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[2003] SASC 420
Supreme Court of SA
2003-12-18
Besanko J, Bleby J
Original judgment source is linked above.
Court of Criminal Appeal: Bleby, Besanko and Sulan JJ
1 BLEBY J: On 27 October 2003, for reasons to be published, we unanimously ordered that this appeal be allowed, the convictions set aside and that there be a retrial.
2 I agree with Besanko J, and for the reasons that he gives, that a full Longman warning was not required in this case in respect of the charged acts. I also agree with what Besanko J has said about the uncharged acts. On the authorities, a Longman warning was required before the jury could find those acts proved. Not only was there a long delay in their being reported, but they were vague as to time and circumstance. I make no comment on their admissibility, as it was not argued before us. However, the failure to give a Longman warning in respect of the uncharged acts was sufficient to justify allowing the appeal.
3 I find it difficult to accept, and I do not think that the cases require, that the giving of a Longman warning is governed solely by delay in reporting the relevant events. In some cases, the delay alone and the prejudice created by it will be self-evident such as to require the warning. In other cases the delay may not be unreasonably long but the circumstances or possible period in which the incident is alleged to have occurred or both may be such as still to require a Longman warning. There will be yet other circumstances of moderate delay where events can be pinpointed with some accuracy and there is no apparent prejudice to the accused. A Longman warning may then not be necessary.
4 On the other hand, while what is commonly described as a Longman warning may not be necessary, a warning beyond a requirement to scrutinize uncorroborated evidence carefully merely because it is uncorroborated may be necessary. The warning, while not necessarily requiring the full force of the Longman warning, will need to be tailored to suit the circumstances of the case and the reasons why a complainant's evidence should be scrutinized before acting on it.
5 Inevitably, there will be areas of grey, and some latitude must be afforded to the assessment of the trial Judge of the degree of prejudice or disadvantage (if any) to which the accused may be subject in the particular case.
6 This case was argued solely on the lack of a Longman warning. No submissions were put in the alternative as to any other defects in the summing up such as to require something more than was given, but something short of a Longman warning. In those circumstances I hesitate to express any view as to what should have been said by the trial Judge over and above what he did say. It is sufficient to say that, while a Longman warning was not required for the charged acts, something more should, in my view, have been said in drawing attention to other reasons why the complainant's evidence should be scrutinized with care, with particular reference to the effect of delay on the accused.
7 BESANKO J: The appellant was charged on Information with three counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 ("CLCA"). That section makes it an offence to have sexual intercourse with a person of or above the age of twelve years and under the age of seventeen years.
8 There was one complainant in relation to the three counts and she was born on 12 January 1987. In the first count it was alleged that the appellant inserted his finger into the complainant's vagina between 1 August 1999 and 30 October 1999. In the second count it was alleged that the appellant performed the act of cunnilingus on the complainant between 1 August 1999 and 30 October 1999. Both the offences were alleged to have taken place at Seaton in South Australia. In the third count it was alleged that the appellant inserted his finger in the complainant's vagina between 1 October 1999 and 18 November 2001 at Paralowie in the said State.
9 After a trial by jury before a Judge of the District Court, the appellant was convicted on all three counts.
10 The appellant appeals to this Court. He submits that the Judge erred in that he failed to give the necessary directions to the jury. He submits that by reason of the delay between the charged acts and the complaint by the complainant, the Judge should have given the jury a Longman warning (Longman v R [1989] HCA 60; (1989) 168 CLR 79). He further submits that a Longman warning should have been given to the jury in relation to uncharged acts of sexual misconduct by the appellant which were relied on by the prosecution as part of its case.
11 The appellant is the complainant's uncle and he is about 10 years older than her. The complainant's mother, who I will refer to as T, is one of the appellant's sisters. T has six children, four girls and two boys. The complainant is the eldest girl. A, who is the father of the complainant's two brothers, lived with T and her children between 1993 and 1999. T was the first witness called by the prosecution.
12 T explained where she and her family were living between 1991 and 2001. In 1990 or 1991, T and her children were living in a house in Cambridge Street, Athol Park. The appellant came to the house from time to time. In February 1994, T, A and the children moved from the house in Cambridge Street, Athol Park, to a house in Cook Street, Parafield Gardens. They lived in that house until September 1998. During that period of over four years the appellant often stayed in the house. He slept in the lounge room. T gave evidence that when the appellant came to stay he brought his clothes in a dark brown suitcase. T said that the appellant seemed to get on well with her children. T said that the appellant was not employed and that he would spend much of his time sleeping and playing computer games. He went to bed very late and rose late in the morning.
13 In September 1998, T and her children moved into a house in Beckett Street, Parafield Gardens. Between September 1998 and September 1999 the appellant stayed with T, A and the children for almost all of that period.
14 In about September 1999, T, A and the children moved into the house of another sister of T and the appellant, who I will call D. The house was in Pedlar Street, Seaton. The recollection of the various witnesses as to how long T, A and the children stayed at D's house varied. T said it was for a period of six or seven weeks, whereas the complainant said that it was for a period of about three weeks. The differences were not a material issue at the trial. D and her family were also living in the house. The appellant came and stayed at D's house for some weeks. Again, the recollection of the various witnesses varied as to how long the appellant stayed, but again, the differences were not a material issue at the trial. The appellant sometimes slept in the lounge room. His activities and routine were similar to what I have previously described. During the period T and her family were staying with D, there were thirteen people living in the house. There were three bedrooms in the house. The prosecution case was that the first two offences occurred at D's house. T said that while staying at D's house the appellant kept his clothing in the dark brown suitcase previously mentioned.
