R v Taylor

Court of Appeal (Vic)|2008-04-23|Before: ASHLEY and KELLAM JJA and HANSEN AJA

CRIMINAL LAW - Sexual offences - Appeal against conviction - Delay in making complaint - Jury warning, s 61(1)(b) Crimes Act 1958 - Kilby direction - Whether Longman warning adequate - Commencement of proceeding for purposes of s 607 Crimes Act.

**1 The applicant was originally charged with 15 offences on the same presentment. He stood trial in April 2005, and was found guilty by majority on nine counts. On six counts the jury could not agree. The applicant was sentenced on the nine counts. He successfully appealed.[1] In April 2007 he appeared again to answer the 15 counts. His counsel made a successful application for severance of four of them. On 17 April, two presentments were filed over. The first of them, on which the applicant went to trial, alleged eleven offences involving a single complainant. The second of them alleged four offences involving three complainants.

2 After the applicant had been found guilty on all but one of the counts on the first presentment, he pleaded guilty to three counts on the second presentment. No evidence was led by the Crown in respect of the fourth count.

3 The applicant was sentenced in respect of the counts upon which he had been found guilty and on the counts to which he had pleaded guilty. The details of the sentences imposed are set out in the reasons for judgment of Kellam JA, which I have had the advantage of reading in draft.

4 Now the applicant seeks leave to appeal against his convictions on the counts on the trial presentment; and, if that application fails, he seeks leave to appeal against sentence passed on those counts. He also seeks leave to appeal against sentence passed on the plea presentment.

5 I agree with Kellam JA that leave to appeal against conviction should be granted, and that the appeal should be allowed, because the learned County Court judge - on the assumption upon which the trial proceeded - gave a deficient Longman warning.[2]

6 Other issues arose on the hearing of this appeal, however, about which I wish to say something.**

Section 607, Crimes Act

**7 It was assumed at trial in April 2007 that s 61 of the Crimes Act 1958 (Vic) applied in the form in which it was before the commencement of amendments made by the Crimes (Sexual Offences)(Further Amendment) Act 2006[3] ('the amending Act'). This meant that the less favourable position for accused persons with respect to delay in complaint which now applies by operation of s 61 (1)(b) (ii) and (iii) did not apply in the applicant's case; and that the statutory constraints on the obligation of a judge to give a Longman[4] warning now imposed by s 61(1A)-(1E) had no application. We were told by counsel for the applicant that the possible consequences which might flow - that is, by reason of the amendment of s 61 - from a successful application for severance and the consequential need to file over new presentments were taken into account before such application was made.

8 In written submissions in this Court, counsel referred to s 61(1)(b) 'as relevant at time of trial'. That excited the Court's enquiry whether the assumption on which the trial had been conducted below was correct. The Court raised the issue with counsel at the outset of the hearing.

9 The amending Act made a number of amendments bearing upon the conduct of trials in respect of sexual offences. Part 2 amended s 61 of the Crimes Act in respect of jury warnings. The Part had its own transitional provision, now s 607 of the Crimes Act. The provision reads:**

The amendments made to this act by section 3 of [the amending Act] apply to any proceeding that commences on or after the commencement of that section, irrespective of when the offence to which the proceeding relates is alleged to have been committed.

**10 The questions which arises are these: what is the 'proceeding' to which s 607 refers; and when does that proceeding commence?

11 Counsel for the applicant submitted that the reference to 'any proceeding that commences' in s 607 of the Crimes Act was a reference to s 26(1) of the Magistrates' Court 1989 (Vic). Under the heading 'How Criminal Proceeding Commenced', s 26(1) provides that 'a criminal proceeding must be commenced by filing a charge ...'. Counsel submitted that the reference in s 607 was to s 26(1) because criminal proceedings begin in the Magistrates' Court, wherever they might end.

12 Counsel for the Crown raised no contrary argument. Neither party took up an invitation from the Court to make further submissions, in writing, after the hearing had concluded. In the event, no explanation was advanced why it was that the 'proceeding' referred to in s 607 was the 'criminal proceeding' referred to in s 26(1) of the Magistrates' Court Act.

13 For the reasons which follow, I consider that the trial was conducted on a false basis; and the appeal likewise. In my opinion, s 61 should have been applied in its amended form, because the proceeding commenced, for the purpose of s 607, when the new presentments were filed over. The issue is not a sterile one, at least because the likely consequence of the appeal is that there will be a re-trial.

14 Let me first address what I perceive to be the thrust of the (undeveloped) argument that the proceeding to which s 607 refers is a criminal proceeding commenced in accordance with s 26(1) of the Magistrates' Court Act. Because of statutory time limits pertaining to prosecution of particular offences, the time when a criminal prosecution commences has long been of importance. In England, jurisprudence developed that -**

The commencement of the prosecution is the preferring of the indictment when it is sent up without a preliminary inquiry; or the laying of the information or complaint; or, it would seem, the arrest of the accused person or the application for a summons or warrant in respect of the offence.[5]

15 That approach took hold in Australia. Section 47 of the Crimes Act 1915 (Vic) provided that ' no prosecution for an offence [of unlawful carnal knowledge] shall be commenced more than 12 months after its commission'. In R v Kelly[6] the information was laid within 12 months of the alleged offence. The accused was committed for trial. The presentment was filed outside the 12 month period. The Court said:

We think the prosecution was commenced by the laying of the information, and as that was within twelve months of the times alleged in the presentment, that the prosecution was commenced in time. Whatever might have been the position in the time of Lord Hale, we think that under our present procedure the laying of an information, where it is followed by a commitment for trial, is the commencement of the prosecution.

It seems to us that once you depart from the date of the presentment, and go back for any purpose to the preliminary proceedings, it necessarily follows that the information is part of those proceedings and the commencement of them, and if these proceedings are part of the prosecution the information is the commencement of the prosecution.

**16 Section 47 has since been repealed.[7] But that is not important for present purposes. Neither is it of any particular importance that there are still provisions in Victoria which require the commencement of a prosecution[8] or a proceeding[9] within a specified period after the commission of an alleged offence. The existence of such provisions merely shows that the jurisprudence can be of continuing relevance.

17 The approach taken in Kelly, as might be expected, was applied elsewhere in Australia. In R v Hackett,[10] for instance, counsel advanced an argument similar to that which had been unsuccessfully propounded in Kelly. Olsson J said -**

True it is that the jurisdiction of the higher court is said to be "enlivened" to deal with the matter, once an information is presented. But that is not to say that there are no proceedings in train by way of prosecution for a criminal offence, except in a situation in which a first instance, ex officio, indictment is presented.

. . . in R v Butler (at 267), the Full Court said "There is no doubt that the proceedings before a Magistrate are, for some purposes, the commencement of the prosecution, which ends in conviction or acquittal in the Supreme Court". This reasoning accords with the principle expressed in R v Willace, 1 Ea PC 186, in which the court declared that "the information and proceeding before the magistrate was the commencement of the prosecution within the meaning of the Act; and that the variance between the manner of laying the offence in the indictment, and charging it in the commitment, made no difference."

**18 Olsson J referred to an observation by Gibbs ACJ in Sankey v Whitlam[11] in support of his conclusion that a prosecution had been commenced by the initiation of charges in the Magistrates' Court. But the learned Chief Justice had been addressing a quite different point;[12] and in any event the reference was unnecessary to make good the conclusion reached by Olsson J.

19 In my opinion, context is of critical importance when deciding what is meant by 'proceeding' and by 'commence[ment]' where those words are used in s 607 of the Crimes Act. It does not follow, because for the purposes of addressing a statutory time bar a criminal prosecution commences when a charge is filed,[13] [14] that something is thereafter identifiable at all times and for all purposes as 'the proceeding' which was commenced. That takes me to the first matter which tells positively in favour of the conclusion which I have reached.

20 The amendments to s61 of the Crimes Act are only relevant to trials by jury of particular categories of criminal matters. Section 607 is directed to the commencement of those provisions. Such trials cannot be had in the Magistrates Court - only in the County Court or the Supreme Court. For a trial to be had in one of those courts, the court must be seised of the matter. It is so seised, most commonly, when presentment is made in that court. See Crimes Act, s 353(1).[15]

21 Section 353(1) has a very long lineage. In this State it dates from 1874. It was analysed at length in R v Parker.[16] There it was held that a presentment must be in writing, must be signed by an authorised person, must be filed in court, that the person signing the presentment must be relevantly authorised at the date of filing, and that - the person who signed the presentment not being authorised at the critical time -**

... there was no valid presentment before the ... Court, that Court had no jurisdiction to arraign or try the [accused] for any indictable offence: see s 351of the Crimes Act 1958. The trial was a nullity and the conviction and sentence must accordingly be quashed ...[17]

**22 Parker remains good law. A different result obtained in R v TSR.[18] But that was because, two presentments having been filed, the latter was treated as being no more than an amendment of the presentment earlier in time.

