R v SJB

• 19 - IN THE COURT OF CRIMINAL APPEAL 67010 of 2001

SHELLER JA LEVINE J SIMPSON J

(31 MAY 2002) REGINA v SJB Judgment 1 SHELLER JA: I agree with Levine J. 2 LEVINEJ: The appellant was indicted on 3 counts: the first and third counts were pursuant to s 61E of the Crimes Act, 1900 for indecent assault and act of indecency (maximum penalty 4 years imprisonment). The second count was for sexual intercourse without consent pursuant to s 61D (1) (maximum penalty 10 years imprisonment). The appellant stood trial before his Honour Judge Gibson QC and a jury in the Bega District Court on 19 and 20 September 2001. On the latter date he was found guilty. On 25 September 2001 he was sentenced in respect of counts 1 and 3 to a fixed term of 9 months imprisonment commencing on 20 September 2001 and in respect of count 2 to 18 months imprisonment with a non-parole period of 9 months commencing on the same date. 3 The appellant appeals only against his conviction.

Course of the trial and review of the evidence 4 By reason of the grounds of appeal and the important issues raised by them it is desirable to set out the evidence in some detail. The trial was, however, one of stark simplicity in its structure. 5 The complainant (born 16 February 1972) lived with her mother and the appellant in Braidwood together with her sister (R) and brother. She said that the appellant would look after them while her mother was at work. The house in which they resided had 3 bedrooms; her brother occupied one and she and her sister occupied another; her mother and the appellant occupied the third bedroom. She and her younger sister had separate single beds in their room. 6 It was the complainant's evidence that she recalled something happening between herself and the appellant later in the year after her birthday in 1983. She was 11 years of age at the time and went to bed at 8.30 pm. Her mother was at work that night. She said the appellant came into her room and said "Shh" and she asked, "what are you doing" and he said "be quiet, you'll wake R". She said he was touching her on the vagina outside her underpants. When R woke the appellant left the room. The lounge room light shone down the hallway to her bedroom and intruded if the door was open. She said that she was scared and cried herself to sleep. This evidence was in support of the first count in the indictment. 7 The complainant gave evidence also that there was another incident which happened about a month after the first. It was still in 1983, her mother was at work, she had gone to bed and so had her sister. On this occasion she was awake. She said she saw the appellant crawl into the room and kneel beside her bed. She told him to get out. She said he put his hands under the covers and she turned away. He held her legs down and put his hand in her underpants; she pushed him in the face trying to get him away; she said he then put his finger inside her vagina. She said that her voice was not very loud as she did not wish to wake her sister. She was crying. She gave evidence that she did not tell anyone in relation to this matter as she did not wish to upset her mother; she was young and just did not know what to do. This evidence was in support of the second count in the indictment. 8 The complainant said she turned 12 in 1984 and that something happened in the evening during the school term. Her mother could have been at work or playing basketball. She was in bed and R was also in bed. On this occasion the complainant was awake, the appellant came into her room and she started kicking and waving her arms so he hopefully wouldn't come near her; R awoke and the appellant left the room. 9 Another incident occurred in 1984. Her mother was at work. The complainant and R were in their beds. The appellant put his hands into her underpants but did not put his finger into the vagina on this occasion; his hand was around the front of the vagina. She said she heard the front door and her mother was home and the appellant left the room. The bedroom door was open and a little light came in. She felt ashamed. This was evidence in support of the third count in the indictment. 10 The complainant gave evidence-in-chief that she first told anyone about what had happened when she was 15 years of age. She was in Sydney visiting the theatre and was staying at the York Apartments sharing a room with a friend, Todd Sharples. The evidence she gave was: "Q. What did you say to him and what did he say to you, if anything? A. I can't recall exactly the conversation but I can remember we were staying in the same room and in separate, like single beds and I just remember waking crying and he came over to the bed and asked why I was crying and then I told him what had happened. Q. Well what did you say, it's best you can remember, I appreciate you say you can't remember the exact words but what words do you recall saying to him? A. I do remember telling him mum's ex boyfriend Steven used to come into my room, I don't know, lot's of times, I don't know how many times and put his finger inside my underpants". (emphasis added) 11 This evidence was admitted upon the grant of leave by the learned trial judge (see judgment 19 September 2001) pursuant to s 108(3)(b) Evidence Act, 1995. His Honour had regard to the provisions of s 192 of that Act and admitted the evidence as evidence of a prior consistent statement in the face of the position of the accused namely that the alleged events simply did not take place and the implication of a suggestion that the evidence had been "fabricated" or "reconstructed" whether deliberately or otherwise. 12 It is here appropriate to interpose the evidence given by Mr Sharples (in the Crown case in chief). What he said was: "Q. I want you to tell us what was said by you if anything and by [K] on that occasion? A. All right, well [K's] just said that [SB] used to come into her room and do things that he wasn't supposed to do. Q. What led up to that conversation, what was the lead up to it? A. We'd just come home, [K] was a bit upset and I said, "What's wrong?", and she said, "I want to tell you something", and that's what she told me". (Transcript p 55) 13 In cross-examination Mr Sharples said that nothing further was said either by himself or the complainant. 14 The complainant was 29 years of age when she gave her evidence. In relation to the incidents founding the separate charges in the indictment and her lack of complaint the explanation given was to the effect that she was ashamed, she felt scared, she "didn't know why I didn't say anything, I wish I had have"; she didn't want to upset her mum. 15 The complainant was not cross-examined at length. She was taken through her account of the respective incidents, the role that the appellant played in the household in looking after her and her siblings whilst her mother was at work or playing sport, and was questioned about the relationship that she enjoyed with her sister, her natural father her neighbours, friends and school teachers. That relationship with the various people referred to in cross-examination was close. She was cross-examined as to certain physical dimensions of the house. 16 She was not cross-examined as I read the evidence as to any reason for not raising these matters with her mother or anyone else. The cross-examination was merely limited to the fact that she enjoyed these close relationships with the classes of people to whom I have referred. She was asked after the leg-grabbing incident whether her mother was at home the next day and: "Q. You said nothing to your mother?

