Court of Appeal (Qld)|2006-12-22|Before: Williams and Keane JJA and Philippides JSeparate reasons for judgment, of each member of the Court, each concurring as to the orders made
Williams and Keane JJA and Philippides JSeparate reasons for judgment, of each member of the Court, each concurring as to the orders made
Catchwords
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - GENERALLY -
appellant convicted by jury of one count of indecently
dealing with a child
under 12 years of age and in his care - learned trial judge provided jury with
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - GENERALLY -appellant convicted by jury of one count of indecentlydealing with a childunder 12 years of age and in his care - learned trial judge provided jury withtranscript of the evidence attrial - whether appellant deprived of fair trialas a result of jury being provided with transcriptCRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - DISCHARGEAND EXCUSING FROM ATTENDANCE - after pre-recorded evidencewas played to jury,juror passed note to learned trial judge - note said that one juror'sstepdaughter had alleged that she was rapedseveral years prior but stepdaughterhad not pursued charges - juror's note said that juror could still givedefendant "benefit ofthe doubt" - appellant's counsel at trial sought dischargeof jury - whether learned trial judge erred in refusing to discharge juryinthese circumstancesCRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
- GENERAL
MATTERS - appellant argued the case called for a warning of the kind referred to
in Robinson v The Queen - nature of warning in Robinson v The
Queen and warning in Longman v The Queen in light of Tully v The
Queen - circumstances in which these warnings are required - whether such a
warning was required in this caseCriminal Law (Sexual Offences) Act
1978 (Qld), s 4AEvidence Act 1977 (Qld), s 93AJury
Act 1977 (NSW), s 55CCriminal Code 1899 (Qld), s 210, s
632 Abbott v Western Australia [2005] WASCA 42
(2005) 152 A Crim R 186, cited
Bromley v The Queen [1986] HCA 49
(1986) 161 CLR 315, citedCarr v The
Queen [1988] HCA 47
(1988) 165 CLR 314, citedDriscoll v The Queen [1977] HCA 43
(1977) 137
CLR 517, consideredLongman v The Queen [1989] HCA 60
R v Myles [1997] 1 Qd R 199, citedR v NZ (2005) 63 NSWLR
628
[2005] NSWCCA 278, citedR v Rawlings [1995] 1 All ER 580,
consideredR v Taousanis [1999] NSWSC 107
(1999) 146 A Crim R 303,
consideredR v TN [2005] QCA 160
(2005) 153 A Crim R 129,
consideredRobinson v The Queen [1999] HCA 42
(1999) 197 CLR 162,
consideredRPS v The Queen [2000] HCA 3
(2000) 199 CLR 620, citedTully v The
Queen [2006] HCA 56, consideredWebb v The Queen [1994] HCA 30
(1994) 181 CLR
41, cited
Judgment (299 paragraphs)
[1]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - GENERALLY - appellant convicted by jury of one count of indecently dealing with a child under 12 years of age and in his care - learned trial judge provided jury with transcript of the evidence at trial - whether appellant deprived of fair trial as a result of jury being provided with transcript
[2]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - after pre-recorded evidence was played to jury, juror passed note to learned trial judge - note said that one juror's stepdaughter had alleged that she was raped several years prior but stepdaughter had not pursued charges - juror's note said that juror could still give defendant "benefit of the doubt" - appellant's counsel at trial sought discharge of jury - whether learned trial judge erred in refusing to discharge jury in these circumstances
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - appellant argued the case called for a warning of the kind referred to in Robinson v The Queen - nature of warning in Robinson v The Queen and warning in Longman v The Queen in light of Tully v The Queen - circumstances in which these warnings are required - whether such a warning was required in this case
Director of Public Prosecutions (Queensland) for the respondent
[28]
**[1] WILLIAMS JA: All relevant facts are fully set out in the reasons for judgment of Keane JA and I will not repeat them.
[29]
[2] One of the grounds of appeal was that the trial judge erred in providing the jury with a transcript of the evidence at trial. It was submitted that he had no power to do that. In my view that submission cannot be sustained. There is no legislative provision preventing a judge from giving the jury a transcript of evidence, and the trial judge is in control of procedure during the trial. It must however be recognised that to date juries in Queensland have not usually been given copies of the transcript of evidence.