23 If a trial conducted and verdict returned on a defective presentment is a nullity, the likely rationale must be that there was no proceeding before the court in which the trial was had. The logical corollary, if a presentment be regularly filed, is that a proceeding is thereby commenced in the court in which it is filed.

24 I go to a second matter which tends positively in favour of the conclusion which I have reached. Section 4(4) of the Crimes (Criminal Trials) Act 1999 (Vic) provides that 'on the making and filing of a fresh presentment, proceedings on any presentment previously made and filed in relation to the same offence or a related offence are permanently stayed.' The provision suggests, first, that there is a proceeding on a presentment; and second, that the proceeding on an earlier presentment is effectively brought to an end, and a new proceeding commences, when a fresh presentment is filed over. The second of those aspects travels beyond Parker.

25 Section 4(4) reflects, I think, the course taken by Ormiston J, and the reasons expressed by his Honour for taking it, in R v Harris and Others (No 2).[19] There, his Honour ruled that the Crown could file a second indictment without leave, but that it must elect, before arraignment, on which indictment it wished to proceed. Then, the appropriate order to make was 'that proceedings on the other indictment be permanently stayed'.[20]

26 A third matter tending in favour of the conclusion which I have reached is that such conclusion appears to be consistent with the circumstance, rare though it might be, that a person is presented directly to a superior court for trial.[21] I think it is also consistent with the circumstance that a person may be presented for trial for an offence in respect of which he or she has not been committed.

27 Fourth, although a person may be committed on a number of charges by the Magistrates' Court, the presentment ultimately made and filed may differ to an extent from the charges upon which the person was committed. Counsel for the Crown submitted that there are limits to the changes which can be made. He referred to the Public Prosecutions Act 1994 (Vic).[22] That may be agreed, but it remains the fact that there are permissible variations between the charges upon which a person is committed and the counts on a presentment. This does tend to highlight the distinct character of the matter which is begun by the filing of the presentment.

28 Fifth, it cannot even be assumed that the charges first laid against a person will either be the entirety of the charges in issue on a committal hearing, or the charges upon which the person is committed.

29 Sixth, the functions of the Director of Public Prosecutions, as set out in s 22 of the Public Prosecutions Act, rather suggest that there is a perceived distinction between proceedings in the superior courts, and a proceeding in the Magistrates' Court. The same distinction is implicit in s 43(1)(d) and (2)(a) of that Act.

30 Seventh, I think that there is nothing to be made, against the conclusion which I have reached, in the coincidence of the word 'proceeding' in s 26(1) of the Magistrates' Court Act and in s 607 of the Crimes Act; or in the concept of commencement which is common to both provisions. 'Proceeding' and 'proceedings' are words liberally used in the Magistrates' Court Act. Part 4 of that Act is concerned with 'warrants and criminal proceedings'. Part 5 is concerned with 'civil proceedings'. In respect of both civil and criminal proceedings there are many procedural provisions which make use of those terms. Subdivision 4 of Part 4 is directed solely to 'committal proceedings'. Both in respect of civil and criminal proceedings there is provision for appeal.[23] In all, the Magistrates' Court Act is framed in a way which suggests that its concern is simply to establish the jurisdiction and procedures of the Court thereby constituted.[24] In that context, I think, it would be surprising if a procedural provision relating to the commencement of a criminal matter[25] in the Magistrates' Court, a matter which might never find its way to a superior court, was taken to be the commencement of a proceeding for the purposes of s 607 of the Crimes Act.

31 Eighth, I should refer for completeness to other transitional provisions in the Crimes Act and in related legislation. There are many of them - some being imported from what I have called the amending Act. In the end, for reasons which I shall give, I think that they provide limited assistance in giving meaning to s 607.

32 The language of the transitional provisions varies a good deal. Sometimes amendments apply to 'any trial that commences on or after the commencement of' a relevant provision, 'irrespective of when the offence to which the trial relates [was] alleged to have been committed';[26] the commencement of trial being the day of arraignment. Sometimes amendments apply 'only to offences alleged to have been committed on or after the commencement of' the amending provision.[27] Then there is a provision by which amendments apply 'with respect to an offence for which a presentment is served on or after' the commencement of an amending provision.[28]

33 There are transitional provisions identical with or akin to s 607. Section 159 of the Evidence Act, inserted by the amending Act, is in the same language. Section 586(1) refers to 'a proceeding for an offence that is commenced' after the commencement of an amending provision (my emphasis). Section 585A(1) refers to 'a proceeding that occurs on or after the commencement of the provision' (my emphasis); and s 585A(2) refers to 'any legal proceeding that commences on or after' such commencement. That is also the language of s 606(2). Section 589(3) refers to 'any proceedings that commence on or after the commencement of' an amending provision of the Crimes Act (my emphasis).

34 What is the difference, if any, between a proceeding that commences and a proceeding that occurs? Is there any difference between a proceeding that commences and a proceeding that is commenced? Is there a point of distinction between a proceeding and a proceeding for an offence? Why use the singular 'proceeding' in most instances, but the plural elsewhere? To my mind, these variations contraindicate careful attention to detail. Moreover, they make it harder to reason from one situation to another. That makes it more problematic to use them with any confidence to assist in giving meaning to s 607.

35 Nonetheless, at one extreme in the continuum set up by the various transitional provisions there is the application of amending provisions to offences whenever committed. At the other extreme is the application of amendments in respect of offences committed on or after the starting date of the amending provision. Towards the latter extreme are provisions which operate in respect of offences, whenever committed, which come to trial after the commencement of an amending provision; and amendments which operate so long as a hearing has not commenced, or evidence has not been taken. A little earlier in the temporal sequence of events are amendments which operate where a presentment is served subsequent to commencement of the amending provision. Sometime earlier in the temporal sequence, as I see it, are amending provisions which operate from the commencement of a proceeding.[29]

36 If it is correct to conclude that, for the purposes of s 607, a proceeding in a superior court is commenced when a presentment is filed - or filed over - such commencement will be shortly before the time when the presentment is served.[30] If, on the other hand, a proceeding is commenced, for the purposes of s 607, when a charge is filed with registrar or bail justice under s 26(1) of the Magistrates' Court Act, then - assuming substantial coincidence between the subject matter of the charge and the subject matter of the presentment on which the accused goes to trial - the commencement of the proceeding is likely to be much earlier than the making and filing of the presentment. There will have been, ordinarily, a committal mention and a committal hearing in the interim.

37 In all, the attraction of treating s 607 as adverting to the filing of a charge pursuant to s 26(1) of the Magistrates' Court Act is that it would - or might - provide a date which is certain;[31] a date moreover, at an early stage in the history of a criminal prosecution. Such an interpretation would work to the advantage of accused persons, in that the application of potentially adverse effects of the amendments to s 61 of the Crimes Act would be delayed. Nonetheless, for the reasons which I have given, I consider that the correct construction of s 607 is that s 61 of the Crimes Act applies in its amended form to a trial on a presentment which is filed or filed-over subsequent to the commencement of the amending Act. In the present case, I consider that the relevant proceeding was that upon the filed-over presentment on which the applicant stood his trial.

38 I should add this: nothing which I have said should be taken to suggest that, on a re-trial, an application made under s 61(1A) on behalf of the applicant for a direction would lack substance. My opinion is rather the converse.**

39 Upon the footing that the trial and appeal were conducted, I think that the appeal must succeed. The judge had to do three things: First, by reason of s 61(1)(b) of the Crimes Act, she was obliged to inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it. Second, it was necessary for her Honour to give a Kilby[32] direction. That is, the judge should have instructed the jury that in evaluating the evidence of the complainant, and in determining whether to believe him, it could take into account that he had not complained at the earliest reasonable opportunity.[33] Third, the critical evidence of the complaint being uncorroborated, in circumstances where there had been a delay in complaining between 1986 and 2001 in respect of the earliest alleged abuse, and between 1988 and 2001 in the case of the abuse alleged to have last occurred, the judge was obliged to give a Longman[34] warning.

40 In my respectful opinion the judge's charge was defective. Her Honour did give a charge nominally addressing s 61(1)(b) of the Crimes Act, did give a Kilby direction, and did give a Longman warning. But in my opinion the Longman warning was so diluted, by reference to an irrelevant circumstance, as to fail to achieve the purpose which it had to serve. Upon that issue, I respectfully agree with what Kellam JA has said. Although the judge directed the jury that it was dangerous to convict on the uncorroborated evidence of a complainant, and that it should not do so unless it was satisfied of the truth and accuracy of that evidence on all the material facts, that warning was given in the context of her Honour previously having said, in substance, that both the prosecution and the defence cases were or may have been impaired by the delay.