Q. And you were close to your mother? A. Yes. Q. And you were close to your sister? A. Yes." 17 She was also cross-examined in relation to the appellant having had a motor accident and it is clear that in her statement to the police which she in re-examination affirmed to have been true at the time she made it and believed to be true, she was in error in allocating the third incident in relation to that motor accident which in fact had occurred in 1982 and not 1984 (the year of the third incident). 18 It was put to the complainant that the appellant never came into her room and did what the complainant said he did to her. The complainant said "That is so wrong"; it was put "that it just, it didn't happen?" and the answer was "It did happen". 19 The complainant's mother gave evidence as to when it was that the appellant moved into her home at Batemans Bay and confirmed that the appellant looked after the children when she was not at home. At the relevant time, as I understand it, the complainant's mother was working night shift at a hotel and was still playing basketball and squash. The appellant left for England in 1985 and that was the end of their relationship. 20 Detective Senior Constable Clayton gave evidence of taking a statement form the complainant on 15 and 19 January 2001 and that the appellant declined to be interviewed by the police and was charged on 6 February. 21 That was the Crown case. 22 The appellant gave evidence on oath to the effect that he would look after the children including the complainant when the complainant's mother was at work or was playing sport. He denied that at any time whilst he was at the residence or anywhere else he ever crawled over to the complainant's bed and put his hand under her panties. He had never touched her in bed or anywhere else on the vagina and had never placed his finger in her vagina. He agreed in cross-examination that he considered himself in a good relationship with the complainant, she had never demonstrated to him that she had any grudge against him, he would from time to time check on the children in their bedrooms which he saw as part of his babysitting duties. He did not dispute that he was aware of the working hours of the complainant's mother. He denied the allegations when they were put to him by the Crown Prosecutor in cross-examination. 23 Thus it can be seen that the structure of the trial involved the complainant giving evidence of her allegations, there was evidence of the prior statement to Mr Sharples, there was no corroboration, and there was the denial on oath by the appellant. 24 The appellant appeals on 3 grounds and they are articulated as follows: (1) the verdicts are "unsafe and unsatisfactory"; (2) the convictions were founded on evidence which was unreliable; (3) the Judge erred in law in failing to give the jury a direction that it was "dangerous" or "unsafe" to convict on the evidence. 25 The appellant points to the inability of the complainant at the age of 29 to particularise the actual dates of the incidents except to the extent that they allegedly occurred some time after her eleventh birthday in respect of the first two allegations and after her twelfth birthday in respect of the third. 26 The complainant was "close" to her mother and lived, it is said, a normal child's life under the family roof. There was no impediment to the complainant complaining to her mother at the time of each of the three allegations. It is submitted that in relation to each of the alleged incidents that the complainant was awake and could afterwards have got up and told her mother (none of this was put to the complainant in cross-examination). Alternatively she could have told her mother the next morning but she did not do so for the reasons to which I have referred. The evidence, it is said, pointed to no complaint or the subject matter of the allegations ever having been raised with any of the people to whom she was close, particularly her girlfriends. The submission was made that it was not as though the complainant was "sheltered" from all the people with whom she was friendly including her natural father or that she was a "prisoner in her own home". It was submitted that it is "apparent from her evidence" that she was an outgoing type of person who got on well with everyone who was part of her life. In these circumstances it was submitted (in the written submissions) where there was absolutely no impediment to the complainant raising the allegations it is obligatory on the Judge to "comment" to the jury on the fact of such failure to complain and to convey to the jury the reasons for failing to complain. It is then acknowledged by the appellant that this in fact was done by his Honour. The appellant's submission in that context however is that the reasons advanced by the complainant appear to be directly in relation to what her mother would think but his Honour did not give any reasons and could not because there were none in respect of the fact that she did not tell any friends, relations, her father or even her teachers. 27 For myself this review of the submissions really points to a want of substance in any of them. In oral submissions the real complaint, as-it-were, was made in relation to the evidence extracted above from the complainant of the terms of what she said to Mr Sharples. No objection was taken to this evidence at the time it was given, no direction was sought from his Honour in relation to its terms, none was given, no leave was sought by the Crown to lead the evidence in these precise terms. The nub of the submission is that what the complainant said to her boyfriend amounted to "evidence of other sexual offences occurring"; that it may well have been misused by the jury on the basis that "if he has done it at other times then he must have done it in relation to the times the subject of the indictment" (see Reg v Greenham [1999] NSWCCA 8). It is complained that no direction was given (nor sought) along the lines of that given by Wood J (as he then was) in Reg v Wickham, NSWCCA 17 December 1991 at 4, where his Honour's direction, referred to in the judgment of the Court, emphasised that the jury must not substitute evidence of other acts for the specific acts charged and that the jury must not reason on that basis. 