15 On leaving D's house, T, A, the children and the appellant moved to a house in Martins Road, Paralowie. A left the house on 30 December 1999 and the appellant left the house some time in 2001. There were different accounts as to precisely when he left the house. The complainant and one of her sisters slept together in a bedroom. The appellant slept mainly in the lounge room. The prosecution case was that the third offence occurred in the house in Martins Road, Paralowie.
16 The complainant was the main witness for the prosecution. I will describe the events in the order in which she related them in her evidence. She said that while staying at D's house she slept "all over the place". The appellant usually slept in the lounge room. The act which is the subject of the second charge occurred one evening when she and one of D's children were asleep in the lounge room. The other child did not wake up during the incident. The rest of the house was quiet, although the television was still on in another room. The complainant thought the incident occurred between 12:00 midnight and 2:00AM and that she was asleep immediately before the incident. The appellant entered the room in which she was sleeping. He pulled down her pants and knickers and then commenced licking her vagina.
17 After describing this incident, the complainant was asked about other acts of sexual misconduct by the appellant which were not the subject of the charges ("uncharged acts"). The first uncharged act occurred when the complainant was three or four years old and the family were staying at the house in Cambridge Street, Athol Park. The complainant said that in the presence of one of her sisters the appellant performed an act of cunnilingus on her and forced her hands onto his penis. He did similar things to her sister. The complainant also described an incident which occurred while she was staying in the house in Cook Street, Parafield Gardens between 1994 and 1998 (probably towards the end of that period) when the appellant touched her in an inappropriate manner. T, A and her sisters were outside the house at the time of the incident. The complainant said that she felt awkward and embarrassed and that she was too scared to tell T or A. The complainant later said that as she became older she knew what the appellant was doing to her was wrong, but she planned on never telling anyone.
18 The complainant also said that the appellant had pornographic movies which he kept in the dark brown suitcase. She watched the movies with him. She said that the appellant masturbated while watching the movies. The complainant also said that the appellant had access to the internet while he was staying at D's house and that he had shown her pornographic images on the internet.
19 The complainant described further uncharged acts between September 1998 and September 1999 while she lived in the house in Beckett Street, Parafield Gardens. She remembered one incident in particular when the appellant entered her bedroom and performed the act of cunnilingus on her while masturbating.
20 The complainant then described the incident the subject of the first charge. It occurred during the period she and her family were staying at D's house. She was sleeping in a bedroom by herself. Everyone else in the house other than the appellant was asleep. The appellant entered the room and inserted his finger into her vagina.
21 The complainant said that between October 1999 and November 2001 when she and her family were staying in the house in Martins Road, Paralowie, the appellant touched her inappropriately on more than one occasion. She could remember one occasion in particular. This incident is the subject of the third charge. She was asleep in a bedroom with one of her sisters. The appellant entered the room. He inserted his finger into her vagina and attempted sexual intercourse. The complainant thought her sister was asleep at the time. While the appellant was trying to insert his penis into the complainant's vagina he said, "I love you" and "How does my big dick feel".
22 The complainant said that there came a time during the period that she and her mother and siblings were living in the house in Martins Road, Paralowie, that the appellant was told that he was no longer welcome. She thought that that was in November 2001. It was at about this time that the complainant told her mother about the appellant's conduct.
23 The appellant gave evidence. He denied the three charges and said the incidents described by the complainant did not take place. He also denied that any of the uncharged acts took place. He said that he did not have any pornographic videos and that he did not take the dark brown suitcase with him when he went to stay with T and her children. He said that he left Martins Road, Paralowie, in February 2001, and that he did not have access to the internet before May 2001 when he purchased a computer.
24 The appellant called two witnesses. His sister D gave evidence that during the period when T, A and the children were staying with her (which she said was a period of ten to twelve weeks), the appellant slept in a bedroom with two of her sons. On occasions some of the children slept in the lounge room. D said that the appellant lived with her between February and November 2001. She also said that the appellant purchased a computer in May 2001. The appellant's mother gave evidence that she and her husband stayed with another of the appellant's sisters (ie., not T or D) on a number of occasions during 1999 and on each occasion she noticed that the appellant's dark brown suitcase was at those premises.
25 The complainant first complained to her mother in November 2001 and a complaint was made to police on 27 November 2001.
26 I will refer to those directions relevant to the issues on the appeal.
27 Section 34I(6a) of the Evidence Act 1929 (SA) ("Evidence Act") provides as follows:
(6a) If, in proceedings in which a person is charged with a sexual offence, any information is presented to the jury, or suggestion made in the presence of the jury, that the alleged victim failed to make a complaint, or delayed in making a complaint, about the alleged offence, the judge must -
(a) warn the jury that the alleged victim's failure to make a complaint, or delay in making a complaint, does not necessarily mean the allegation is false; and
(b) inform the jury that the victim of a sexual offence could have valid reasons for failing to make a complaint or for delaying in making a complaint."
28 In accordance with the above subsection, the Judge warned the jury that the failure by the complainant to make a complaint did not necessarily mean that the allegations she made were false and he told the jury that the victim of a sexual offence may have valid reasons for failing to make a complaint. The Judge reminded the jury of the complainant's evidence of why she did not complain about the appellant's conduct.
29 The Judge summarised the evidence concerning the uncharged acts. The Judge told the jury that before using this evidence they needed to be satisfied beyond reasonable doubt that what the complainant had said was correct. The Judge told the jury that if so satisfied then they could only use the evidence as "setting the background or context in which the offences with which the accused has been charged are alleged to have occurred, and as evidence of a sexual attraction of the accused towards [the complainant]". The Judge made it clear to the jury that the evidence could not be used to establish propensity.
