21 But if a warning is required, the reason for the warning means that it is insufficient simply to tell the jury that it is dangerous to convict on the evidence of the complainant (or if the circumstances raise it other witnesses for the Crown) unless the evidence be scrutinised with greater care. The reason must be made known, and then the jury should be told of the consequent need to scrutinise the evidence with great care.
22 Longman v The Queen was reaffirmed in Crampton v The Queen (2000) 176 ALR 369. It was there held that, although the trial judge had referred in general terms to the potential disadvantages of delay to the accused, what was said was too little and insufficiently emphatic. Gaudron, Gummow and Callinan JJ, with whom McHugh J appears to have agreed on this point, said (at [45]) -
"The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury."
23 In Doggett v The Queen (2001) 75 ALJR 1290 the majority considered that "a Longman direction" was required notwithstanding that there was powerful corroboration of the complainant's evidence.
24 Gaudron and Callinan JJ set out (at 1297) a number of reasons why, in the particular circumstances, such a direction was required, and said -
"The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary. That exercise should more appropriately be carried out in the overall assessment of the case, if and after error has been established, to enable the Court to decide whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied."
25 Kirby J said (at 1310-11) that corroboration did not negate the need for a warning, if it was otherwise required, because the danger of a jury failing to take into account "the special forensic dangers mentioned in Longman" remained.
26 In the present case the evidence of Guy, Dean and Brett was, with the exception of the two charges involving Brett to which the appellant had pleaded guilty, itself denied by the appellant and subject to the same potential impact of delay as the evidence of the complainant. The existence of that evidence is not a circumstance obviating the need for a comment or warning because of delay between the events of 1976-78 and 1997 or the trial.
27 In the circumstances of the present case, was a direction on that matter required? If it was, the precise formulation of the direction will not be of great significance, because no relevant direction at all was given.
28 It is material to bear in mind the youth at the time of the complainant, Dean and Brett, their evidence being central to the Crown case. The care with which, for that reason, their evidence was to be considered carried with it importance to the appellant of being able properly to test it and to put forward his own case. This, in my view, was what Gaudron, Gummow and Callinan JJ had in mind in Crampton v The Queen when they said (at [45]) that the trial judge should also have "drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman", including "the fragility of youthful recollection".
29 The appellant identified particular matters said to constitute disadvantages in the conduct of his defence by reason of delay.
30 As to counts 1 and 2, the Crown case was that the indecent assault and buggery occurred after attendance at a blue light disco at a community hall in Cronulla. The complainant said that he went with the appellant in a Toyota Corolla or Corona to a place near the Kurnell oil refinery where the offences took place. The appellant's denial that the offences occurred included denial of attending the disco or going to the Kurnell area, and he said that he did not have a Toyota Corolla or Corona at the time. It was submitted that the delay meant that he was unable to inquire into when discos had been held at the community hall and possibly to establish that he was elsewhere when, on the complainant's evidence, he was meant to have attended the disco, and that but for the delay he could have sought to identify the site near the Kurnell oil refinery where the offences were alleged to have occurred so that the complainant's evidence in relation to that site could be properly tested.
31 The appellant was able to produce a certificate from the motor vehicle authorities which, although it was not in the appeal papers, it was agreed showed that he bought a Toyota Corolla panel van in March or April 1980. To this extent he was able to meet the complainant's evidence notwithstanding the delay. But the doubt thereby cast on the complainant's evidence made it all the more important to ask whether the appellant had been otherwise prejudiced by the delay. In my opinion there is force in the submission that he may have been.
32 As to count 3, the complainant gave evidence that the buggery occurred at the appellant's flat when he shared the appellant's bed and his cousin, whom I will call Jason, slept on a fold-out bed in the lounge room. Jason was aged about five at the time. The complainant said that the appellant used a tube of white lubricant. He also said that the appellant took Jason into his bedroom and that he heard Jason complaining, weeping, and saying "No, no, no. It hurts. What are you doing?". Jason was called by the Crown. He had no memory of any such occasion or of being hurt by the appellant. The appellant denied all these matters, and said that Jason had never been to premises he was occupying. The appellant submitted that, absent delay, Jason might have been able to say with certainty whether or not he had stayed overnight with the appellant and the complainant and whether at any stage the appellant was in bed with the complainant, and more importantly that he would have been able to say whether or not he had been hurt as suggested by the complainant's evidence; he also submitted that a search could have been conducted of the flat to see if there was a tube of lubricant.