**41 It is not necessary for me to decide whether or not the s 61(1)(b) direction given by the judge was defective. I am not as confident as Kellam JA, however, that her Honour's charge was relevantly unexceptional. That is so for these reasons.

42 Whether or not it was unexceptional to explain the direction which was required by s 61(1)(b) generally by reference to 'common human experience', what her Honour then did, in substance, in paragraph 2 of her charge (I use the numbering adopted by Kellam JA) was to take the very situation which was before the Court, and to proffer, as common human experience, an explanation for the complainant having long delayed in making complaint. The matter was put as a proposition, not as a suggestion to the jury that it was an hypothesis which it might wish to consider. To my mind, her Honour there substantially foreclosed any significance in the delay in making complaint by suggesting that common human experience in the particular circumstances explained such delay.

43 To an extent, I think, what her Honour said in paragraph 3 drew back from what she had said in the preceding paragraph. She did invite the jury to consider why in the particular case there may have been delay in complaint. It was put in the language 'you must consider may well' - language that was not ideal, particularly the use of the word 'must'. But the passage might be said to have invited the jury's consideration whether the matters detailed by her Honour did in fact provide reason why the complainant had delayed in making complaint.

44 In paragraph 4 the judge developed her discussion of reasons why a victim of sexual assault might delay or hesitate in complaining. She said the jury should look at the matter from the perspective of a 13 or 14 year old boy. She said that the complainant had said he was scared of the accused when the abuse first occurred, that he felt confused about it, that he felt it might be his fault, and that the applicant was a man of some authority. For that reason he had felt unable to complain. It was, in my opinion, proper for the judge to draw the jury's attention to the complainant's own explanation for not having complained at the outset. It was then for the jury to consider whether in its opinion what the complainant said did provide a good reason for his not complaining. The judge's attention to what the complainant actually said may be contrasted with the conjectural matters mentioned in paragraph 3 and the direction given in paragraph 2. The only criticism that could be made, I think, to paragraph 4 is that the judge paid no attention to the elapse of time from, say, when the complainant reached 17 or 18 years of age, and his complaint many years thereafter.

45 It can next be said that at paragraphs 5, 6 and 7 the learned judge detailed submissions made by counsel for the applicant why, amongst other things, absence of early complaint contraindicated the alleged offences having been committed. That was a counterpoint to what her Honour had said at paragraph 4, and to some extent at paragraph 3. There is a difference, however, between a proposition advanced by a judge and a proposition advanced by counsel which is recapitulated by the judge.

46 A charge must be read in its entirety in order to gain an appreciation of its meaning. The gist of the charge may be distorted if a few words or sentences are taken out of context and submitted to discrete examination. That said, I remain doubtful that what her Honour later said sufficiently addressed the strong statements which her Honour had made in paragraph 2.**

47 Neither is it necessary for me to decide whether or not the Kilby direction given by the learned trial judge was defective. Her Honour put the matter in terms of the jury considering whether the complainant's conduct was consistent or inconsistent with the allegations made. Absence of complaint was relevant to the complainant's credibility, not to whether his conduct had been consistent or inconsistent with the allegations which he made. The fact that, if early complaint had been made, it would have gone to consistency did not mean that the absence of early complaint, for the purposes of a Kilby direction, was to be so characterised. It can at least be said that it would have been better had the judge simply directed the jury that it should consider, when deciding whether or not to accept the complainant's evidence, the fact that no complaint had been made at the time.

48 I agree entirely with what Kellam JA has said about that matter.

49 I agree in the orders proposed by Kellam JA.

**50 The applicant, Marcus Alan Taylor, is currently 64 years of age. In May 2007 he was convicted by a jury of committing sexual offences upon the complainant, to whom I shall refer as 'J'. The offences were alleged to have occurred between 1 November 1986 and 13 March 1988. Upon conviction the sentences imposed by the sentencing judge were as follows:

**51 The sentencing judge ordered that three months of the term of imprisonment imposed on count 4, three months of the term of imprisonment imposed on count 7, one year and six months of the term of imprisonment imposed on count 8 and one year and six months of the term of imprisonment imposed on count 10 and two years of the term of imprisonment imposed on count 11 be served cumulatively upon each other and upon count 5. That resulted in a total effective sentence of nine years and six months' imprisonment.

52 In addition, and at the time of the hearing of his plea upon the above convictions the applicant pleaded guilty to three counts of indecent assault laid against him by a separate presentment (the plea presentment) in relation to offences committed against three separate complainants other than J. He was sentenced on these matters as follows:**

**53 It was ordered that the sentence of imprisonment imposed in respect of each of these counts of indecent assault were to be served cumulatively upon each other, making a total effective sentence of seven months' imprisonment of which two months were directed to be served cumulatively upon the total effective sentence imposed by reason of the convictions after trial. That resulted in a total effective sentence of nine years and eight months imprisonment. The sentencing judge directed that a minimum term of seven years' imprisonment be served before the applicant became eligible for parole.

54 The applicant now seeks leave to appeal the convictions recorded in respect of the counts on the trial presentment. In addition he seeks leave to appeal the sentences imposed upon each of the trial presentment and the plea presentment and the total effective sentence imposed upon both presentments.

55 Before turning to the grounds upon which the applicant seeks leave to appeal his convictions it is desirable that I review briefly the evidence upon which the convictions were recorded.

56 The applicant was a scout leader and lived on a farm at Cowwarr. J was a member of the applicant's scout group. He joined the scout group at age 11 and left the scout group in June 1988 when he turned 15 years of age. J was a friend of the applicant's son, to whom I shall refer as 'A', who was a similar age to J and who was also a scout. J gave evidence of the following matters. In 1986 when he was aged 12 years, J telephoned the applicant's son, A, to see if he could come over to A's house. The applicant answered the telephone and told J to come around to his house. J rode his bicycle to the applicant's farm in Cowwarr. The applicant met him at the end of the driveway. The applicant was riding a motor cycle. The applicant told J to leave his bicycle at the driveway and to get on to his motor cycle. J sat on the front of the applicant's motor cycle with the applicant seated behind him. They rode up the driveway and then veered off to the right and drove up a hill at the side of the farm. As they were riding up the hill the applicant kept pulling J back towards him and rubbing his erect penis against the small of J's back (count 1). When they got to the top of the hill, the applicant stopped the motor cycle, turned J around and said 'Look what you've done to me', pointing towards his groin. The applicant also said 'Don't tell anyone of this, you'll be in trouble'. Shortly thereafter the applicant started up the motor cycle again and he and J rode back to the house. J asked the applicant where A was and he was told that he was not at home that weekend, as he had gone to Geelong. J walked back down the driveway and rode his pushbike home. At that time he did not tell anyone what had happened.

57 In early 1987 A invited J to go camping at the applicant's farm. J was driven there by his parents. Whilst he was at the farm the applicant suggested that A and J learn how to ride a motor cycle instead of going camping. J got on to the applicant's motor cycle and whilst they rode around the farm, the applicant did exactly the same thing as he had done on the previous occasion on the motor cycle. He pulled J towards him as they rode and J could feel the applicant's erect penis against his back. The applicant said 'Don't tell anyone you've done this to me'. This event was the subject of count 2 on the presentment.

58 Subsequently, in approximately December 1987 J rode his bicycle to the applicant's property to see if A was at home. The applicant was driving his tractor near the driveway. The motor cycle was nearby. The applicant stopped the tractor and said to J: 'Come on, jump on the motor cycle, I will give you a lesson'. J got on to the front of the motor cycle with the applicant seated behind him. The applicant drove up the driveway and pulled into the hayshed. There were hay bales in the shed. Once inside the hayshed the applicant told J to pull down his pants. J refused. The applicant said 'Well if you don't you're going to get into trouble'. J pulled off his shorts and the applicant pulled out his penis and started masturbating (count 3). The applicant grabbed J by the shoulders and pushed him down into the hay bales and then put his finger and thumb into J's anus (count 4). The applicant then penetrated J's anus with his penis (count 5). J screamed and yelled. He gave evidence that it was the worst pain of his life. Once the applicant let him go, J ran back to his pushbike at the end of the driveway and rode home. He did not tell his family what the applicant had done to him because he thought he was to blame. In addition he said that he was scared and felt ashamed.

