it himself, in his opening, when he said this. 'And these are the sorts of cases whether they be committed last week or 20 years ago usually there are no other witnesses.' And that's true. The purpose of me saying all of this to you is not to inject an emotional element to what your task is. It is not to ask you to avenge the wrongs of the past, or engage in moral judgments. Ultimately you must act according to the evidence without fear or favour. The purpose of all this is to bring me to say something about the law in this case. As I said to you over a week ago in my opening to you, the primary witness in this case is [the complainant]. There is other evidence which supports what [he] has told you, and I'll return to that later. However in cases where there is only one witness to an event, the law requires in every case that a judge must direct a jury that the evidence of that witness must be scrutinised with great care, before a conclusion is arrived at, that a verdict of guilty should be brought in. Must be scrutinised with great care. It is not a direction which is custom made for this case, specifically for this trial. His Honour will sum up the case after both myself and Mr Hanley have addressed you. But by giving that direction you are not being told by anyone to acquit the accused. It is not an expression of anyone's view of the evidence. If that were so then when this direction is given no-one would be convicted, and that would be absurd. What you are being told is just plain common sense. Nobody should be convicted of a criminal offence without the evidence being scrutinised with great care. 194 Despite the prosecutor's disavowal, he was in fact making a sustained emotional pitch designed to, and having the effect of, encouraging the jury to think that the community had entered an enlightened era in which the jury should convict. 195 This part of the speech was designed to nullify the effect of the Murray direction and the special care which the jury should take when dealing with charges where the Crown case depended substantially on one witness. 196 The prosecutor then attempted to neutralise the direction the judge would give in respect of the lengthy delay which had occurred between the time of the alleged offences and the reporting of the matter to the police, including the notification to the appellant of the complaint. The prosecutor said: "The passage of time I anticipate will be something [the appellant] will rely upon heavily in attempting to persuade you that he should be found not guilty. And I will return to the merits of that argument in a moment. But again the law requires a judge to give directions to every jury if there is a delay. The law requires that where there is delay the direction must be given by a judge that it would be unsafe or dangerous to convict on the uncorroborated evidence of a complainant alone, unless the jury have scrutinised the evidence with great care and satisfied of its truth and accuracy. Well again that is not a direction custom made for this trial. It's a direction which has been formulated out of the law's experience and plain common sense. And it's given in every such trial. Common sense because again it is just common sense that nobody should be convicted of a criminal offence without scrutinising the evidence with great care. And I notice by reading the notes that you've sent out over the past few days that you are doing just that, looking at the evidence. It's all this direction asks you to do. It's common sense that to do other than what you are doing is a dangerous course. And I think you are already engaged in the type of approach that is not a dangerous one, and that is scrutinising the evidence. Again the directions given to you are to guide you in the right direction. No-one is expressing their view about this case. It is just a direction you must accept, follow and apply as you have been already. The law can guide you, but together the twelve of you bring together your collective common sense and experiences in life, and that is why we have juries. You are the judges of the facts, and in that arena nobody can tell you what to do. Your deliberations remain in the privacy of the jury room, and your verdicts are between you and your conscience." 197 The prosecutor has not reproduced the Longman warning in its entirety. Of more importance is that the prosecutor has attempted to emasculate the Longman warning. It is more than the application of common sense. It comes out of the long experience of the courts and the need for additional care to be taken where there has been a long delay. 198 It is impermissible for a prosecutor to seek to lessen the impact of the directions of law which the judge is required to give. The prosecutor should not have made the statements set out in the passages extracted from his final speech. It is for the judge to give the directions of law. They are not a matter on which the prosecutor should address and comment. 199 There were further objectionable passages in the prosecutor's address. After the prosecutor had reminded the jury that consent was irrelevant he continued: "That is the law … we don't need the law to tell us that really do we? Because how can a boy of tender years and maturity not experienced in the ways of the world, truly understand what it means to consent to the advances of a man more than twice his age. We know the law prescribed an age of consent. It does that for two reasons. One to protect young people from the predatory sexual motives of others, adults, and secondly to protect them from themselves." 200 This was not a subject for address by the Crown in the present case. All the jury needed to be told was that consent was irrelevant and that was a matter best left to the judge. What the prosecutor said had the effect of stirring up illicit prejudice. 201 Later in his address the prosecutor said: "Well ladies and gentlemen another direction given by judges to juries, when there's been a delay before the matter is brought to Court requires the judge to point out the disadvantages the accused may suffer because evidence is lost in the meantime, evidence which may have supported his case. That is a direction given, and does not diminish the fact that the Crown bears the burden of proving the charges beyond reasonable doubt at all. But it is a direction given, but it places the defence at a disadvantage in meeting the allegations. Well that is a matter you must take into account, bearing in mind that the accused does not have to prove anything. But as you will observe during the course of this trial, it is a disadvantage also suffered by [the complainant]. As I told you in my opening it would be ridiculous to expect a witness to give evidence of the precise dates upon which certain identifiable acts are alleged to have occurred. That is why the indictment is framed in the way it is. The amendments I made to the indictment at the close of the Crown case, occurred as a result of [the complainant] conceding, not arguing with, but conceding with the defence that the events concerned might have spilled over early into the following year." 202 This again has the effect of weakening the effect of the Longman warning. It is not the function of the prosecutor to mount a commentary on the directions which the judge is expected to give. 203 Again, counsel for the appellant did not ask for the jury to be discharged or for directions to be given telling the jury to disregard the objectionable remarks of the prosecutor and specifying them. 204 In my opinion the impermissible comments of the prosecutor had the effect of neutralising the judge's directions and warnings and went into matters which fell within the province of the judge. It is a little surprising that the judge did not stop the prosecutor and restrict his closing address. 205 Ground 3 has been established. The prosecutor's closing speech resulted in a trial which was fundamentally flawed. There has been a miscarriage of justice. 206 When Grounds 1 and 3 are combined the need for a new trial is compelling. Ground 5 207 I am in substantial agreement with what Levine J has written. Ground 6 208 I disagree with Levin and Howie JJ as to the outcome in respect of grounds 1 and 3. These are new trial points. 209 I agree with Levine J that there was a rational basis for the jury to convict on counts 1 to 5 and 7 to 9 and acquit on count 6 substantially for the reasons he has given. 210 I also agree with Levine J that the five features of the complainant's evidence described as unsatisfactory and set out in his Honour's judgment do not warrant the conclusion that the verdicts of guilty were not sufficiently supported by the evidence. While there was no evidence directly corroborating that the appellant committed the offences of which he was convicted, there was other supporting evidence which went to support the complainant's evidence. It was open to a jury acting reasonably to be satisfied of the appellant's guilt beyond reasonable doubt. I decline to uphold Ground 6. 211 Because of the conclusion I have reached, the question of sentence does not arise. 212 I propose the following orders: 1. Appeal allowed, convictions quashed 2. A new trial of counts 1 to 7 and 7 to 9 be held.

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