33 I do not think that this is of such force. A search for a tube of lubricant would have required very little delay, and there is no similarity with the delay in Longman v The Queen (cf R v The King (2000) NSWCCA 507 at [36], [60]): further it would have been obvious to the jury, if counsel for the appellant had sought to bring the point out, that after any significant delay any tube of lubricant would most likely not have remained.
34 In connection with the appellant's flat, the complainant gave evidence of an occasion when he locked himself in the toilet to avoid sexual activity and then ran naked to the front door of the house of which the flat was part and was seen by occupants of the house. The appellant denied any such incident. One of the occupants of the house was called by the Crown, and said she had no memory of such an incident. It was submitted that, absent delay, the other occupants could have been called to give evidence about whether the incident occurred. There is some force in this.
35 As to counts 4 and 5, the complainant gave evidence that the occurrences were accompanied by the insertion of a pin on a number of occasions into his lower abdomen. This, together with the occurrences themselves, was denied by the appellant. It was submitted that timely complaint could have permitted a medical examination to see whether there was an injury to the complainant's lower abdomen consistent with the insertion of a pin. Again, I do not think there is much force in this. This is not the kind of delay with which Longman v The Queen is concerned.
36 As to count 6, according to the complainant the indecent assault occurred at the house of the appellant's father. He said he remembered a talking magpie and a lot of large trees. According to the appellant he was estranged from his father, and he denied ever taking the complainant to his father's house; he also said that his family had not had a talking magpie, although it had had a noisy but non-talking galah. It was submitted that the delay meant that the occasion of going to the house could not be identified, and the appellant did not have the opportunity to establish that he had been elsewhere.
37 The appellant called his mother, who said that the family had not had a talking magpie. This was perhaps less compelling than production of the bird. It was not submitted that the appellant had been deprived of his father's evidence, and we were informed that his father was still alive. The disadvantage to the appellant was less than it could have been. There was nonetheless some disadvantage.
38 As to count 7, it was submitted that in the absence of delay a search could have been made at places where the appellant lived or in his car for the photographs, so that if they were not found doubt would have been cast on the act of indecency alleged. To my mind this is speculative.
39 Two more general matters were raised.
40 First, there was evidence from the complainant that the appellant told him to sniff a rag with a chemical in it, and that he lost consciousness and awoke wearing different clothes. There was evidence from Guy of being shown an ether bottle by the appellant. The appellant denied the occurrence and denied ever having a bottle of ether. The Crown suggested in cross-examination that the appellant obtained a bottle of ether from the chemical laboratory of a school at which he worked as a cleaner. The appellant denied this, and said that he did not have access to the chemicals. It was submitted that, absent delay, the appellant could have called evidence to support his lack of access. There is some force in this.
41 Secondly, it was said that but for the delay the complainant and Dean and Brett could have been asked to describe the sexual activity without the knowledge of sexual activity they had obtained as adults, so that the delay had the potential to distort the evidence they gave. This invoked risk of unfairness of a rather different kind, but nonetheless prejudice to the appellant in that his ability to test the evidence of the complainant, Dean and Brett was impaired because of the maturity they had achieved. I accept that there is some force in this, although without concentration on knowledge of sexual activity. It is part of what McHugh J described in Longman v The Queen at 197-8 -
"The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), pp 269-270.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely."
42 Regard should be had to the fact that a direction was not sought at the trial. More than that, a reading of the transcript does not show the appellant's counsel laying the foundation for a direction, for example by questions to bring out the inability of the witnesses adequately to detail the time and surrounding circumstances of the events or to bring out the unavailability of (for example) the other occupants of the house to which the complainant said he ran naked. The Crown submitted that it should be inferred that, in truth, the appellant was not hampered in his defence by the delay, and that a direction of the kind now in question was not called for.
43 The delay was twenty years and more. It was not suggested in cross-examination, or so far as appears from the summing-up in addresses to the jury, that there was collusion between the complainant, Dean and Brett. The appellant's challenge to the complainant's evidence was quite bluntly that the sexual activities had not taken place. It is, with respect, unfortunate that the Crown Prosecutor did not at least raise with the trial judge whether a direction in relation to delay should be given, even if the appellant's counsel did not raise that matter. Any need, or desirability, for a direction could have been brought out and considered, even if in the result the appellant's counsel considered that in the appellant's best interests the direction should not be given.