[30]
[3] Consequent upon a report of the New South Wales Law Reform Commission the Jury Act in that State was amended in 1987 to insert s 55C providing as follows:**
[31]
"A copy of all or any part of the transcript of evidence at a trial or inquest may, at the request of the jury, be supplied to the members of the jury if the judge or coroner considers that it is appropriate and practicable to do so."
[32]
[4] In R v Taousanis [1999] NSWSC 107; (1999) 146 ACrim R 303 Sperling J summarised the position in New South Wales prior to 1987. It is worth quoting the passage because it also accurately states what has generally been the practice in Queensland:
[33]
"It is my understanding that, prior to the 1987 amendment, juries were never provided with a transcript of evidence. If they were, that was a rarity. Juries were told that, if they wished to be reminded of any part of the evidence it would be read to them. This was frequently done, usually by the trial judge reading the relevant evidence to the jury, sometimes at considerable length."
[34]
[5] The reason for the practice developing was undoubtedly the fact that until relatively recently a transcript of the evidence was not available at the time the jury retired to consider their verdict. All that the court could rely on in those circumstances were the judge's notes of the evidence. Lord Taylor of Gosforth CJ summed up the position in England when giving his reasons in R v Rawlings [1995] 1 All ER 580, where he said at 582-3:
[35]
"When a jury wishes to be reminded of a witness's oral evidence, the conventional practice has been for the judge to read out to them the relevant part of his note of the witness's testimony, sometimes even the whole of it. The practice developed when there was no other record of the evidence apart from notes taken by judge and counsel. Ever since shorthand writers became able to take a verbatim note of all questions and answers and produce a typed transcript, the practice has remained the same. The judge assists the jury from his notes. This is partly, no doubt, because the shorthand note will not usually have been transcribed when a jury in retirement requires help. But even if it has, for example, by a daily transcript or if a witness adopts a written statement as part of his or her evidence, it has been thought undesirable to give the jury in permanent form one part of the total evidence lest they give it disproportionate weight or attention."
[36]
[6] That last observation echoes the statement of Gibbs J in Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 542 where he said with respect to an unsigned record of interview:
[37]
"The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight."
[38]
[7] But it is clear that the trial judge does have discretion to provide the jury with a transcript of evidence. Sperling J said in Taousanis at 305:
[39]
"There is an inherent or implied power in this court to control its own processes. The power is hedged in by statute, rules of court, precedent and practice. I do not doubt, however, that a judge has, apart altogether from the operation of s 55C of the Jury Act, the discretionary power to make available to the jury a transcript of any part of the record of the proceedings to the extent that such proceedings have been conducted before them"
[40]
**[8] All the members of the New South Wales Court of Criminal Appeal in Lowe [1997] NSWSC 160; (1997) 98 A Crim R 300 appear to have been of the view that the trial judge had such a discretionary power in addition to the statutory power conferred by s 55C. In that case, at the request of the jury, the trial judge permitted a portion of the transcript to be given to the jury. The real question was whether the accused was deprived of a fair trial because all of the evidence relevant to the point in issue was not given to the jury. Hunt CJ at CL (with whom Ireland J agreed) made it clear that the appropriate test was whether or not what was done had deprived the accused of a fair trial. In the circumstances those judges concluded that, though all of the relevant transcripts should have been provided, there had in fact been no mistrial. Smart J dissented, holding that the error lay in not providing all of the relevant transcript. Finally, it should be noted that the reasoning of Sperling J in Taousanis also emphasised the importance of ensuring that principles of fairness were not breached, and that the jury were given a balanced account of the evidence.
[41]
[9] I understand from conversations with judges in other jurisdictions that in New Zealand juries are commonly given a transcript of the evidence, and that it has also been done on occasion in Victoria. There can be no doubt that a trial judge in Queensland has the power to do so in the exercise of discretion. The overriding considerations must be that of ensuring the jury are in the best position to arrive at a true verdict, and ensuring that the accused receives a fair trial.
[42]
[10] In the present case the jury was given all of the transcript (edited so that only admissible evidence was included) and in consequence it could not be said that there was any imbalance. In the circumstances I have come to the conclusion that the appellant has not demonstrated that he was deprived of a fair trial, or a reasonable chance of acquittal because the jury was provided with a transcript of all the evidence.