30 The Judge then moved to the charged acts and he told the jury that there was no evidence which corroborated C's evidence. He said that there was nothing unusual about that as the alleged conduct was not conduct which usually occurred in the presence of other people. After referring to the absence of corroboration, the Judge said:
"In those circumstances, you should scrutinise her evidence very carefully and only act upon it alone if you are satisfied beyond reasonable doubt that it is reliable in all its material aspects. It is not simply a case of preferring her evidence to that of the accused. It is not a case of preferring the evidence of one as against the evidence of the other. In order to convict the accused of any of the charges against him, you will have to be satisfied beyond reasonable doubt that [the complainant's] evidence in relation to the particular charge under consideration is correct in all its material aspects. There might be some minor inaccuracies in her evidence which do not cause you any concern at all. Of course, in considering her evidence, you will bear those inaccuracies in mind.
But, at the end of the day, you will not convict the accused of any of the charges against him unless you are satisfied beyond reasonable doubt that, on the particular charge under consideration, [the complainant's] evidence, in relation to that charge, is reliable in all its material aspects."
31 Other than what he said about the complainant's failure to complain, the Judge said nothing to the jury about the delay between the events giving rise to the first two charges and the complaint by the complainant or about the delay between the earliest of the uncharged acts and the complaint. The Judge did not give a Longman warning to the jury.
32 It should be noted at this point that after the prosecution had closed its case, the Judge raised with counsel the question of what directions should be given to the jury. Counsel for the appellant referred to the absence of a complaint and said that he did not think a warning was required. He said there should be a reference to the fact that there was no complaint and that that would serve as a caution. Counsel for the Director raised the question of whether a "full Longman warning" was required. Counsel for the appellant did not ask that a Longman warning be given.
33 The appellant submitted that the Judge should have given a Longman warning to the jury because of the delay between the dates of the charged acts and the date of the complaint by the complainant. The appellant also submitted that the Judge should have given a Longman warning to the jury because of the delay between the dates of the uncharged acts and the date of the complaint.
34 Section 34I(5) of the Evidence Act provides as follows:
"(5) In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence."
35 In Longman, the High Court considered the effect of s 36BE(1) of the Evidence Act 1906 (WA) in relation to the facts of that case. That subsection was in similar although not identical terms to s 34I(5) of the Evidence Act. In Longman the applicant was charged with various sexual offences. The delay between the alleged events and the complaint was over 20 years. Brennan, Dawson and Toohey JJ referred (at 86) to the general law which requires a warning to be given to the jury whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. Their Honours said that a question arises in every case of whether a warning is required that it is unsafe to convict on the uncorroborated evidence of the complainant not by reason of that person being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. The factors identified by their Honours were the delay in prosecution, the nature of the allegations, the age of the complainant at the relevant time, the alleged awakening of a sleeping child by indecent acts and the absence of complaint to the applicant or the complainant's mother. Their Honours said that any comment must be fairly balanced. Their Honours identified a number of factors in the case which meant that it may well have been appropriate for the Judge to make a comment reminding the jury of the relevance of those factors to the evaluation of the evidence. Their Honours then referred to one factor which required the Judge to go further than a comment and give a warning to the jury. That factor is the accused's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. The relevant passage in the reasons is as follows (at 90 - 91):
"There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s 36BD requires) that there may be 'good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence'. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court (NSW)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the defendant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."
36 Deane J agreed that in some circumstances a warning of the type identified by Brennan, Dawson and Toohey JJ will be necessary. Such circumstances existed in the case before the Court because the case was an unusual one "involving a prosecution for non-violent 'touching' offences within a family more than twenty years after their alleged occurrence" (at 101).
37 McHugh J also agreed that in some circumstances a warning will be necessary. His Honour identified the matters in the case which meant that a form of warning was necessary in the following passage (at 108 - 109):
"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. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be.
...
To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.
Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge."
38 In Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 the appellant was charged with various sexual offences. The delay between the alleged events and the complaint was about 19 years. There were a number of issues in the case including an issue as to whether a Longman warning should have been given to the jury. I think it is clear from the context that their Honours' reference to a Longman direction includes a reference to what I have been calling a Longman warning. Gleeson CJ held that a Longman direction should have been given. Gaudron, Gummow and Callinan JJ set out the passage from the reasons of Brennan, Dawson and Toohey JJ in Longman that I have set out above. Their Honours then said (at 180):
"The passage distinguishes between two different sets of circumstances: those which might well invite, and, we would interpolate, will generally require, comment; and those in respect of which a warning is imperative."
39 After setting out passages from the reasons of Deane and McHugh JJ respectively in Longman, their Honours said (at 180 - 181):
"There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result."
After observing that the Judge's direction in the case before them was less than what Longman required their Honours said (at 181 - 182):
"The trial judge should have instructed the jury that the defendant 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. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion."
McHugh J agreed with Gaudron, Gummow and Callinan JJ that the facts of the case called for a Longman direction. Kirby J also agreed that a Longman direction should have been given. He said (at 207 - 208):
"The law on this subject is stated in Longman. It has been repeated in a number of decisions involving delays very much shorter than that in the present case. It is important to note the distinction made by the majority in Longman between comment (which a trial judge may and sometimes should give to ensure the fairness of the trial) and a warning (which in circumstances of 'long delay' it is 'imperative', in the sense of obligatory, that the trial judge must give to the jury)."
