[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.