28 The following observations could be made: his Honour did not give a direction of the kind it is submitted should have been given; his Honour was not asked. No objection was taken at the time the evidence was given by either the complainant or Mr Sharples. As to the former it can well be understood that if the use of the impugned words made an impact on defence Counsel at trial, for sound tactical reasons no forensic fuss was made about them. Mr Sharples' evidence coincided to some extent with that of the complainant but not exactly and was unremarkable, in my opinion. 29 In his summing up to the jury his Honour did refer to this piece of evidence but omitted the impugned words. His Honour said: "She said she had been crying, she told him what had happened, she did not remember the exact things she said but she said "Mum's boyfriend Steven used to come into my room and put his finger under my underpants" and she was cross-examined" (summing up p22-23). I add that this was said after his Honour had given directions to the jury in relation to the "complaint" evidence to which I will come shortly. The omission of the subject words is at least neutral or favourable to the appellant. 30 Next, when the words are taken out of the transcript it has to be acknowledged that there could be some argument as to whether, viewed in strict isolation, those words go further than a complaint about the three incidents the subject of the indictment on the one hand or whether they amount to no more than a generalised reference to the three incidents and do not amount to evidence of other activity. This represents in my respectful view an artificial approach to these few words of testimony in the context of the whole of the trial absent any complaint at the time of their being uttered by the witness. Unfortunately this Court was unable to be assisted as to the kind of notice the defence had received as to the evidence the complainant would give or that of which Mr Sharples would give. Certainly it is clear from the record of the proceedings, and his Honour's judgment of 19 September 2001, that the issue of this evidence of "complaint" was raised and his Honour admitted it under s 108. It is unknown whether the defence had notice precisely of the terms in which the evidence would be given. For myself I suspect that that is unlikely; however it is simply unknown. No voir dire was sought. 31 Viewing this discrete point as to the words uttered by the complainant, I am not be persuaded in the absence of any objection taken that any failure on the part of the trial judge to give the specified direction bought about any miscarriage in the context of this trial as a whole or could safely found the broader proposition that the jury ought reasonably to have entertained a doubt on the whole of the evidence and the conviction of the appellant could not be sustained (M v The Queen (1994) 181 CLR 487 at 493-495). 32 To some extent this particular matter merges with the second component of the first ground of appeal which is to be understood as the wrongful admission of the evidence of the complaint in the first instance. It seems quite clear to me that this evidence, given the position taken by the appellant as an accused in his trial namely it did not happen, and the inference of fabrication whether deliberately or otherwise, it was appropriate for his Honour to admit the evidence as going to the credibility of the complainant, and not as to the truth as to its contents as to the occurrence of the charged events. 33 It is appropriate here to set out at some length - because it is necessary in relation to all grounds of the appeal - the substantial component of his Honour's summing up which deals with complaint, how it was to be approached by the jury and the matter of delay. What his Honour said was (after dealing with the required consideration of the counts separately): "Before you can convict the accused on the evidence of the one witness, [KB], you must carefully scrutinise and evaluate that evidence in the light of the criticism made of it by counsel for the accused in regard to each of the separate charges, and if after such careful scrutiny and evaluation you are satisfied that the evidence is truthful, reliable and accurate, you can use the evidence as the basis of a conviction on each of these charges. I give you that direction because the case against the case rests entirely on the evidence of the complainant, one witness, and when that is the position the direction that I have given you is one that is always given to the jury. It is not given here simply because the sole witness is a woman, the warning is not given because of any view I might have of the case but because the law requires it to be given by me to you. In relation to those circumstances that you have got to evaluate and scrutinise I will come back to those because those tie in with another direction that I have also got to give you, so we will come back to that shortly. The evidence shows that the complainant made no complaint to any person concerning the attack made on her close to the time of the alleged events, even though on the evidence she had ample opportunity to do so, and she did not complain to the police until January 2001, that is January this year. This of course goes to a consistency of story in that if the complaint was true you might expect her to complain at the first reasonable opportunity. The law says that this delay also goes to her credibility or lack of credibility or believability as a witness of truth. However the Court admitted evidence that some time after the events, some three or four years, she told her boyfriend what had happened, although she could not remember the exact terms. Mr Sharples was called, he gave evidence along the same lines, this evidence by her and he was admitted as going to her credibility in that this was not something, it is suggested, that she had just made up in 2001, and that it might assist you in coming to a decision as to her believability as a witness. The evidence, if believed, does not prove the commission of the offences but only goes to assist you in deciding whether she is a witness of truth or not. The law also requires me to tell you that the fact that the complainant does not complain immediately or at all does not necessarily mean that the witness was not telling the truth. There may be good reasons for delay and indeed the complainant in relation to each of those matters gave you reasons as to her failure to complain. She said that she was scared that she might get into trouble in relation to the first count and that she did not want to upset her mother, and that she was young and ashamed, she did not know why, she did not say anything on the last occasion but wished she had. So those reasons are the reasons that she advanced.