A little later he said (at 209):
"The warning required by Longman must be, in the words of the joint reasons in this case, 'unmistakable and firm'. It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after twenty years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, twenty years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant."
Hayne J agreed that a Longman direction was required. He said (at 211 - 212):
"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."
40 In Doggett v The Queen (2001) 208 CLR 343 the appellant was charged with various sexual offences. The delay between the first alleged offence and the charge was over 18 years. In addition to the evidence of the complainant, the prosecution relied on the contents of a telephone conversation between the appellant and the complainant. The issue in the case was whether, notwithstanding the corroborative evidence, the Judge should have given a Longman direction. Gaudron, Kirby and Callinan JJ held that such a warning should have been given. Gleeson CJ and McHugh JJ dissented.
41 Gaudron and Callinan JJ identified a number of reasons why a Longman direction was required in that case. First, the complainant's evidence was questionable. Secondy, the suggested explanations for the complainant's assertions as to the approximate times of the first two offences was not very likely. Thirdly, there was evidence from an independent witness which contradicted the complainant's evidence. Fourthly, there had been a shift in the basis of the prosecution case. Fifthly, the difficulties with which Longman is intended to deal are not confined to difficulties of recollection but includes "the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble" (at 356). Sixthly, the corroboration did not necessarily establish the criminal conduct alleged in the counts. Seventhly, the correct approach was to examine whether the particular matters relevant to a Longman direction made such a direction necessary and "not to make a broad assessment of the evidence overall (including the corroborated evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary" (at 357).
42 Kirby J in separate reasons for judgment said (at 374 - 375):
"There were certain differences in the reasoning in Longman as to precisely why a warning was necessary, notwithstanding the statutory relief from the obligation to give the warning formerly required by the common law and judicial practice. Yet one common element informed both the joint reasons of Brennan, Dawson and Toohey JJ and the separate reasons of Deane J and McHugh J. This was a recognition of the serious forensic disadvantages suffered by an accused person in a criminal trial in meeting, for the first time, accusations made long after the subject offences were alleged to have occurred. In their separate reasons, Deane J and McHugh J added a reference to a second and related danger, namely the risk that, after such an interval of time, the memory even of an honest witness might become contaminated. A lengthy lapse of time could therefore make acceptance of a witness's testimony dangerous. It was such as to require particular scrutiny and the need for external confirmation of what the witness said."
"The criterion for the provision of a warning as stated in Longman is not mathematically precise. For example, in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary. However, the longer the delay, the clearer is the obligation to give the warning to the jury along the lines at least of that stated in the joint reasons in Longman. In an appropriate case, it would also be as well for the warning to contain reference to the additional consideration mentioned by Deane J and McHugh J in their separate reasons."
43 The circumstances in which a Longman warning is required were extensively analysed by the Court of Criminal Appeal of New South Wales in R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241. Sully J reviewed the three decisions of the High Court to which I have referred. He then formulated a series of propositions which he said emerged from those cases. Wood CJ at CL and Dowd J agreed with Sully J in relation to the following propositions (at 272, 274 - 275):
"[3] It seems to me to be a reasonable inference from what their Honours have said that all the current Justices of the High Court, excepting the Chief Justice and McHugh J, take the basic position that in any criminal trial a feature of which is substantial delay in complaint of alleged sexual offences then charged against the particular accused, a Longman direction must be given. Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Doggett;
...
(f) The initial trigger for any Longman direction is the passage of time between the alleged offence and first complaint. No doubt, and as Kirby J observes in Doggett (at 1309 [127]; 28 [127]), '[t]he criterion for the provision of a warning as stated in Longman is not mathematically precise'. His Honour goes on to say that 'in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary' (emphasis added). His Honour refers in a footnote to Crofts, where the delay between the first alleged offence and complaint was about six years, although there had been offences allegedly continuing until about six months before complaint; and Jones v The Queen (1997) 191 CLR 439, where there was a delay in the order of four years between offence and complaint.
On these particular points, Gaudron J, Gummow J, Hayne J and Callinan J in the judgments variously delivered by their Honours in Crampton and in Doggett, are not, I think, as precise as is Kirby J. I think, nevertheless, that the prudent inference to be drawn from what their Honours have variously said in Crampton and in Doggett is that they would support, at least generally, the propositions advanced by Kirby J.
It is, I think, clear enough that a delay in the order of 20 years would require, imperatively in the view of the current majority opinion in the High Court, a Longman direction, and a strong one at that. What is not clear is whether there is any, and if so what, time lapse that would be generally regarded by current majority opinion in the High Court as not calling for the giving of a Longman direction.
While that state of affairs continues, it seems to me that the only prudent approach of a trial judge is one that regards any delay between offence and complaint as sufficient to raise for consideration the need for a Longman direction. That consideration should concentrate upon two related factors, namely, the actual lapse of time involved in the particular case; and the actual risk of relevant forensic disadvantage in the particular case. It seems to me that, as matters stand, a trial judge would be well advised to give a Longman direction unless it is possible to conclude reasonably: first, that the particular time lapse is so small that any reasonable mind would regard it as, in context, trifling; and secondly, that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47), 'far-fetched or fanciful'."
44 I also refer to the discussion of these issues by Buddin J in R v GS [2003] NSWCCA 73. The remarks of Sully J in R v BWT are obiter dicta. There was a very substantial delay in that case, and there was no issue about whether a Longman warning was required. The issue was whether the warning given by the trial Judge was adequate.
45 The appellant submits that the jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than two 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.