59 J gave evidence that every Labor Day weekend his scout group went to a camp near Loch Sport. From the time that he joined the scout group J attended this camp every year including the year of 1988. J was reluctant to attend the 1988 camp because he knew the applicant would be there, but he agreed to go on the camp when he found out that one of the other parents, Perry Black, would be in attendance. The group left for Loch Sport on a Friday night and J travelled to the camp in the applicant's car with three other boys. Three tents were set up at the camp, one for each group of four scouts and one for the two leaders. As the tents were being laid out, the applicant called out to J to have a look at the boat ramp which was a 'couple of kilometres from the camp'. The applicant and J drove to the boat ramp in the applicant's car. When they arrived, instead of looking at the ramp the applicant said to J 'Come over here' and wandered into the ti tree. J felt compelled to follow him through the bush. Once there the applicant told J to pull down his pants, which he did. The applicant pulled down his own pants and told J to masturbate his, the applicant's, penis (count 7). The masturbation occurred for about a minute, and then the applicant pushed J onto the ground with his face into the sand. The applicant inserted his finger and then his penis into J's anus (count 8). The applicant told J not to tell anyone what had happened. The following day was Saturday. During the day the scouts launched Perry Black's boat at the boat ramp. After the boat had been retrieved and everyone was going back to the camp, the applicant beckoned J to his car. J got into the applicant's car while everyone else got into Mr Black's car. The applicant took J to the same location as he had the previous day and pulled down his pants. He said to J, 'You know what to do' and put J's hand on his penis. J masturbated the applicant (count 9). After a minute or two the applicant grabbed J by the shoulders, spun him around and pushed him into the ground. He pushed J's face into the sand and penetrated J's anus with his penis (count 10). The next day at the camp the applicant approached J and mentioned a scouting badge, a pioneering badge. The applicant told J that in order to get the badge he had to get into the car with him. J got into the car and the applicant drove to the boat ramp again. The applicant pulled off J's pants and pushed him into the sand and penetrated J's anus with his penis. He ejaculated (count 11). Afterwards J washed himself in the lake and returned to the applicant's car. Monday was the last day of the camp. Whilst everyone was packing up, the applicant approached J and said 'Come with me'. J was angry and said 'No', pointing the tent pole towards the applicant like a spear. The applicant walked away.

60 In cross-examination J said that the first time he had told anyone about the sexual abuse was in 2002. He told his father first about some of the abuse, and then spoke to someone at a sexual assault centre in the course of counselling. About a week or two later he made a statement to the police. In cross-examination J was questioned about the alleged incidents in the hay shed. He said that the shed contained square or rectangular bales of hay. He denied that the shed contained rolls of fodder. In re-examination J said that he was able to pinpoint that the offending which occurred on the Labor Day weekend occurred in 1988. He said that he remembered that it was the Bicentennial Year and that that year he had travelled to America on a school music trip.

61 The applicant gave evidence before the jury. He denied having ever sexually assaulted J. He said that he ran a beef cattle breeding program on his farm and between 1982 and 1991 he used rolls of fodder rather than hay bales. He said that there was a hayshed on the property in 1986 and 1987 but that there were no hay bales in the shed. He said that he and his son A both ceased their involvement in the scouts in December 1987. He said that he had attended a Labor Day camp at Loch Sport in 1984, 1985, 1986 and 1987 but did not attend the 1988 camp.

The trial judge erred in the directions to the jury concerning delay and complaint, and in particular -

**(a) she directed the jury, in effect, that it was "common human experience" ... that there may be good reason why victims of a sexual assault might hesitate or refrain from complaining ... [and that] can be particularly said in the case of children, where that child is alleged to have been assaulted by a person who was in a position of authority or trust in relation to that child.

(b) she directed the jury, in effect, that it is "common human experience" that some memories "never fade";

A miscarriage of justice resulted from the trial judge's failure to give the jury a warning which was sufficient in the circumstances to alert the jury to the significant forensic disadvantages flowing to the applicant from delay in complaint.

A miscarriage of justice resulted from the trial judge making comments calculated to dilute the warning necessary in the circumstances as to delay in complaint; and in particular, the trial judge in effect instructed the jury that the police had suffered disadvantage in investigation as a result of delay.

The trial judge erred in the directions concerning delay; and in particular -

**(a) she failed to direct the jury sufficiently that it would be dangerous to convict on the evidence of a complainant alone;

(b) she failed to warn the jury sufficiently of the risks of a miscarriage of justice in such a case;

(c) the effect of any direction, comment or warning was substantially or wholly diminished by the directions to the effect that the police had lost the ability to investigate the matter soon after the relevant events;

(d) the juxtaposition of comments and directions with necessary warnings was apt unacceptably to dilute the required warnings;

(d) such directions as were given were apt to cast an onus of disproof on the applicant.**

(b) alternatively, the jury's verdicts on counts 7 to 11;

are unsafe and unsatisfactory; and in particular, a reasonable jury properly instructed -

(i) ought to have had a reasonable doubt as to the applicant's guilt on all counts;

(ii) ought to have had a reasonable doubt as to the applicant's presence at Loch Sport on 11, 12 and 13 March 1988 and thus as to guilt on counts 7 to 11.

63 In the case before the jury the issue of delay between the date of the alleged offences and the date of trial was a matter of significance. The events alleged to constitute the offences occurred between 14 and 16 years before the applicant was charged by police and between 19 and 21 years before the trial took place. At the time of those events J was aged between 12 and 14 years. Ground 1 is related to that delay and the fact that by reason of s 61(1)(b) of the Crimes Act 1958, in the circumstances of this trial, the trial judge was required to inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in making complaint about that assault. Grounds 2A, 2B, 2C are likewise related to that delay, and to the requirement, in the circumstances of this trial, that the jury be given a Longman warning.[35]

64 It is convenient to deal with grounds 1, 2A, 2B and 2C together, dealing as they do with assertions that the trial judge's directions in relation to the delay in complaint were deficient and/or erroneous.

65 In order to consider those grounds it is necessary to set out in some detail her Honour's directions to the jury as to the question of delayed complaint. Her Honour said;**

[1] Members of the jury, you have heard comments made and submissions put to you about the complaint by the - or the lack of complaint by the complainant at the time that these offences took place. As a matter of law if a person had complained at the first reasonable opportunity about a sexual offence then a jury in your position would have heard that evidence, because the law would have allowed it in to show some sort of consistent conduct by that complainant. In this case you are well aware that there was no complainant (sic) made by the complainant at the time that these offences are alleged to have occurred.

[2] Indeed you have heard evidence that although these offences are said to have occurred in 1986, 1987 and 1988, that he first told somebody that is his father, late 2001, and that he made a statement in 2002. Counsel for the accused man has suggested that the reason he did not complain is because nothing happened and that you should not believe his evidence now when he comes to this court and tells you that he was abused all those years ago. In these circumstances, members of the jury, I must direct and warn you that common human experience does indicate that there may be good reason why victims of a sexual assault might hesitate or refrain from complaining. That can be particularly said in the case of children, where that child is alleged to have been assaulted by a person who was in a position of authority or trust in relation to that child.

[3] Indeed in a situation such as asserted by the complainant here, where you have heard about the relationship that he had with the accused at the time, that he regarded him as a person in some authority over him as a scout leader or scout master, a mature adult, a friend of his father's and family and the father of his friend. A child in that situation then you must consider may well be reluctant to complain for all sorts of reasons. Fear of punishment, fear of not being believed, confusion, simply being concerned about their own feelings of guilt.

[4] You have got to look at the evidence and the fact that he did not complain in the whole context, members of the jury. Look at it from the perspective of a 13 or 14-year-old boy as he was at the time, and consider what you make of it. Here the complainant says that he was scared of the accused when these things first happened to him, that he felt confused about it, that he felt it might be his fault, he felt ashamed and that the accused was a man of some authority and he felt unable to complain about it in that context.

[5] The accused's counsel says to you that, look if he had of complained around the time of the offences then that might well have demonstrated some consistency of conduct, the very fact that he did not must strongly suggest to you that these allegations are not true. You would expect that he would have complained much closer to the event.

[6] Further the defence point out to you the fact that the complainant not only did not complain but he continued to have contact with the accused after incidents were alleged to have occurred. It is put to you that that is conduct also totally inconsistent with the allegations being true. It was put to you in particular that the complainant put himself in the position where he was going to realise that he was going to be able to be abused by the accused if what he said is then true, and yet he still put himself in that position, particularly in relation to going to the scout camp. After he says that these serious offences took place in the hayshed previous to that. So the accused counsel says to you, it is just improbable, unrealistic, that a boy in his position would have placed himself in the position where he must have known he was at risk of further sexual conduct.

[7] So you are asked to consider those aspects by the defence when you are looking at the fact that he did not complain, and you add to the conduct that transpired after he alleged that he'd already been abused by the accused. And the defence would say that the only conclusion you could come to is that they are just not true.