[43]
[11] But it does not follow that transcripts of evidence should be given to juries during their deliberation as a matter of course. The decision whether or not to do so involves an act of judicial discretion which must be exercised according to relevant principles. As already noted there must not be any imbalance in favour of one side rather than the other. That does not mean that part only of the evidence at trial may not be supplied; but if part only is supplied, all evidence on the particular point should be included.
[44]
[12] Further, in determining whether or not to exercise the discretion, the statement of Gibbs J in Driscoll must be kept in mind. There will always be a danger that in a particular case a jury will focus undue attention on particular statements in a written transcript rather than on evaluating the whole of the evidence.
[45]
[13] Having a judge (or associate) read to the jury, after a request, hours of evidence from the transcript is hardly the best way of allowing the jury to evaluate that material. Such a lengthy recitation of evidence is often mind-numbing and hardly the best way of ensuring that the jury properly considers and evaluates the relevant evidence. Where such a request has been made there is more reason for the trial judge to exercise discretion in favour of providing the jury with a transcript of the requested evidence. But that should not be done automatically; the discretion would have to be exercised having regard to all relevant considerations.
[46]
[14] The trial judge would of course always be responsible for editing the transcript so that only admissible evidence is contained in the document which goes to the jury. There will be many other issues to be considered such as the number of copies given to the jury (there is a view held by many judges that there should not be one each but that there should be more than one copy), whether in a very lengthy trial the provision of a full transcript would overwhelm the jury, and the time at which the transcript will be given (daily basis or when they retire). The length of the trial would also be a relevant consideration; the shorter the trial the less a jury is likely to be benefited by having a transcript. A judge should also give some weight to the fact that the traditional position has been that the jury should not have the transcript.
[47]
[15] Giving a copy of the transcript to the jury does not relieve the judge of the responsibility in the summing up of drawing the attention of the jury to the relevance of evidence, its importance, and the use that may be made of evidence.
[48]
[16] One further observation should be made. There are a number of decisions of this Court dealing with the question whether or not a statement by a child admitted pursuant to s 93A of the Evidence Act 1997 (Qld) should be allowed to be taken by the jury into the jury room during their deliberations (reference in that regard can be made to R v H [1999] 2 QdR 283, R v C [1999] QCA 246; [2000] 2 QdR 54, R v S [2002] QCA 57 and R v DAJ [2005] QCA 40). The general trend has been to say that the jury ought not have such a statement in the jury room; but if a transcript of all evidence was provided to the jury then the reasoning in those cases may need to be revisited. As already noted the overriding requirement is that what is done be fair and balanced so that the trial of the accused person is in no way prejudiced while affording the jury the best opportunity of arriving at a true verdict.
[49]
[17] Most of the foregoing is no more than observations on the problem. There is no doubt that a trial judge has power to provide the jury with a transcript with all or part of the evidence, but there are good reasons for concluding that it should not be done as a matter of course. The discretion whether or not to do so should be exercised in the light of all of the circumstances surrounding the particular trial. In determining how the discretion should be exercised regard should ordinarily be had to the matters I have mentioned above, but they are by no means the only relevant considerations.
[50]
[18] What is important for present purposes is that the appellant was not deprived of a fair trial because the jury was given a transcript of the evidence.
[51]
[19] On all other issues I agree fully with all Keane JA has said in his reasons. I agree with the orders proposed.
[52]
[20] KEANE JA: On 20 September 2006, the appellant was convicted upon the verdict of a jury of one count of indecently dealing with a child who was under 12 years of age and in his care in contravention of s 210(1)(a) of the Criminal Code 1899 (Qld). The appellant was sentenced, on 21 September 2006, to 12 months imprisonment, suspended after six months for an operational period of two years.
[53]
[21] The appellant seeks to challenge his conviction on a number of grounds. They are:**
[54]
2. The Learned Trial Judge erred in failing to discharge the jury or alternatively in failing to discharge the juror who disclosed that his step-daughter had been raped.
3. The Learned Trial Judge erred in providing the jury a transcript of the trial.
4. The Learned Trial Judge erred in failing to give a Longman/Robertson (sic) warning.
5. That upon the jury seeking directions as to the effect of the defence counsel's conduct of cross-examination, the trial judge:
[55]
That in view of the evidence in the s 93A recording of the complainant describing the person who assaulted her, such description being inconsistent with the physical description of the appellant, the conviction is unsafe and unsatisfactory."