46 In support of this submission, the appellant's counsel put the following propositions:
1. This Court should apply the obiter remarks of Sully J in R v BWT to the effect that a Longman warning should be given unless it is possible to conclude reasonably, first, that the particular lapse is so small that any reasonable mind would regard it as, in context, trifling and secondly, that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, far fetched or fanciful. On the facts in this case it is not possible to bring the case within the exception identified by Sully J.
2. Even if the Court rejects the first proposition, the delay here is substantial delay within the authorities, and therefore, a Longman warning should have been given.
3. It is not for the accused to prove actual prejudice and it would often be difficult to do so. It is enough that there is the possibility of a forensic disadvantage. Clearly, there was such a possibility here because, for example, there were a number of other people living in the house at the time of the alleged incidents which are the subject of the charges who may have been able to remember something helpful to the appellant had a timely complaint been made.
47 I reject the appellant's submission for the reasons which follow.
48 The starting point is that the warning is given to avoid a perceptible risk of miscarriage of justice. Whether there is such a risk depends upon the circumstances of the case. The warning involves telling the jury that the complainant's evidence could not be adequately tested after the passage of, in this case, over two years, and that it would be dangerous to convict the accused unless they carried out the process previously identified. The warning asserts a fact, namely, that the complainant's evidence cannot be adequately tested. In cases of substantial delay that fact is presumed to be correct irrespective of the particular evidence in the case. That is certainly so in cases of delay in the order of 20 years.
49 In cases of substantial delay it may be that it is appropriate to analyse the reason for the warning in the way in which Wood CJ at CL did in R v BTW when he said (at 247):
"Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant's evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way."
50 In this context, I note that in R v T [1999] SASC 242; (1999) 74 SASR 486 the delay between the alleged incident and the complaint was in the order of eight years. Mullighan J cited the passage from Longman dealing with the warning. He said (at 499):
"It was suggested in argument that a direction along these lines was not necessary unless there was some evidence of prejudice to the appellant by reason of the delay. I do not think that is so. In most cases of substantial delay, the potential for prejudice will be obvious. In some cases it will be apparent that there has been no prejudice. I have in mind cases where sexual conduct is alleged on one occasion and despite the delay, that allegation may be adequately investigated the defence. However, in most cases, there will be prejudice. In cases such as the present, where it is alleged that there have been many incidents of such conduct over a substantial period of time and a long time ago, the possibility of prejudice will be obvious without evidence to that effect and the trial judge should direct the jury accordingly."
51 Whether the analysis of Wood CJ at CL is correct or not, it is clear from the authorities that the Longman warning must be given in circumstances where there is substantial delay. It is also clear from the authorities that a warning has been required in cases where the delay is significantly less than 20 years. It seems that a delay of five to six years may be substantial delay (R v K [1997] SASC 6193; (1997) 68 SASR 405; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161) and in Jones v The Queen (1997) 191 CLR 439 Brennan CJ (at 445-446) expressed the view that a Longman warning was required in a case involving a delay of approximately four years.
52 There is no authority which requires this Court to hold that a period of two years is a period of substantial delay thereby necessitating a Longman warning. I would not reach such a conclusion because I do not think it should be assumed, without regard to the circumstances of the case, that the evidence of the complainant cannot be adequately tested after two years. I would respectfully decline to follow the obiter remarks of Sully J.
53 A warning may be required because of the particular circumstances of the case. I do not think it is necessary for the accused to show that he is under a forensic disadvantage. In my opinion, it is sufficient if there is a basis in the evidence for thinking that the accused may be under a forensic disadvantage. In this case, I do not think there is a basis in the evidence for thinking that the appellant might be under a forensic disadvantage. The time, place and circumstances surrounding the three charged acts, and in particular, the first two charged acts, were identified in the evidence with reasonable particularity. The appellant was able to call evidence to rebut some aspects of the complainant's account. His mother gave evidence that in 1999 she saw the appellant's dark brown suitcase at another sister's home (ie., not T or D) and his sister D gave evidence that the appellant did not purchase a computer until May 2001 after he had left the house in Martins Road, Paralowie. In addition to these matters, it may be noted that counsel for the appellant at trial did not claim that he had suffered any forensic disadvantage by reason of the delay.
54 The Judge was not required to give a Longman warning in relation to the charged acts.
55 Delay between charged acts and complaint may not be such as to call for a Longman warning, but may be such as to call for a comment by the Judge if all or some of the factors identified by Brennan, Dawson and Toohey JJ in Longman are present. It was not submitted in this case that the Judge erred in failing to comment on the delay and, its possible effect on the jury's approach to the evidence to a greater extent than he did. With respect, there is much to be said for the view that the Judge might have said more about the delay and how it might have affected the complainant's credibility. Of course, any comment must be fairly balanced. The complainant's explanation for the delay was that as she got older she knew what the appellant was doing was wrong and she had decided that she would not tell anyone. There was no explanation as to how it came about that the complainant told her mother of the incidents in November 2001. In view of the way in which the appeal was argued and my conclusion on the submissions put by the appellant, it is not appropriate or necessary for me to consider this point any further.
56 I turn now to consider the appellant's submission that the delay in relation to the uncharged acts was such that a Longman warning should have been given. The delay between the first of the uncharged acts and the complaint was in the order of 10 years. The first of the uncharged acts occurred when the complainant was three or four years old. A period of 10 years is a period of substantial delay and if the acts were the subject of charges a Longman warning would be required. This conclusion is reinforced by the fact that the allegations of the circumstances surrounding the acts were vague and imprecise.