[8] Members of the jury you may use lack of complaint in the assessing the question or not of whether a person's conduct is consistent or inconsistent with the allegations. That is entirely up to you to say whether in all the circumstances, the absence of complaint does constitute behaviour which is inconsistent with the happening of these events. You must determine in all the circumstances as you find them to be - it is simply one of the aspects of the evidence that you have to properly consider when you are assessing these particular charges. You have now heard the complainant, you have seen him give evidence. You have heard the allegations tested and you must reach your own conclusions taking into account those aspects of it to which you have been specifically directed by the defence in their submissions and through the evidence.

[9] Of course, it is also suggested here that the complainant has fabricated these allegations. That they are not true. The defence submit to you that you would find that these are false allegations. The defence say quite openly they do not know why they are fabricated. They cannot come to you with a cast iron motive, but they submit that it may well be relevant in relation to the application for compensation which you have heard about. That it may well be that as a result of what you heard was a mental instability that the complainant conceded for some four or five years when he was drinking and consuming alcohol to extreme, that the complainant is deluded about these matters. The defence say they do not really know why, but that you should effectively, reach a conclusion that these are fabricated.

[10] It is up to you again members of the jury, whether you accept any or all of those submissions in relation to the motive or the fact that there is a reason for the complainant to tell lies. But also of course remember, the accused does not have to prove anything in relation to that. He does not have to prove a motive. It is for the Crown to prove that the alleged event occurred beyond reasonable doubt. And if you reach a conclusion that it is possible that the complainant did fabricate these allegations because of the motive suggested, or indeed for any other reason, then it would be your duty to acquit the accused man. The accused man does not have to establish a motive. The Crown must establish that the complainant is truthful on the relevant matters beyond reasonable doubt.

[11] Of course if you find there was no motive to lie, then that does not follow that the accused is guilty of the offences. That simply means that that aspect of the evidence or the analysis is out of the picture. You still then go back to the evidence and look specifically at what evidence there is in relation to each of the counts.

[12] Another specific aspect of the evidence is the delay in bringing these charges members of the jury. There has been a long delay as you would be well aware, since the offences are alleged to have been occurring in the 80s to the time they were reported, and now to 2007 when they come to trial. In all cases where witnesses are talking about events that occurred a long time ago, you do have to consider the effect the delay may have had upon their memory, on the memory of all witnesses involved. It is common human experience and you would be aware of it as a matter of common sense, that time does have an effect on memory. Memory does fade over time. Remember also that you have seen the complainant giving his evidence at the age of 33, about things that happened when he was 13 and 14. So you have got to consider what effect that delay would have had on his recollection and the way in which he has given his evidence.

[13] Honest people do sometimes convince themselves that some incident occurred in the past in a particular way. You cannot ignore the effect that human imagination, emotions, prejudice or suggestion can have on memory over years. I think it is also common human experience members of the jury that sometimes things will stick in a person's mind and they never fade and they can be accurately recalled with very clear detail, and they can be sworn to sufficiently for a jury to accept and believe what they are saying and that the evidence is true. You have to consider all of those things when you are looking at the evidence in this case, because it is some almost 20 years past.

[14] Consider also one specific aspect of the delay is that the police have lost the ability to fully investigate the events and the ability to search for, for instance physical evidence or locate witnesses who may have been relevant, who may have had fresh memory at the time of these events. Of course it is not only the police that are affected members of the jury. The accused has lost the chance to establish facts and circumstances which may have helped him adequately test the complainant's allegations. Although he had no onus to do so, it is clear that if these matters were closer to the event he may have been in a position to make some enquiries and obtain material that would have been relevant to his defence. So you have to consider the effect, if any, the lost opportunity has had upon the ability of the accused man to meet the Crown case.

[15] There is particular significance of this in this case because of this issue about the camp, the Labour Day camp in 1988. You will be well aware that you have heard specific witnesses all called about the circumstances of who was present at that camp and the general circumstances surrounding it, with a view of course to establishing whether or not the accused man was present. It must be obvious that if this had been much closer to the event that witnesses' recollection of things would have been able to be more acute closer to the event. That there would have been evidence that could have been led with greater certainty to allow you and assist you in forming conclusions about it.

[16] I am not suggesting that there are definite people who would have been eye witnesses members of the jury, but I am talking about details of other peripheral and surrounding circumstances that would have clarified a lot of these matters, had they been closer to the time. Clearly it has had an effect on the state of the evidence that finally comes before you and it is an aspect that you have to consider as to what impact ultimately, it may have on your ability to make findings and to assess the evidence in this case. You have to assess the evidence on the basis that there has been this long period of time, and as I said, the impact on memory and the ability to call evidence before you.

[17] I have to also then give you the following directions of law, because of these particular aspects of the case, that is the long delay that has led to issues in regard to the evidence that can be called and the memories of witnesses. Because it has led to those potential problems with the evidence that can be called, you must be directed as follows. You need to be fully aware that as a matter of law it is regarded as dangerous to convict on the evidence of a complainant alone, unless after you have scrutinised the evidence with great care, considering all the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied of its truth and its accuracy on all the material facts. As you are well aware, the complainant is the only witness who can give you evidence of the actual events that happened. As a matter of law it is not necessary that there is separate independent evidence called in relation to the offences or the events. And of course, in matters of a sexual nature, it is not uncommon that the complainant is the only witness. But in any case where there is no other direct evidence to support a witness as to the events being committed, then you must be careful about the evidence, giving it complete and careful scrutiny for the potential for error.

[18] It is a matter for you to assess, but caution would suggest that there is a risk that some people may have motives or hidden reasons for falsely accusing people of crimes, and that the loss of time, the delay and the fact that that has affected the evidence that can be called in this case and the memories of those who have given evidence, must be uppermost in your mind when you carefully scrutinise this evidence. Test it for both honesty and reliability, being full aware as I said of the dangers that I have pointed out.

[19] I am not saying there is error, members of the jury, it is up to you. And if after subjecting the evidence to close scrutiny you are satisfied of its truth and its accuracy, then it is your obligation to act upon that satisfaction and bring in your verdict. But you must subject each charge to careful assessment and scrutiny, keeping in mind that direction.[36]

66 At the conclusion of her Honour's charge counsel for the applicant took exception to the directions given by her Honour as follows:

COUNSEL: ... we have a number of exceptions which are generally related to the one central topic and that is the Longman warning which we submit your Honour is, with respect, inadequate in a number of areas. Your Honour introduced the topic by talking about delay in complaint.

HER HONOUR: I don't think I did, but anyway, that was a separate issue.

COUNSEL: This is how the concepts were linked we submit.

COUNSEL: And your Honour said that it is quite "common human experience" that in effect sometimes ...

COUNSEL: People don't complain and your Honour with respect, that is stating it too highly. It's not - and it's not something that is required by the legislation itself. Whether it's common human experience or not, with respect, is debatable. The legislation - s 61(1) - really provides that your Honour if evidence is given, or a question is asked of a witness, statement made in the course of a question on evidence which tends to suggest there is delay in making complaint and so on, you must inform the jury that there may be good reasons why a victim of sexual assault may delay or hesitate in complaining about.

Your Honour there is an aspect, with respect, that is not required by the legislation and which we would submit is indeed debatable as a matter of common human experience. For your Honour to say it is common human experience is really to make a comment on facts in the course of giving the direction of law, so with respect we'd submit that ought to be corrected.

HER HONOUR: I hear that. I won't be making that correction because I don't accept that.

COUNSEL: Yes, if your Honour pleases. Your Honour said that it is also "common human experience" that sometimes things stick in a person's mind and can be retold faithfully. With respect, whether that is common human experience is again debatable and in our respectful submission, your Honour ought not to have put it that way, but more importantly and this is probably, with respect, the most unsatisfactory aspect that your Honour has put. Your Honour made what boiled down to an apology for the police by saying as part of what should have been a warning purely for the benefit of the man in the dock. Your Honour did say that the police have lost an opportunity to investigate, I'm paraphrasing. And that had no part, with respect, in a Longman warning, which is a warning which is for the benefit of the person accused of the crime. A judge of this Court has made similar, although not entirely the same remarks, in a case called R v MWL which is to be found, your Honour, at 2002 Vol 137 of the A Crim R 282

... As we say, similar remarks were made, similar although not exactly the same in this case. The Court was constituted by Chief Justice Phillips, Justices of Appeal Phillips and Buchanan and it was held that there was a miscarriage of justice in that case. We, with respect, invite your Honour to look at the case

... Your Honour also said, as part of this warning, what should have been a warning, that it is not uncommon that the complainant is the only witness.

COUNSEL: It may be, your Honour, but it has no part as a part of a warning which is, with respect, solely for the benefit of the accused and was meant to bring home to the jury the forensic disadvantage that an accused suffers as a result.