It is important that she was in fact only a young, some eleven or twelve years of age, approaching puberty at the time, perhaps unsure of herself and how to cope with this situation? Is it easier perhaps to sit here as adults looking back in hindsight and decide what she should have done and it was for her to tell on this person who had power in her daily life at home in that he was her mother's partner, he lived in the house, he was residing there. However, if you are satisfied that in relation to these counts there was no complaint close to the offence and you do not accept her explanation, you may take that into account in the manner that I have indicated. Whether you do so or not is entirely a matter for you. Evidence has been given in this trial of events that are alleged to have occurred in about 1982-4, some seventeen years ago when the complainant, as I said, was some eleven or twelve years old. Time has made it difficult for witnesses to completely recall circumstances and details, memories can fluctuate and fade over such a period of time, quite honestly, as can be seen in nearly all the witnesses called on behalf of the Crown and the accused, as well as perhaps leave scope for the dishonest, if there be any. No complaint was made to the authorities until 2001 and no one was told at all until at least three years after the event, if you accept the evidence of the complainant and Mr Sharples. Investigations have been made difficult by this delay, not only for the Crown but also for the accused, to find witnesses and records, and in relation to the very impreciseness of the time and details of the acts to cause a problem in any investigation which could in any way assist you. These matters may lead to a situation in which the evidence may be unreliable for a number of reasons: one is the age of the witness at the time, the period of time has elapsed and the interference occasioned to both sides to fully investigate all may contribute. What are the criticisms that counsel has made in relation to this matter? He says well firstly there's no complaint, you would expect there would have been a complaint, people were available to whom a complaint could have been made, and that is correct. And he detailed the mother and the father whom he said was somebody who she saw regularly, who did not like the accused, and he was a person who could have been there. He said there is no medical evidence and there is not, and you cannot speculate as to what the situation would have been if there was medical examination or not, there is just no evidence before you of any injury or of any blood and you cannot speculate on that. What you can do is, you can say if theses matters had been investigated at the time when these allegations are alleged to have occurred, then the evidence would have been or could have been available concerning examinations by qualified people in relation to the matter, but you cannot in any way guess as to what it might have been and the submissions that her mother would have noticed or this type of thing, there is just no evidence that there were any such injuries or any such blood. But you can draw that inference, as I say, that if the complaint had been made at the time, or close to the time these incidents occurred, these examinations could have been carried out and that is one of the matters that counsel says to you was the situation. It follows from that very impreciseness and the delay that no one is able to say on what particular day of the week or even what week or what month these matters are alleged to have taken place. That puts the Crown in the situation of being unable to indicate with precision, as I say, when it occurred and it puts the accused in a position of being unable to look to see if there is anything that could assist by being able to say it was such and such a date," I can say I was working.", or the mother could say she was playing squash or he was at home, all those things lead to this impreciseness and inability on both sides to properly investigate what took place, and indeed counsel points to one particular matter in that the incident with which the complainant refers to the second indecent assault and the third count, which is shown to be wrong so that further complicates the matter in relation to trying to find out and investigate anything in a situation. And he said thereby the accused is forced into a situation because of this inability to investigate anything that has taken place, of simply saying "I didn't do it.", which I suppose as he says on the face of it, sounds pretty weak, but what else could he say in the light of the fact that the Crown cannot particularise anything in relation to these charges other than that the girl makes the claim. You should carefully scrutinise theses submissions made to you by counsel concerning these problems that run because, as I say, the evidence may be unreliable. I said "may be unreliable", not must. You should carefully consider the factors that I have mentioned when assessing the evidence and the witnesses and the weight to be given to the evidence of the various witnesses, if any. It is entirely a matter for you in the circumstances". Later his Honour having dealt with the evidence of the complainant and Mr Sharples said: "Now the effect, if you accept their evidence that that conversation took place, simply goes to assisting her credibility as a witness of truth in that it cuts down, you may think, it is a matter for you, as to the fact that she had not complained to anyone at the time of the incident up until she went to the police, where in fact she says she told her boyfriend at that time, some years later, and that goes to try and show that she is not a person who has in fact manufactured these incidents. Whether you accept that evidence or not is entirely a matter for you, or whether you draw those inferences is entirely a matter for you".