44 I can not see a satisfactory reason why, in the present case, the appellant's counsel would have deliberately chosen to put aside as a matter which might assist the appellant difficulties occasioned by delay in testing the evidence in the Crown case or adducing evidence in defence. I can only conclude that, regrettably, the matter was overlooked not only by counsel for the appellant but also by the Crown Prosecutor, and that both failed to raise with the trial judge whether the directions should include a comment or a warning of the kind indicated in Longman v The Queen.
45 As is apparent, I do not accept all the matters said by the appellant to constitute disadvantages in the conduct of his defence by reason of delay. The Crown submitted that difficulties to the defence would have been obvious to the jury and did not need to be pointed out, and that there were the directions to scrutinise the evidence of the complainant with great care and look at the evidence of the previously youthful witnesses with care and caution. I do not find it so evident that the difficulties to the defence would have been obvious to the jury, and the point of the direction is to ensure that the jury are aware and take account of any difficulties: so a direction to scrutinise with care and be cautious, without the further element identified in R v Johnston of why it is dangerous to convict, will not suffice. I do not reach my conclusion without doubts but, in my opinion, the circumstances in the present case were such that the direction should have been given. The trial miscarried.
46 The Crown submitted that, even so, there was no substantial miscarriage of justice. It was said that if a full and emphatic direction had been given the jury would most likely have regarded the difficulties occasioned to the defence as theoretical rather than actual, and that when the jury had been directed closely to scrutinise the complainant's evidence the further direction would most likely have caused them to focus on the strength of the Crown case, to the detriment of the appellant.
47 It was a fairly strong Crown case, but that is relative. It may not have been so strong if delay had not impeded the appellant in testing it and mounting his own case. That is why the direction should have been given, so that the jury could assess the strength of the Crown case after being reminded of something which may not have occurred to them without the direction. It was not a case of an inadequate comment or warning, but of no direction at all. In my opinion, notwithstanding that the appellant's then counsel did not seek the direction, leave should be given to rely on this ground of appeal, and it should not be concluded that no substantial miscarriage of justice has actually occurred.
48 It is unnecessary to address the sentences imposed on the appellant. I propose that the appeal be allowed, the convictions and sentences be quashed, and a new trial be ordered.
49 HOWIE J: I have had the benefit of considering the judgment of Giles JA in draft. I gratefully adopt his summary of the evidence and issues raised at the trial and his review of the relevant authorities applying to the ground of appeal raised. Had it not been for the decision in Doggett v The Queen (2001) 75 ALJR 1290, I would have favoured the dismissal of the appeal. However, I cannot distinguish the facts in the present case from those before the High Court in a way which would justify a different result than that determined by the majority of that Court.
50 It is clear that, according to the view of the majority in Doggett, the trial judge's warnings to the jury were defective because his Honour did not bring to the attention of the jury the forensic disadvantages to the appellant brought about by the delay in complaint. The authority of the High Court compels a finding that this is a matter which the jury were incapable of fully appreciating without guidance by the trial judge, notwithstanding a delay between the alleged offence and trial of almost 23 years and the manifest obstacles which such a delay must place in the way of any accused person seeking to defend himself.
51 I am unconvinced that the specific matters now raised by counsel for the appellant and set out in the judgment of Giles JA have really the significance now being attributed to them or that they even occurred to defence counsel at the trial. Certainly, I am not persuaded that had they been raised with the jury the result of the trial would have been any different. Defence counsel took a tactical position, which was open to him, of avoiding the issue as to why the complainant delayed or the consequences of that delay apart from its affect upon the reliability of the evidence of the complainant and the other Crown witnesses. For this reason counsel objected to a question by the Crown of the complainant as to the reasons for the delay in complaint. As a result of defence counsel indicating that he was not going to criticise the complainant for the failure to promptly complain about the appellant's conduct, the objection was upheld.