HER HONOUR: That is so, but of course it is a preface to the comments that are required to be made to them that it is not necessary at law to have a witness other than the complainant as to the events, and it is simply a precursor to that and I don't accept that it is an issue that would lead to any difficulties for the accused at all.

COUNSEL: The full effect of the warning must be brought home to the members of the jury and with respect had your Honour followed the terms of the required warning from Longman's case itself ..

HER HONOUR: But of course every case needs to be on its own facts Mr Priest.

COUNSEL: It does, and your Honour we're in heated and furious agreement with your Honour about that, and we say that when one considers that these allegations are in the main 20 years old it brings home the necessity for a strong warning with the benefit of your Honour's office behind it. And what your Honour has done, with respect, has significantly diluted the required warning in a number of aspects.

HER HONOUR: Yes, I hear the way in which you put it. As I say I don't accept that to be the case, and indeed far from being an apology for the police, the way in which I directed them in relation to the lost opportunity to investigate, was to draw their mind to the fact that they may not have at the end of the day sufficient evidence for the Crown to establish its case. And it's on that basis that it was put in those terms and then to say quite clearly, as I feel I did, that the accused was specifically hampered in relation to the one critical aspect of the dates of the camp etcetera. I will have a look at that case, and if I think it changes my mind I will indicate it.

Crimes Act s 61(1)(b) and Kilby v The Queen

67 The first complaint made by the applicant is that in giving the direction required by s 61(1)(b) of the Crimes Act 1958 the trial judge made comments of fact and gave directions which went beyond that required by the section in question. Upon the appeal both the applicant and the respondent agreed that at the relevant time s 61(1)(b) of the Crimes Act 1958 provided as follows:

(1) On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence -

(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge -

(i) must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it.

68 In the course of the trial the applicant's counsel cross-examined the complainant at some length regarding his delay in making complaint. The trial judge was thus obliged to inform the jury that there may be good reasons why a victim of sexual assault may delay or hesitate in making complaint. The judge complied with that obligation in the following terms, at [52]:

I must direct and warn you that common human experience does indicate that there may be good reason why victims of a sexual assault might hesitate or refrain from complaining. That can be particularly said in the case of children, where that child is alleged to have been assaulted by a person who was in a position of authority or trust in relation to that child.

**69 The applicant contends that there are several vices in the above passage, the first being that 'most of the content is comment dressed up as' a direction of law. It is argued that there is nothing to say that a judge must compulsorily warn a jury that common human experience indicates 'certain things' nor should the caution be extended to children who are alleged to have been assaulted by 'persons in authority'. Accordingly it is submitted that the direction went beyond what was proscribed by s 61(1)(b).

70 In my view there is nothing of substance in these complaints. Section 61(1)(b) requires the judge to 'inform the jury' that there may be good reason why a victim may delay in making complaints. The fact that she did so inform the jury in the light of 'common human experience' does not appear to me to have created any unfairness. Furthermore, the fact that the judge remarked that it could be 'particularly said' in the case of children where the alleged sexual abuser was 'in a position of trust' in relation to that child appears to me to not only state the obvious, but is a logical example of circumstances which may provide the background to why there 'may be good reason' why a victim may delay in complaining.

71 However, the applicant submits that even if the directions given pursuant to s 61(1)(b) were adequate they were not balanced appropriately by a proper Kilby direction as required by the circumstances of the case. In Kilby v The Queen Barwick CJ said:[37]**

It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given.

72 The effect of the enactment of s 61(1)(b) of the Crimes Act 1958 was considered by the majority in Crofts v The Queen:[38]

The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts.

Had the Victorian Parliament intended to overrule the practice followed in Australian courts, at least after Kilby, s 61(1)(b) would have been expressed in much clearer language than appears ...

Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness. The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false. So long as the purpose of the legislation, to rid the law of such stereotypes, is kept in mind and the terms in which the legislation is expressed are followed, judges striving to assist juries in their consideration of the facts are unlikely to fall into the kind of error that occurred in this case.

**73 The applicant argues that the directions given by the trial judge did not comply with the obligation to give a Kilby direction. It is argued that what she said was inadequate. Furthermore it is submitted that the direction was undermined by a number of comments that she made. The judge referred to the circumstances established by the evidence that the applicant was the scout master of the complainant and a mature adult, a friend of the complainant's father and the father of a friend of the complainant. She then said 'A child in that situation then you must consider may well be reluctant to complain for all sorts of reasons'. She said that the jury would have 'to look at the evidence' and the fact that the complainant did not complain in 'the whole context' and that the jury should 'look at it from the perspective of a 13 or 14 year old boy as he was at the time and consider' what they made of the evidence. She referred to the evidence of the complainant that he did not complain because he was scared of the applicant, when 'these things first happened', that he felt confused about it, that he felt it might be his fault, he felt ashamed and that the applicant was a man of some authority and that he felt unable to complain about it in that context. It is submitted that those remarks were 'clothed as legal directions'. Furthermore it is submitted that the judge failed to tell the jury that the delay in complaining lasted well into the adulthood of the complainant.

74 The Kilby direction given by the judge needs to be considered in the context of the whole of the directions given by her. Before giving the impugned direction the judge referred in some detail to the arguments put before the jury by counsel for the applicant as to the failure of the complainant to complain. She referred to a submission made by counsel that the 'very fact that he did not (complain) must strongly suggest to you that these allegations are not true'. She repeated a submission made to the jury on behalf of the applicant that the fact that the complainant 'continued to have contact' with the applicant was conduct which was 'totally inconsistent with the allegations being true'. A submission made by counsel for the applicant that it was 'improbable, unrealistic, that a boy in his position would have placed himself in the position where he must have known he was at risk of further sexual conduct' was repeated by the trial judge. The defence argument that the complainant had 'fabricated' the allegations was repeated forcefully by her Honour. In this context she said, at [8]:**

Members of the jury you may use lack of complaint in the assessing the question or not of whether a person's conduct is consistent or inconsistent with the allegations. That is entirely up to you to say whether in all the circumstances, the absence of complaint does constitute behaviour which is inconsistent with the happening of these events. You must determine in all the circumstances as you find them to be - it is simply one of the aspects of the evidence that you have to properly consider when you are assessing these particular charges. You have now heard the complainant, you have seen him give evidence. You have heard the allegations tested and you must reach your own conclusions taking into account those aspects of it to which you have been specifically directed by the defence in their submissions and through the evidence.

75 Although it would have been better for the trial judge to have directed the jury specifically that they were entitled to take J's delay in complaining into account when assessing his credibility and that such a delay may have cast doubt upon the reliability of his evidence, there does not seem to me to be any risk that in evaluating J's evidence and in determining whether to believe him, the jury were left in any doubt as to their entitlement to take into account the fact that the complainant had made no complaint at the earliest reasonable opportunity. The purpose of a Kilby warning is to ensure that a jury understands that failure to complain, or delay in complaining, may cast doubt upon the reliability of the evidence of a complainant in the particular circumstances of the case.[39] In my view the judge's directions, looked at as a whole, pointed out to the jury clearly that they were entitled to use lack of complaint in determining whether the failure to complain was inconsistent with the allegations made by the complainant and thus reflected upon his credit and/or his reliability.

76 It is clear, as is conceded by the respondent, that a Longman warning was required in the circumstances of this case. As the High Court stated in Longman:[40]

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.

77 As the trial judge pointed out in the course of the discussion following the exception taken by counsel as to the directions, there is no set formula for such a warning. Nevertheless where such a warning is necessary, the jury must be given the appropriate direction in unmistakable terms and with the authority of the judge's office. Furthermore, and as stated by Ormiston J in R v Mazzolini:[41]

... where a full Longman warning is required the preferable course is to direct the jury in substance that it would be dangerous or unsafe to convict unless, having scrutinised the relevant evidence with great care, they were satisfied of its truth and accuracy. The words "danger" or "dangerous" (or even "unsafe") seem to give to a warning the sense of urgency and emphasis it requires, and so has been used for many years and still is used where a précis is given of the required effect.

**78 Furthermore, the warning must refer to the circumstances which arise in the particular case and which require the warning to be given, and the judge is obliged to warn the jury of the dangers that have been caused by the identified circumstances. In this case the danger in question was the forensic disadvantage which the applicant suffered arising from substantial delay in complaint being made about his alleged criminal conduct.