34 When the course of the evidence which I have outlined above is taken into account and is placed against the directions and warnings contained in the extracted portions of his Honour's summing up, the only conclusion that fairly can be reached is that there is no basis for complaint by the appellant at all. His Honour complied with s 107 of the Criminal Procedure Act, 1986 and Reg v Williams [1999] NSW CCA 9 (sufficiency of directions concerning delay in making complaint, sufficiency of warning concerning reliability of evidence of complainant). His Honour made it clear to the jury that the role to be played by the evidence of "complaint" was as to the credibility of the complainant only and he did so in terms which in my respectful view created no danger of any uncertainty that the jury would misunderstand the nature and function, that is, availability, of this evidence in the performance of its task. 35 The jury was directed at some length about the effect of the delay and were instructed that as a result the evidence might be unreliable. Save for the matter raised in the quite separate third ground of appeal it is my view that these directions were appropriate and adequate. 36 It could only have been clear to the jury that there had been delay in complaint, initially 4 years, then not until 2001 when the formal complaint to the authorities was made. It could have been clear to the jury that the evidence of complaint was admitted only as going to the complainant's credibility and on no other basis. It could only have been clear to the jury that in the end their task, taking into account the warnings and directions given by his Honour was to determine whether the Crown had established proof beyond reasonable doubt in the context of their acceptance of the evidence of the complainant forming a basis for conviction. It is to be noted that his Honour did not say that if they accepted the evidence of the complainant they must convict. His Honour appears to have been careful to avoid falling into that error. In other words it was clear where the onus lay, and how the jury should go about approaching its task in determining whether or not the Crown had discharged it. 37 Thus far I am not persuaded that the bases identified in written submissions in terms of failure of the complainant to complain, the wrongful admission of "complaint evidence" or the inability of the complainant to particularise the dates of the alleged offences go to establishing the first or second ground of appeal. 38 There was a third leg or component to this part of the appeal which, shortly stated, related to the failure of the crown to call the younger sister R. The course of the evidence above only has to be considered to come to the view that an absence of the sister on a common sense basis is explicable and any Jones v Dunkel direction would have been meaningless. There was no certainty as to the date of the incident when R woke up when the appellant was in the bedroom and thus any evidence of R could relate to any occasion. Further it would be highly unlikely that R who was then aged about 10 years would remember any such incident as it was not alleged by the complainant that she observed R in a position where she observed sexual activity. Further, were she able to give evidence of any such incident it would most likely have been excluded because of a risk of concoction: Hoch v The Queen (1988) 165 CLR 292. 39 It was further submitted that the complainant's mother was a "witness" in relation to the third count in the indictment and that a Jones v Dunkel direction was called for in relation to the absence of any evidence from her. The problem with that proposition again is one of simple common sense, namely, that the complainant's evidence does not suggest that her mother would, could or did see any conduct on the part of the appellant that was unlawful or for that matter might have given rise to a suspicion about unlawful conduct. Insofar as the complainant's evidence points to anything it is entirely unremarkable in a domestic environment. All the mother could have given evidence of would have been limited to seeing the appellant coming out of the complainant's bedroom. Similarly it is unlikely that the mother would have been capable of genuinely remembering any such significant incident. I agree with the Crown submissions in relation to this third component of the first and second grounds of the appeal. That component is totally unmeritorious. 40 It is the third ground of appeal that is of particular significance. That ground of appeal is that his Honour failed to direct the jury that it was "dangerous or unsafe" to convict by using those precise words. In this instance there was an express request made of his Honour at the end of his summing up that he do so. The exchange between defence counsel and his Honour: "WILLIAMS: In relation to what your honour said about delay and the effect of that, I would ask your Honour to go further and give the jury a warning that because of the delay it would be dangerous to convict. HIS HONOUR: I am not going to say that it is going to be dangerous to convict. The Act says I should warn the jury as to the situation, but do not see that I have got to use the words "dangerous to convict". I think I did better than that, I told them they cannot convict unless they are satisfied beyond reasonable doubt that the complainant is telling the truth concerning the guilt of the accused did I not? WILLIAMS: I think you Honour did, yes. HIS HONOUR: I understand, I do not think I have got to use those particular words, "dangerous to convict". If I am wrong you are home and hosed. WILLIAMS: Thank you your Honour". 41 The appellant's submissions in writing and orally were founded upon the judgment of Spigelman CJ in Reg v Johnston (1998) 45 NSWLR 362. In that appeal the Chief Justice had reviewed the authorities including Longman and (at 474BF) suggested the following propositions as relevant to the determination of that appeal: "(i) Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. (ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt (iii) The need for, and content of, any comment will depend on the circumstances of the case. (iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case. (v) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that delay, for which the accused has not been responsible, had created those difficulties. (vi) Where the summing-up identifies difficulties pursuant to (v) , the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate. (vii) In some cases a warning which uses such terminology as "dangerous" or "unsafe" to convict will be required. The reason for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v)". (Emphasis added)