57 The Court was not referred to any authority dealing with the question of whether substantial delay between uncharged acts relied on by the prosecution and the making of a complaint gave rise to the need for a Longman warning. I note that in Allegretta v R [2003] WASCA 17 the Western Australia Court of Criminal Appeal relied on the generalised nature of uncharged unlawful sexual acts as one reason for concluding that a Longman warning was required in the circumstances of that case. Roberts-Smith J (with whom Malcolm CJ and McKechnie J agreed) said (at para 105):
"That is because the delay here (in the order of five years) and the circumstances otherwise - including the generalised nature of the uncharged unlawful sexual acts and the lack of corroboration - in my view clearly did call for a Longman direction which warned the jury of the danger of convicting on the complainant's evidence alone not only because of the difficulties of recollection thereby presented to the applicant, but because of the denial to the applicant of the forensic weapons that a reasonably contemporaneous complaint would have provided. What was said in this regard by the learned trial Judge fell significantly short of such a warning."
58 In relation to uncharged acts there are always two questions, namely, what is the level of proof required and to what use (if proved) the evidence of uncharged acts may be put. The Judge directed the jury that before making any use of the uncharged acts, they must be satisfied beyond reasonable doubt that they occurred. That seems to be the correct direction, at least where they are being relied upon to establish a sexual attraction on the part of the appellant towards the complainant (R v Nieterink (1999) 76 SASR 56 per Doyle CJ at 72 - 73). The Judge gave such a direction in this case. However, in the context of proof the Judge made no reference to delay. In relation to the second step, the Judge told the jury that they may not use the uncharged acts as evidence of propensity. The jury were told that they may use the uncharged acts to establish sexual attraction by the appellant towards the complainant. They were not told of any other possible specific uses of the uncharged acts other than that the evidence could be used as "setting the background or context in which the offences with which the accused has been charged are alleged to have occurred". That particular direction was probably deficient (R v Nieterink per Doyle CJ at 73). In R v Nieterink, Doyle CJ identified a number of uses to which the evidence of the uncharged acts in that case might be put. The Chief Justice said (at paragraph 76):
"Applying those principles to the present case, I conclude that the evidence of the uncharged acts was admissible, in brief, on a number of bases. First, it could explain how the first charged incident came about, because it showed what might be called a lead up to the first charged incident. It could also explain the lack of surprise on the part of R. It could explain the confidence that the appellant might have had in repeating his conduct when committing each of the alleged offences. The submission of R to him over a period of time would give him confidence that she would submit again. It might help to explain the fact that R did not complain to her mother. The evidence could also establish a sexual attraction by the appellant towards R."
59 The facts of this case were such that the jury may have used the uncharged acts in any one or more of the ways identified in the above passage. To use the evidence in any of those ways is to use it in a manner adverse to the appellant. The forensic disadvantages to an accused identified in Longman, Crampton and Doggett arise in the case of the uncharged acts. I think the Judge should have given the jury a suitable direction about the delay because it was a substantial period of delay, the uncharged acts needed to be proved beyond reasonable doubt and the uncharged acts could be used by the jury in a manner adverse to the appellant. The fact that the evidence of the uncharged acts could not be used to establish propensity does not obviate the need for a suitable direction.
60 I have said the Judge should have given the jury a suitable direction. I do not think that in the case of uncharged acts the Judge must necessarily frame the direction in terms of "dangerous to convict". On the other hand, the direction should be in clear and unmistakable terms and it should refer to the delay and the fact that after a period of (taking the first of the uncharged acts as an example) ten years, the evidence of the complainant in relation to the first incident could not be adequately tested. Reference should be made to any other relevant factors such as (again taking the first uncharged act as an example) the very young age of the complainant at the relevant time. The jury should be told that it would be dangerous to find the relevant uncharged acts proved unless the jury, scrutinising the evidence with respect to those acts with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.
61 The Judge did not give such a direction in this case. I think that his failure to do so constituted an error of law. I do not think that it can be said that the jury would have convicted in any event. The prosecution case rested on the uncorroborated evidence of the complainant. The appellant has lost a chance of an acquittal reasonably open to him.
62 The appeal should be allowed and the convictions set aside. I would direct a retrial on the charges in the Information.
63 SULAN J: The appellant was convicted of three counts of unlawful sexual intercourse. The first two counts took place between 1 August 1999 and 30 October 1999. The third count occurred between 1 October 1999 and 18 November 2001. The appellant was convicted on 30 May 2003. He has appealed against his convictions.
64 The appeal raises the issue of the extent to which a trial judge is required to warn the jury of the danger of convicting an accused without scrutinising the evidence of the complainant with care when there has been a delay between the alleged conduct and the complaint.
65 In Longman v The Queen[1], the High Court reaffirmed the principle that a warning is required whenever it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. (See Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315.)
66 The applicant, Longman, had been convicted of two counts of indecently interfering with a young girl under the age of fourteen. The conduct occurred some 26 years and some 22 years respectively before the trial. Longman was first interviewed after a complaint had been made some 25 years after the first alleged incident and 22 years after the second. He denied any indecent interference with the complainant. There was no independent corroborative evidence of the allegations.
67 Brennan, Dawson and Toohey JJ referred to a number of significant circumstances, including the delay in the prosecution, the nature of the allegations, the age of the complainant at the time of the events, the awakening of a sleeping child by indecent acts and the absence of complaint as being factors which would, in the usual course of events, call for a comment by the trial judge. The majority identified one factor of particular significance, being the applicant's loss of the means of testing the complainant's allegations as a consequence of the delay. The court observed that if the allegations had been made in a timely way, the applicant would have been able to explore the circumstances of the two occurrences in detail, and may possibly have been able to adduce evidence throwing doubt upon the complainant's story.