79 I turn now to the gravamen of grounds 2A, 2B and 2C; that is, the submission by the applicant that the Longman warning given by the trial judge was insufficient to bring home to the jury 'the dangers lurking, and prejudice flowing to the accused'. The trial judge commenced her Longman warning by referring to the possible effect upon memory caused by a considerable delay. There can be no doubt in the circumstances of this case that an appropriate warning was called for to alert the jury to the risk that the complainant's evidence might be honest but erroneous. The trial judge did direct the jury that 'memory does fade over time'. She directed the jury that 'honest people do sometimes convince themselves that some incident occurred in the past in a particular way. You cannot ignore the effect of human imagination, emotions, prejudice or suggestion can have on memory over years'. She reminded the jury that they had seen the complainant give his evidence at the age of 33, about 'things that happened when he was 13 or 14'. She told the jury that they had to 'consider what effect that delay would have had on his recollection and the way in which he has given his evidence'.

80 However notwithstanding the fact that the trial judge gave such directions to the jury the applicant submits that the directions 'fell far short of warning the jury as to the potential unreliability of the evidence'. In particular, complaint is made that the trial judge, having told the jury that delay can have an effect on memory over years, went on to say 'I think it is also common to human experience, members of the jury, that sometimes things will stick in a person's mind and they never fade and they can be accurately recalled with very clear detail, and they can be sworn to sufficiently for a jury to accept and believe what they are saying and that the evidence is true'. It is submitted that the above comment undermined a direction that should have been for the benefit of the applicant, warning the jury of the prejudice flowing to the defence as a result of the effect of long delay upon memory.

81 In my view the remarks made by the judge in relation to the effect of time upon memory and recollections were no more than simple commonsense. The trial judge made it clear that the effluxion of time may have an effect upon memory. I see no deficiency in this part of her Honour's directions.

82 The trial judge next turned to give the jury directions as to the forensic disadvantage caused by the long delay. It is apparent that the circumstances of the case called for directions to be given to the jury as to the forensic disadvantage suffered by the applicant and caused by the long delay in the complainant making complaint, so as to avoid a perceptual risk of miscarriage of justice. As stated by Brennan, Dawson and Toohey JJ in Longman:[42]**

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 ... 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 ... and it was imperative that a warning be given to the jury.

83 As stated by Gaudron and Callinan JJ in Doggett v The Queen:[43]

... the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or (sic) more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.

84 In Crampton v The Queen[44] Gaudron, Gummow and Callinan said:

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.

85 Her Honour commenced her directions in relation to the forensic disadvantage suffered by the applicant by pointing out that one 'specific aspect of the delay is that the police have lost the ability to fully investigate the events and the ability to search for, for instance physical evidence or locate witnesses who may have been relevant, who may have had fresh memory at the time of these events'. Having referred to the police she then said, at [14]:

Of course it is not only the police that are affected, members of the jury. The accused has lost the chance to establish facts and circumstances which may have helped him adequately test the complainant's allegations. Although he had no onus to do so, it is clear that if these matters were closer to the event he may have been in a position to make some enquiries and obtain material that would have been relevant to his defence. So you have to consider the effect, if any, the lost opportunity has had upon the ability of the accused man to meet the Crown case.

She then stated that the loss of opportunity for the applicant 'to make enquiries and obtain material that would have been relevant to his defence' was of particular significance in this case. She then referred to the issues which had arisen in the trial as to whether or not the applicant was present at the Labor Day camp in 1988. She said 'It must be obvious that if this had been much closer to the event' that 'there would have been evidence that could have been led with greater certainty.' Her Honour then gave what might be said to be a conventional Longman direction about the danger of convicting on the evidence of the complainant alone without appropriate scrutiny. She gave what she described as a direction of law as follows, at [17]:

I have to also then give you the following directions of law, because of these particular aspects of the case, that is the long delay that has led to issues in regard to the evidence that can be called and the memories of witnesses. Because it has led to those potential problems with the evidence that can be called, you must be directed as follows. You need to be fully aware that as a matter of law it is regarded as dangerous to convict on the evidence of a complainant alone, unless after you have scrutinised the evidence with great care, considering all the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied of its truth and its accuracy on all the material facts. As you are well aware, the complainant is the only witness who can give you evidence of the actual events that happened.

Having said that, she told the jury that as a matter of law it was not necessary for separate independent evidence to be called in relation to the offences and then said:

And of course, in matters of a sexual nature, it is not uncommon that the complainant is the only witness. But in any case where there is no other direct evidence to support a witness as to the events being committed, then you must be careful about the evidence, giving it complete and careful scrutiny for the potential for error.

86 The applicant submits that there were a number of serious deficiencies in this part of the judge's directions as to the forensic disadvantage. In particular, it is submitted that by commencing this aspect of her directions with the statement that one aspect of the delay was that the 'police have lost the ability to fully investigate the events', the judge did not make it clear that the purpose of the warning was to warn the jury of the forensic disadvantage suffered by the applicant. In R v MWL,[45] the Court of Appeal gave consideration to somewhat similar directions. The trial judge in MWL had directed the jury as follows:

The difficulty in remembering, of course, applies not only to the witnesses, but it also applies to the accused. The delay also means that there has been no statement taken from any of the complainants soon after the events which they have alleged. The police were not brought into the act until 2000, so the police have lost the ability to investigate the matter soon after the events allegedly occurred, or locate possible witnesses who may be able to give relevant evidence. They have lost the chance of further questioning a particular complainant to ascertain whether their story is consistent or whether it is inconsistent.

Not only have the police lost that chance, but of course the accused has lost the chance to establish facts and circumstances that might help him to disprove -- I use disprove in a special way, because he has no obligation to disprove, but to, if you like, dispute the complainants' allegations and the more so when a number of the counts which originally were on the presentment have been amended by altering the time frames.

In relation to this part of the charge, Buchanan JA said:[46]

His Honour first instructed the jury that the delay similarly handicapped the police in investigating the complaints. I doubt that the jury would have interpreted that statement as one directed to efforts by the police to critically examine the complaints rather than gather further evidence supporting the complainants. In my view, the explanation of the difficulties imposed upon the defence by delay was significantly diluted by a statement, which the jury may well have construed as excusing any deficiencies in the Crown case.

**87 The applicant submits that the effect of the judge directing the jury that the police had lost the ability to investigate the events fully, similarly and significantly diluted the required explanation to the jury of the forensic difficulties imposed upon the defence by delay. Furthermore it is submitted that in so doing there was a risk that the jury might perceive the direction as in effect being an apology for deficiencies in the Crown case.

88 It will be recalled, however, that in the course of the discussion following exception being taken by counsel to reference to police investigations, the trial judge said that the direction was related 'to the lost opportunity to investigate' and was intended to draw to the mind of the jury the fact that there might have been insufficient evidence for the prosecution to establish its case. Unfortunately, I do not consider that the words used by the trial judge in her direction made that clear. In any event the reference to the lost ability of police to fully investigate the events was irrelevant to the issue of forensic advantage suffered by the applicant. Certainly the direction contained many if not all of the necessary components of an appropriate Longman warning. The jury were directed as a matter of law that it was dangerous to convict on the evidence of a complainant alone unless having scrutinised the evidence with great care and having considered all the circumstances relevant to the evaluation of the evidence and paying heed to the warning they were satisfied of the truth and accuracy of the material facts. This part of the warning complied with the direction referred to in Longman.[47] However, it was deprived of any great force by the introduction into the directions of the irrelevant matter of the lost opportunity of police to investigate.

89 What had to be made clear to the jury was the fact that it was because of the delay and the consequent disadvantage to the accused that such scrutiny was required. As Winneke P said in R v WEB:[48]**

This type of direction is calculated to bring to the forefront of the jury's mind the primacy of the warning that it would be dangerous to convict the accused on the unsupported evidence of the complainant in the circumstances of the individual case. It is the unusual circumstances which have put the accused at a disadvantage in the trial - and not the scrutiny of the complainant's evidence - which compel the warning of the dangers of convicting on unsupported evidence.

**90 Clearly those forensic disadvantages in this case included the lost opportunity on the part of the applicant to make enquiries at or close to the time of the alleged incidents. He had lost the ability to explore the alleged circumstances soon after the offences were said to have occurred. In relation to counts 1 to 5 the complainant was unable to identify the occasion on which the offences occurred with any specificity thus making it difficult for the applicant to establish an alibi or raise any defence other than a simple denial. The complainant could not be medically examined close to the time of the alleged offences of rape. None of these forensic disadvantages were the subject of directions. Furthermore I consider that there is weight in the complaint made by the applicant that the Longman warning was diluted by a number of statements made by the trial judge.