42 The appellant pointed to propositions (v) and (vii) as being applicable in the instant appeal. Difficulty was encountered, in my view, by counsel for the appellant in identifying "specific difficulties" in the light of an exchange with the Bench as to what is to be understood by the Chief Justice's reference to "specific difficulties". Pausing here, I think the answer to the posed question lies in the circumstances of the case with which that Bench of the Court of Criminal Appeal was concerned. In view of the perceived potential importance of understanding the Chief Justice's expression it is desirable to set out that part of his Honour's judgment which in my view explains why in the circumstances of that appeal his Honour chose to use that phrase (at 376E-37B): " After some directions on corroboration his Honour repeated: "… it would therefore be dangerous to convict on [M's] evidence alone and that is not to say that you can't convict but that it would be dangerous to do so and you should look for corroboration of her account." The first defect in the summing-up is that his Honour did not identify in any systematic way, the specific difficulties for the defence case, which had plainly be caused by delay in complaint . Counsel for the appellant took this Court in some detail to the submissions below to indicate the significant use to which the Crown put the fact of delay. The Crown Prosecutor referred to the passage of time to explain some inconsistencies in the evidence of the complainant. He submitted that the appellant's evidence gave details about the events of the day which reflected an "amazing recollection" and that was "simply unbelievable". However Mr Mula was said not to be a "reliable witness because he was trying to recall routine events that happened five years ago". The Crown Prosecutor sought to cast doubts upon the evidence of Miss Raczynski and Mrs Johnston on the basis that after five and a half years their memory of the complainant's demeanour could not be reliable. The significant reliance on delay in the submissions for the Crown should have indicated to the trial judge that at least some comment on the effect of delay on the ability of the accused to defend himself was called for. There was a real risk that the jury would discount the evidence in support of the appellant, because of the effects of delay on that evidence. The Crown had openly invited them to do so. In my opinion, the Crown did place such reliance on delay in attacking the witnesses for the appellant, that some form of comment was required to redress the balance. The weaknesses alleged in the defence case were not matters for which the appellant had any responsibility. The jury was left without any guidance from the Bench on the danger of convicting on evidence which could not be adequately tested either directly, or by permissible explanation of surrounding circumstances. Counsel for the accused did ask the jury to consider the difficulty which the defence had in dealing with allegations that were over five years old. However, this submission did not receive any authoritative reinforcement from the Court. In view of the real difficulties for the defence, which were emphasised by the Crown submissions, some form of reinforcement was required. The warning in this case should have referred to the Crown's attack on the evidence of Mr Mula, Miss Raczynski and Mrs Johnston about the presence of a bed in the room and the demeanour of the complainant after the alleged assaults and emphasise the difficulties in these respects caused for the defence by delay in making complaint". (Emphasis added) 43 In that context his Honour's remarks in my view become clear. What also becomes clear is that in the structure of the present trial there is nothing that would warrant the description of "special difficulties". 44 For the Crown it was submitted that the body of the directions and warnings set out above met the requirements of the warnings as required by the High Court in Longman, Crampton v The Queen (2000) 176 ALR 369 and Doggett v The Queen (2001) 182 ALR 1. In other words the submission was made that notwithstanding the absence of the use of the word "dangerous" or the word "unsafe", when one considers the "effect" of the words used by his Honour in the context of his summing-up as a whole, that which is said by the Crown to be required by the series of High Court cases has been satisfied. 45 In its submissions the Crown went on to refer to that decision of this Court which, in my view, cuts across the very proposition the Crown was advancing. The Crown relied on part of the judgment of Sully J in Reg v BWT [2002] NSWCCA 60. 46 It is to be borne in mind that the decision in Johnston was handed down before the High Court decisions in Crampton and Doggett and the decision in BWT was handed down as recently as 12 April 2002. 47 The appeal in BWT as described by Wood CJ at CL was "yet another appeal which turn[ed] upon the question of whether or not the jury was given an adequate instruction in relation to the so-called Longman warning". The Chief Judge at Common Law concurred in the judgment of Sully J, as did Dowd J, but made some observations generally of great thoroughness and utility to this Court and trial judges as to perceived trends in respect of Longman and other directions and the multiplicity thereof, to the giving of which a trial judge needs now to be alert. 48 Sully J embarked upon a careful and detailed analysis of the decisions of the High Court in Longman, Johnston, Crampton and Doggett (see paragraphs 65 and following). 49 His Honour came to certain conclusions: I set them out in full: "95. I have come, based upon the foregoing survey of curial authority, to the following conclusions: [1] The proposition advanced by Gleeson CJ in Doggett v The Queen to the effect that the decision in Longman "is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be 'dangerous' of 'unsafe' to convict on the uncorroborated evidence of the complainant", is, as I respectfully think, plainly correct on a fair reading of what was actually said in the joint judgment in Longman itself. Notwithstanding that some support is given to Gleeson CJ's proposition by the relevant parts of the judgment of McHugh J in Doggett , I think that the conclusion is unavoidable that, as matters currently stand, all five of the remaining Justices of the High Court do not accept the Chief Justice's proposition.