68 The court observed that "after more than 20 years, that opportunity was gone and the applicant's recollection of them (the occurrences) could not be adequately tested".[2] They concluded that the fairness of the trial had necessarily been impaired by the long delay. They further concluded that it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and, paying heed to the warning, was satisfied of its truth and accuracy.
69 Deane J, in his judgment, expressed the position as follows:
"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of facts. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury."[3]
70 He concluded that in the circumstances of an allegation of a non‑violent indecent touching within a family more than 20 years earlier, where the complainant was asleep and awoke during the act of touching, a specific warning was required. The jury should have been warned about the need to scrutinise the complainant's evidence with great caution before convicting the applicant on the complainant's evidence alone.
71 McHugh J referred to the statement of Gibbs CJ in Bromley v The Queen:
"What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence."[4]
He went on to observe:
"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. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, "I don't hate him but I do hate what he's done and the problems it's caused in my life". However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred.
To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony."[5]
72 McHugh J said that a strong warning to the jury of the potential for error in the complainant's testimony was required. The jury should have been warned that, in evaluating the complainant's evidence, they had to bear in mind those matters to which he had made specific reference. He concluded that each case should be considered on its merits and the decision of whether a warning or comment was required was very much a matter for the trial judge.
73 In Crampton v The Queen, the applicant was convicted of an act of indecency with another male.[6] The complaint was made some 19 years after the alleged offence was said to have occurred. Gaudron, Gummow and Callinan JJ considered the decision in Longman. They recognised that the majority in Longman distinguished between two sets of circumstances being those which generally require comment and those in respect of which a specific warning is imperative. If there is delay in making a complaint, and the delay is of such length as to lead to the conclusion that a defendant has lost the means of testing the complainant's allegations, then there should be a warning. The jury should be directed that it is dangerous to convict on the evidence of the complainant alone, unless the jury, having scrutinised the evidence with great care and having regard to the warning, is satisfied beyond reasonable doubt of the truth and accuracy of the evidence.
74 Kirby J referred to the distinction made by the majority in Longman between a comment which a trial judge may, and sometimes should give to ensure the fairness of the trial, and a warning which in circumstances of long delay, the trial judge must give to the jury.[7] He observed that the requirements of a warning derived from the extensive experience of the law. In circumstances of significant delay a defendant will have special difficulties in presenting a defence. Such difficulties include securing evidence and the prompt gathering of information with which to challenge and test the evidence of a complainant.[8] Kirby J observed that the passage of time, especially a lengthy period, may make it difficult or impossible to secure the necessary "forensic weapons" for an adequate defence.
"The critical feature of the circumstances I have described is that many years had elapsed between the time of the alleged conduct and the accused being put on notice of the allegation. That lapse of time inevitably meant that the accused was put at a significant disadvantage, of a kind and to an extent which a jury might not appreciate without proper direction."[9]
76 It follows that whenever the court is satisfied that a defendant has suffered a material forensic disadvantage, a warning in the terms referred to in Longman will be required.
77 Kirby J returned to consider Longman in Doggett v The Queen.[10] He observed that each of the judgments in Longman recognised that there was a serious forensic disadvantage suffered by a defendant in meeting, for the first time, accusations made long after the offences were alleged to have occurred. He explained the rationale for requiring a specific warning in cases where there has been a lengthy delay. He said:
"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 and arguments of counsel, would not, in such cases, be sufficient.
The criterion for the provision of a warning as stated in Longman is not mathematically precise. For example, in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary (81). However, the longer the delay, the clearer is the obligation to give the warning to the jury along the lines at least of that stated in the joint reasons in Longman. (82)"[11]
78 Kirby J discussed the mischief which was identified in Longman, that there was a serious forensic disadvantage involved in responding to accusations made many years after events. Kirby J observed that the existence of corroborative evidence did not necessarily relieve the trial judge of the requirement to give a Longman direction.
79 I agree with the observations of Mullighan J in R v T that, in most cases of substantial delay, the potential of prejudice to a defendant in the presentation of the defence will be obvious.[12] However, there are circumstances in which there might have been lengthy delay in the making of a complaint, yet the potential for prejudice is not so obvious. There may also be cases in which there has been a relatively short delay in the making of a complaint, and a defendant who denies being present at the time of the incident, or incidents, may be prejudiced because of an inability to recall in detail earlier movements. There may be identifiable prejudice. A defendant may wish to call a witness in whose company he was at the time, but that witness is no longer available. In such a case, a direction in accordance with the warning in Longman may well be required. In other circumstances a comment, short of a full Longman warning, would be sufficient.
80 In cases of a lengthy delay, the requirement to give a Longman warning becomes more compelling. All cases will turn on their particular facts. In any case where there is a time lapse of such length that it appears to the trial judge that it may affect the fairness of the trial then, at the very least, a comment may be required to ensure that the trial is fair. If the delay is such that it can be demonstrated that the accused has suffered a forensic disadvantage, then the trial judge is required to give a warning. The jury should be directed that it is dangerous to convict on the evidence of the complainant alone unless the jury, scrutinising the evidence with great care, and considering all the circumstances of the case, and paying heed to the warning, is satisfied of the truth and accuracy of the evidence of the complainant.
81 The facts of this case are recounted in the judgment of Besanko J. I refer to the facts only to the extent that is necessary to understand these reasons.