91 In my view and looked at as a whole, the directions given by the judge were far too equivocal to satisfy the requirement that the jury be given a warning, in an 'unmistakeable and firm voice' and which carried the imprimatur of the judge, of the danger of convicting the applicant in the particular circumstances of the case. The judge introduced her direction about the forensic disadvantage suffered by the applicant by reference to the loss of ability of the police to investigate fully the events in question. The necessity for the warning is that by reason of the long delay the fairness of the trial was necessarily impaired. By reason of that long delay the applicant had been denied the 'forensic weapons that reasonable contemporaneity provide'.[49] It is this disadvantage suffered by an accused which 'a judge must recognise and to which an unmistakable and firm voice must be given in appropriate directions'.[50]

92 The irrelevant reference to problems faced by police did not make those matters clear to the jury and indeed as is submitted on behalf of the applicant, may well have been interpreted by the jury as explaining and excusing any deficiencies in the Crown case. Furthermore, and although the judge did direct the jury in conventional terms that it would be dangerous to convict on the evidence 'of a complainant alone' unless the evidence had been scrutinized with great care, her Honour immediately thereafter stated that as a matter of law it was not necessary that there 'be separate independent evidence' and furthermore that 'in matters of a sexual nature, it is not uncommon that the complainant is the only witness'. In my view those remarks diluted the strength of the warning to the jury and detracted from the primacy of the warning which was compelled by the unusual circumstances which put the accused at a disadvantage at trial. The remarks detracted from the strength of the warning because the very point of such warning is to bring home to the jury the danger of convicting an accused person on the uncorroborated testimony of the complainant in circumstances such as those before the jury.

93 With great respect to the trial judge it appears to me that her Honour's directions had the effect of providing a balance between the interests of the prosecution and the interests of the applicant. The directions did not state clearly that the necessity for the warning arose because after many years delay the evidence of the complainant could not be tested adequately and that therefore the fairness of the trial was necessarily impaired. In those circumstances it appears to me grounds 2A, 2B and 2C are established.**

**94 The applicant submits first that the verdicts on counts 3 to 5 were 'nothing short of bizarre'. It is submitted that the evidence of the complainant was not credible and that the circumstances alleged by him were so unlikely that a reasonable jury ought to have entertained a reasonable doubt as to their occurrence. It is argued that despite J having been indecently assaulted previously (counts 1 and 2) he nevertheless returned to the applicant's farm on a number of occasions. It is argued that the evidence that the applicant took the complainant into a hayshed and told him to take down his pants and then penetrated his anus with his penis is not credible. It is submitted that the evidence of the complainant that he had the worst pain in his life from his backside as he drove home on his bicycle was not credible and the fact that J did not tell his parents of the forced sodomy was likewise incredible.

95 Likewise it is submitted that the evidence of the complainant as to counts 6 to 11 which relate to the Labor Day weekend of 1988 was so lacking in credibility that a reasonable jury ought to have entertained a reasonable doubt as to the veracity of the evidence. It is submitted that it is unlikely in the extreme that J would have isolated himself on camp with the applicant voluntarily if what he had said about earlier events were true. Furthermore it is submitted that there was 'a wealth of material' to support the applicant's contention that he did not attend the camp in 1988. It is submitted that there was no valid reason for rejecting the applicant's 'alibi' for the Labor Day weekend, supported as it was by objective evidence. On this basis it is submitted that counts 7 to 11 are unsafe and unsatisfactory and that acquittals ought to be entered on those counts.

96 The issue to be determined by an appeal court in consideration of whether a verdict is unsafe and unsatisfactory is;**

... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[51]

The answer to that issue in this case rests substantially upon the question of whether or not it was open to the jury to accept the evidence of the complainant. As is submitted by the respondent, the credit of the complainant was central to the case. No attack was made upon his credit on the basis of prior inconsistent statements, or a propensity to tell untruths, nor was it suggested that he had any motive to tell untruths against the applicant. The argument advanced before us by the applicant is that certain aspects of the evidence of the complainant were unlikely. In relation to counts 3 to 5 which relate to the alleged assaults of the complainant, it is submitted that the circumstances of the alleged attack 'are so unlikely that a reasonable jury ought to have entertained a reasonable doubt as to its occurrence'. It is submitted that those unlikely features were that it was unlikely that any perpetrator would risk injury by forcible sodomy without lubricant, that an attack in broad daylight in a shed of open-sided construction whilst the victim was screaming was unlikely and that the humiliating and painful nature of the attack alleged would have provoked some complaint from him. In my view all of these matters are appropriate matters to have been considered by the jury. Arguments were addressed to the jury as to these matters. They had the benefit of seeing the complainant give evidence and were entitled to draw conclusions as to the manner in which he might have responded to the alleged attacks upon him and to his credibility. I do not consider that the evidence of the complainant was so intrinsically improbable that the jury could not have acted upon it.

**97 However the applicant relies upon a specific matter in relation to the Labor Day camping weekend at Loch Sport. First it is submitted that various aspects of the complainant's evidence as to the attacks upon him during the Labor Day weekend were highly improbable. In my view it was open to the jury to accept the evidence of the complainant as to the circumstances of the alleged attacks upon him over the course of the Labor Day weekend. However, specific reliance is made by the applicant upon the fact that there was evidence before the jury that the applicant was not present at the Loch Sport camp on the Labor Day weekend of 1988. It is submitted that there was no valid reason for the jury to reject the applicant's evidence that he was not present that weekend. There was evidence before the jury that the scout records recorded that the applicant had 'given notice from the end of 1987 as he is unable to carry on as a scout leader but may be able to help out as an assistant scout leader on a restricted basis'. However, there was also evidence before the jury that the records recorded that 'scout leaders are desperately needed for 1988'. The records also revealed that the applicant had his apologies recorded for the annual general meeting of the scout group on 22 March 1988, the week after the camp. These records do not establish unequivocally that the applicant did not act as a scout leader at the 1988 camp. The complainant gave sworn evidence that the applicant was at that camp. In my view it was open to the jury to accept the evidence of the complainant in all the circumstances. I do not consider that the verdicts were unsafe or unsatisfactory.

98 However, for the foregoing reasons I am of the opinion that grounds 2A, 2B and 2C have been established. I would grant the application for leave to appeal, determine the appeal instanter, allow the appeal and order that there be a retrial.

99 Finally, I agree with the conclusion reached by Ashley JA that the time of commencement of a criminal proceeding in the County Court or the Supreme Court is when the presentment is filed. In my view s 4(4) of the Crimes (Criminal Trials) Act 1999 makes that apparent by providing that there is a proceeding on a presentment, and further by effectively providing that a proceeding brought on an earlier presentment is stayed, and that a new proceeding commences, upon the filing of a fresh presentment.

100 I agree with Ashley JA, for the reasons given by him that the correct interpretation of s 607 of the Crimes Act is that s 61 of the Crimes Act applies in its amended form to a trial on a presentment which is filed, or filed-over an earlier presentment, subsequent to the commencement of the Crimes (Sexual Offences) (Further Amendment) Act 2006.**

101 I have had the advantage of reading in draft the judgments of Ashley and Kellam JJA. I agree that by reason of the deficiency in the Longman[52] warning the orders proposed by Kellam JA should be made. And, whilst the position on the matters of compliance with the requirements of s 61(1)(b) of the Crimes Act 1958 and Kilby v The Queen[53] may be close to the line I agree with Kellam JA's conclusion thereon. There remains the question whether s 61(1)(b) applied in its amended form to the trial of this proceeding. This question was raised by the Court, the parties, and the Court below, having proceeded on the assumption that the amendments were not applicable on the basis that the proceeding had commenced prior to 1 December 2006 when the amendments came into force; see s 607 of the Crimes Act. In his judgment Ashley JA has called into question the correctness of that assumption, being of the view that s 61(1)(b) applied in its amended form because the proceeding commenced, for the purpose of s 607, when the new presentments were filed over. In my opinion that view is correct. Otherwise I would say nothing as to how on a re-trial the judge might proceed under s 61 as amended.

[1] R v Taylor [2006] VSCA 53.

[2] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[4] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

[5] Archbold, Criminal Pleading, Evidence and Practice, 1995, para 1-229. See generally, paragraphs 1-221 to 1-229.

[6] [1921] VicLawRp 86; [1921] VLR 489 (FC), 491. See also R v Conley [1916] VicLawRp 77; [1916] VLR 639, 645-646 (Madden CJ).

[7] There is now the very different s 359A, Crimes Act.

[8] For example, Summary Offences Act 1966 (Vic), s 21(2).

[9] For a summary offence - Magistrates' Court Act, s 26(4).

[12] That is, why a power to grant declaratory relief in respect of a question of evidence or procedure should be exercised only in exceptional circumstances. Its exercise might result in needless delay, and in the fragmentation of a criminal proceeding. There, a declaration was sought by the informant, in a separate proceeding, in the course of a committal hearing.

[13] That being the language of s 26(1).

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