[2] It seems to be a fair inference from the various statements of principle of those five Justices of the Court that they would all accept, at least to some extent, a measure of discretionary flexibility on the part of a trial Judge who is required to give a Longman direction.

It seems to me, however, that the majority Justices regard that margin of discretion as being a very narrow one. It seems to be their Honours' position that such a residual discretion is available for the purpose of strengthening what I might describe as the basic Longman direction; but that it is not available so as to water the basic direction down in any way.

[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 : (a) The direction must be cast in the form of a warning. Any form of expression which is thought to have the character of a comment, or even of a caution will not sufficiently comply with what is required by law. It seems to me to follow that any trial Judge who is framing a Longman direction ought to ensure that the direction is framed, in terms, as a warning. (b) That which is to be warned against is, to return to the majority judgment in Longman itself: "that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], 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". The approach of the majority Justices in both Crampton and Doggett seems to me to entail that a trial Judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: first, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly, that it would be, therefore, dangerous to convict on that evidence alone ; thirdly, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and sixthly, that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction. (c) Not only must the substance of the warning be carefully and correctly focused, but the form of the warning, also, must be carefully and correctly framed. The form of the warning must be such as bears unmistakably the imprint of the Court's own authority. It must be made clear that the foundation of that authoritative warning of the Court itself is the accumulated experience of the Courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated. A ready example of that will be found in the trial directions in Crampton . (d) In framing the substance of a Longman direction, a Judge must keep in mind not only the guidance given by the joint judgment in Longman itself, but also the additional considerations to which reference was made in their respective judgments by Deane J and McHugh J. (e) The decision in Doggett will mean, in practical terms, that the framing of a satisfactory Longman direction will be a much more fraught and difficult experience in a case where the particular complainant's evidence does not stand entirely alone, but is supported, whether patchily or not, by some other evidence that is capable of being regarded reasonably as corroborative evidence. Those additional difficulties are pointed out clearly and compellingly, if I may respectfully say so, in the following portion of the judgment of Gleeson CJ in Doggett , (see paragraph [9]): "If, by a Longman warning is meant a warning that it was unsafe to convict on the uncorroborated evidence of the complainant, in the circumstances of this case such a warning, to be of practical assistance to the jury, would have required the trial judge to go into the matter of corroboration, to direct the attention of the jury to the evidence capable of being regarded as corroborative and to explain its possible significance. Why would defence counsel invite that? As far as he was concerned, the less said about corroboration the better." The majority Justices, that is to say Gaudron and Callinan JJ in their Honours' joint judgment and Kirby J in his Honour's separate judgment, do not go so far as to say that a Longman direction will always be required notwithstanding that there is evidence capable of corroborating, whether in whole or in part, the particular complainant's own evidence. What their Honours do make plain, is that the availability of such corroborative evidence cannot, of itself, obviate the need for a proper Longman direction. What their Honours appear to be saying is that the availability of such corroborative evidence will require the particular trial Judge to make a painstaking analysis of the way in which, of the extent to which, and of the particular points in connection with which, the corroborative material is effective; and then to decide whether the resulting state of affairs leaves open, notwithstanding the corroboration, such forensic disadvantage as to call for the giving of a Longman direction. (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 , "(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, Gummow, Hayne and Callinan JJ 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) 146 CLR 40 at 47), "far-fetched or fanciful". [4] It is a nice question of academic jurisprudence whether the substantive effect of the judgments in Crampton and in Doggett overrules the propositions articulated by Spigelman CJ in Johnston . The two High Court decisions do not themselves shed any direct light on that question. It is, I think, sufficient to say that, as I respectfully think, Spigelman CJ's propositions in Johnston should be approached and applied with some caution, in as much as those propositions seem to me, with respect, to entail a degree, (and, I might add, in my opinion a wholly justifiable and desirable degree), of judicial flexibility which does not sit comfortably with what seems to have become the settled majority view in the High Court". (Emphasis added) 50 The Crown in its written submissions expressly pointed to that part of paragraph 95 of his Honour's judgment in which his Honour sets out the 6 propositions relating to what the trial judge must ensure is encompassed by the "Longman" direction. It is to be noted that the second of those propositions is in the following terms "that it would be, therefore, dangerous to convict on that evidence alone". I agree with all that Sully J said in BWT.