52 However, as I pointed out in R v Roddom [2001] NSWCCA 168, the reasons for the delay in complaint are irrelevant to a consideration of the effect of the delay upon the ability of the accused to defend himself. The trial judge is not necessarily relieved from giving directions as to the possible disadvantages to the accused caused by delay both in his ability to test the evidence of the Crown witnesses and in leading positive evidence to rebut the prosecution case simply because such a matter is not relied upon by defence counsel: R v Johnson (1998) 45 NSWLR 362 at 375. The trial judge has an overriding duty to ensure a fair trial to the accused. However, the trial judge is not to be required to take the position, often adopted by counsel on an appeal, of trawling through the evidence to find every conceivable aspect of the prosecution case which might have been the subject of investigation or rebuttal had there been no delay of any sort whatsoever. Disadvantages of real significance will be best appreciated by trial counsel and should be raised with the trial judge prior to the summing up: R v King [2000] NSWCCA 507 at [74].
53 I acknowledge that there is a difference in focus between a warning, such as was given in the present case, as to the danger of acting upon the complainant's evidence because of the potential unreliability of that evidence and a warning as to the danger of acting upon that evidence because of the effect of the delay upon the ability of the accused to defend himself. But where a warning of the former category has been given and where there was no particular disadvantage occasioned to the accused identified which would not have been apparent to the jury, then, absent the authority of Doggett, I would not have found that the lack of the latter warning necessarily resulted in a miscarriage of justice.
54 The real question that has exercised my mind is whether the appellant should have leave under rule 4 of the Criminal Appeal Rules to rely upon the failure to give a Longman warning in the absence of any request by counsel at the trial for such a warning. I note that there was no provision similar to rule 4 which applied in Queensland and, therefore, had to be considered by the High Court in Doggett, see Kirby J at [147]. However, as Giles JA indicates, it is difficult to see any forensic advantage in the decision not to seek a warning as to the effect of delay. A request for such a warning would not have been inconsistent with what counsel had said at the time the objection was taken to the Crown's question of the complainant as to the reasons for the delay in complaint.
55 I accept that generally speaking an accused should not have to bear the consequences of the failure of counsel at trial to seek a warning or direction from the trial judge which would be to the benefit of the accused. But unless there is a possibility of a miscarriage of justice arising from the failure of counsel to seek the warning or direction, then leave will not generally be granted to rely upon the point on appeal. This, in my opinion, is the difference in the approach to be taken where an appellant relies upon a ground of appeal as of right and where the appellant needs the leave of the court to argue the ground by reason of rule 4; see Clarke (1995) 78 A Crim R 226. Where leave is required, the appellant needs to show that there is at least the possibility of a miscarriage of justice arising from the failure to take the point; where the appellant has a right to rely upon the point, the Crown must prove that no substantial miscarriage of justice has in fact occurred before the proviso under s 6 of the Criminal Appeal Act can be applied.
56 But just as there appears to be a disinclination in appellate courts to rely upon the proviso in relation to an important ingredient of the law applicable to the trial, see Whittaker (1993) 68 A Crim R 476 at 488, so the Court should hesitate to apply rule 4 in relation to a warning which is considered by the High Court to be fundamental to the summing up of a trial of the nature of that in the present case. This might be viewed as a somewhat formalistic approach in that the warning is held to be necessary regardless of the attitude taken by the parties at the trial or the substantial issues litigated before the jury. But in the present case, it cannot be gainsaid that the appellant may have suffered some detriment by the extensive delay before prosecution, even if that detriment cannot be defined with precision. If that be the case, then applying present and binding authority it must be taken that there was a possibility of a miscarriage of justice notwithstanding that it was a very strong Crown case or my firm belief that the overwhelming probabilities are that the giving of the warning would not have made the slightest difference to the jury's assessment of the evidence presented to them.
57 This is yet another case where a conviction must be quashed substantially because of the failure of counsel at the trial to fulfil their duty to the trial court. Whether or not defence counsel had any reason for failing to request a Longman warning is not apparent from the material presented to this Court. But certainly the experienced Crown Prosecutor could have no reasonable excuse for failing to draw the trial judge's attention to the need to at least consider whether such a warning should be given and what its content should be.
58 Therefore, I agree with the orders proposed by Giles JA for the reasons given by him.
59 CARRUTHERS AJ: I have had the benefit of reading the judgments of Giles JA and Howie J in draft form. I agree that the appeal must be upheld, the convictions quashed and a new trial ordered. I form this opinion on the sole ground which was in my view available to the appellant, namely, that the jury did not have the benefit of a direction in accordance with the judgments of the High Court in Longman v The Queen (1989) 168 CLR 79, albeit there was ample evidence supportive of the complainant's testimony, but see Doggett v The Queen (2001) 75 ALJR 1290.