82 As to the first count, the complainant described an incident which occurred when she was asleep on a mattress on the floor in her cousin's room at Pedler Street, Seaton. She was awakened by the appellant. She could see the television was on in a room. Everyone was asleep. The incident, the subject of the second count, also took place at Seaton whilst the complainant was sleeping in a room with her cousin. She said that her cousin was asleep at the time. The appellant pulled her pants down and licked her vagina. She was awakened when the appellant was interfering with her. As to the third count, the complainant was vague about the time of the incident. Although she gave detailed evidence about the incident, there was a vagueness about some relevant matters. At the time that the incident occurred, the complainant's sister was asleep in the room. When the complainant awoke, her pants and knickers were down. The appellant was rubbing his penis against her vagina. He attempted to insert his penis into her vagina. The appellant spat on her vagina and tried to insert his finger.
83 The complainant alleged that, on the occasions of each incident, the appellant had in his possession a brown suitcase in which he kept pornographic videos which he showed to her from time to time. There was a suggestion by counsel for the appellant that her evidence about the brown suitcase and the videos was false. It was said that the brown suitcase was stored at the home of one of his sisters at the relevant times. Had the complaints about the accused's conduct been made in a timely fashion, then it would have been possible to call evidence to prove or refute the allegations that the appellant was in possession of pornographic videos. The ability to investigate that aspect of the case was lost. It may also have been possible for the appellant to call witnesses to give evidence supporting his account. Evidence from others in the house may have been relevant if the occasions could have been identified.
84 The period of delay in respect of each count was approximately two years or more. On each occasion the complainant was woken from her sleep. She was within a family situation and others were present in the house. The complainant was about fourteen years old. The complainant was vague about dates. This made the task of responding and cross-examining difficult. As a consequence of the lack of specific detail, it was difficult to test her evidence. On each occasion when it was alleged the incidents took place, there were a number of adults who were in the house. As a consequence of the lack of specificity of dates and the lapse of time, the appellant was deprived of the opportunity of testing whether the others in the house, at the time, were able to recall any significant detail. Further, given the circumstances that were described by the complainant of awakening to these acts occurring, there was a further opportunity of error, as alluded to by McHugh J in Crampton. There was also the unsatisfactory state of the evidence about the brown suitcase.
85 The trial judge drew the jury's attention to the fact that the prosecution case depended solely upon the evidence of the complainant. He directed the jury that they should scrutinise the complainant's evidence very carefully and only act upon it alone if they were satisfied beyond reasonable doubt that it was reliable in all its material respects. The trial judge gave a direction in accordance with the decision of this court in The Queen v Calides (1983) 34 SASR 355. He made no reference to the delay or any prejudice to the appellant consequent upon it. The trial judge should have warned the jury that, because of the difficulty resulting to the appellant consequent upon the delay between the acts alleged and the making of the complaint, that it would be dangerous to convict the accused unless, after scrutinising the complainant's evidence with great care and paying heed to the warning, the jury was satisfied beyond reasonable doubt of the truth and accuracy of the complainant's evidence.
86 The complainant was asked whether conduct of a similar kind had occurred on other occasions. She said that it had happened many times before. The first memory of it was when she was aged three or four.
87 The complainant described how she and her sister were sharing a room when the appellant came into the room and touched her all over her body. He pulled down her pants and put his head between her legs and started licking. He also put her hands around his penis. She said that she took her hands away. She said he also played with her sister.
88 The complainant described a further incident when the family was living at Cook Street. She was lying on a mattress watching television when the appellant lay down next to her, touched her in the area of her vagina, pulled her pants down and placed his penis between her legs.
89 She gave evidence of another incident when the family were living at Beckett Street, and the appellant came into her bedroom, pulled her pants down and performed an act of cunnilingus. He also masturbated.
90 The trial judge referred the jury to the evidence of the complainant about the uncharged acts. He directed them that they should scrutinise it with great care and only act upon it if they were satisfied beyond reasonable doubt that it was reliable in all its material aspects. I referred to the passage of the trial judge's summing up earlier in my reasons. That direction was given in the context of directing the jury that the case for the prosecution depended solely on the complainant's evidence. The trial judge made no reference to the lengthy delay between the earlier acts and the complaint.
91 The trial judge should have directed the jury that the allegations of sexual misconduct when the complainant was about four years of age should be scrutinised with great care. In considering that act and the other uncharged acts which occurred between 1991 and 1998, the jury should have been directed that, in the experience of the courts the recollection of people, especially young children, of events many years before should be scrutinised with great care. The direction should include a statement that, no matter how honestly a person giving evidence holds their views, people's memories of events so long in the past can be unreliable. The jury should have been directed that it is dangerous to rely on the evidence of the earlier uncharged acts, having regard to the delay between those acts and the complaint. The jury should have been told that, if the allegations had been made earlier it would have been possible to explore them in detail. The jury could rely on the evidence if, after heeding the warning and scrutinising the evidence, they were satisfied of its truth and accuracy.
92 For the reasons expressed, the appeal must be allowed and a retrial ordered.
[4] Ibid at 107 referring to Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 319.
# R
RWB No. SCCRM-03-144 \[2003\] SASC 420
(1989) 168 CLR 79
(2000) 206 CLR 161
(2001) 208 CLR 343
(2002) 54 NSWLR 241
(1997) 191 CLR 439
(1980) 146 CLR 40
(1999) 74 SASR 486
(1997) 68 SASR 405
(1999) 76 SASR 56
(1986) 161 CLR 315
(1983) 34 SASR 355
(2002) 208 CLR 343