51 In the instant trial of course there was no evidence at all capable of being characterised as corroboration. This trial as I have said as one of stark simplicity in which the evidence of the complainant was met by the evidence of the accused; additionally there was what I have found to be the properly admitted evidence in relation to the complaint. A more simple case would be hard to imagine other than one in which the limited evidence of complaint was absent. 52 When one considers this trial against the articulate enunciation of principle by Sully J one is left with the following propositions:

(1) This was a trial in which there was delay in complaint.

(2) The first delay was of some 4 years before the conversation with Mr Sharples when the complainant was aged about 15 years. It is trite to say of course that of this complaint the appellant would have no knowledge until the service of statements upon him consequent upon charges being laid, themselves being consequent upon the formal complaint made some 16 years after the alleged events.

(3) There was, as I have said, no evidence of a corroborative kind.

(4) It was a case of stark simplicity in structure involving in a real sense the account of the complainant being denied in the only way possible, that is, a simple denial by the accused on oath. 53 In those circumstances the conclusion to which I have come is that the current state of the law requires the Longman direction as propounded in that case itself and as evolved in the judgments to which Sully J refers and as incorporating the second proposition to which I have referred to above namely that it would be "dangerous to convict". In my opinion his Honour said everything else that was required of him: but that "everything else", is simply now not enough in the circumstances of a trial such as this. The critical words "dangerous to convict" which it is to be stressed, are contained in the Longman direction as originally formulated ((1989) 168 CLR 79 at 91) must be used. They were not, there has been a miscarriage of justice, the conviction must be quashed. 54 Before proceeding further, I must state for myself, that I am in complete agreement with the observations generally made both by Sully J and Wood CJ at CL as to the state of the law and particularly as to the perilous position in which a trial judge can find himself or herself in this most delicate area of the law in terms of the performance of the judicial duty with impartiality. It is unarguable in my respectful view, that a direction as is now required could very well be understood by a jury, as Sully J puts it (paragraph 118) as a none-too-subtly coded indication to it that the dangers of convicting are such that the jury ought to return a verdict of not guilty. I expressly adopt what his Honour said in relation to the observations of Gleeson CJ in Doggett; see Sully J, paragraph 95[1] and especially his Honour's reference to the Chief Justice's comment in paragraph [9] of the Chief Justice's judgment in that appeal. 55 What was not raised in this appeal is the matter raised by the Chief Judge at Common Law in BWT as to a warning expressed in terms (in the context of delay) that an accused "has" as opposed to "might have been" or "might well have been" prejudiced by the delay. In any event I agree with the observation of the Chief Judge at Common Law in paragraph 15 especially of his Honour's judgment. 56 I propose therefore the following orders: (a) That the appeal be allowed.

(c) That there be a new trial. 57 SIMPSON J: I agree with Levine J.

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