[56]
[22] I shall discuss these grounds of appeal after summarising the evidence and the aspects of the conduct of the trial which are relevant to the grounds of appeal.
[57]
**[23] The complainant was born on 19 November 1992. The charge against the appellant was that, on a date unknown between 11 April 2001 and 18 April 2001, at Nambour he licked the complainant's vagina. It was alleged that, at the time, he had the child under his care in that he was looking after the child when her mother's boyfriend had been admitted to hospital following a serious accident which led to the loss of his arm.
[58]
[24] The first complaint was made by the complainant in June or July 2004 to two of her schoolmates in grade 6. In a record of interview tendered under s 93A of the Evidence Act 1977 (Qld), one of these school friends, KD, said that "this boy licked her fanny". In pre-recorded cross-examination, KD confirmed that the complainant had spoken of "a boy" not a man. KD said that he and the other school friend told the complainant to tell her mother what had happened.
[59]
[25] The complainant's mother, R, gave evidence that, in June or July 2004, the complainant said to her "Mum, you know when we were down at the flat at Maleny - at Nambour when [J] lost his arm, [the appellant] raped me." When asked what had happened, the complainant said that he "took her into the second bedroom and pulled down her pants and licked her vagina".
[60]
[26] On 28 July 2004, the complainant was interviewed by police. The record of that interview was tendered pursuant to s 93A of the Evidence Act. The record of interview contained the following passages:**
[61]
"Do you know why you're here today?-- Um, because the man hurt me.
[62]
Yeah. Yeah. And do you want to tell me more about that? Can you tell what happened?-- Um, we were staying the night at my step-father's apartment where he used to live in, um, Queensland.
[63]
Mmm-hmm?-- That's it. Um, and he lost his arm that night and my - my brother, um - I don't know how old he was then but, um, he got into [J's] tapes and that----
[64]
Yep?-- And, um, later - I don't know when - probably 8.30 or something----
[65]
Mmm-hmm?-- ----um, [the appellant] told us to go to bed. [Indistinct] [KC] went to bed before me and he held my hand and walked into the room and sat me on my bed. I thought he was going to help me unchange----
[66]
Yep?-- ----and he pulled my undies down and, um, spread my legs apart and licked in between.
[67]
Did he? And where did he lick?-- Um, just on the - on the outside of my, um, virginity.
[68]
Yep. Yep, okay. What do you call your virginity?-- Um, the wall that's, um, before your vagina that - um, when you have, um, a relationship with your partner it breaks. If you, um are physically in love with them.
[69]
And he's walked you into his room, the spare room? Yeah? Okay, then. And so - okay. We're all in the room. Okay. So, now explain the - the rest to me. Okay. So, he's held your hand and you've walked into the room. And then----?-- And he sat me down.
[70]
Yeah?-- Um, and then he's, um, spread my legs apart when he took my pants down. And, um, he licked the wall of my vagina.
[71]
Okay. Okay. And what's the vagina?-- Um, the part where you have sex with, um, a male friend.
[72]
Okay. That's fine. All right. So, um, so, he's licked your vagina and then what?-- Um, after he realised that he said, "Sorry, don't tell your parents. Don't tell."
[73]
So - okay. So, once he's licked your vagina - how many times?-- Probably twice.
[74]
Mmm-hmm. Okay. And then what happened after that?-- Um, he pulled my pants back up again.
[75]
Okay. And what - what else were you wearing besides your pants?-- I was wearing my nightie.
[76]
Okay. All right. So, um, where was your nightie at that point?-- I was wearing, um, it on my body. Um, it's - I've still got it, now.
[77]
And has it got pictures on it?-- No. It says "Angel Dream", um, "Heavenly".
[78]
Mmm-hmm. Okay. And when this all happened how old were you?-- Eight probably.
[79]
Eight. And how do you know that?-- Um, from now, 'cause my age is 11 I've counted back three more years to try and - oh, it would be nine probably. Nine to eight.
[80]
Okay. And - and how - why would you count back three years?-- Um, because that's, um - it - 'cause it happened three - like - so, like, it was near three years and I don't know if it's four years or more but, yeah.
[81]
Mmm-hmm. Do you remember if anything special happened around that time? 'Cause earlier you were talking to me, um, just in general. Okay. And we'll just go through this and I'll just make sure that I've got it - got it all right. Okay?--Yeah.
[82]
Okay. So, your step-father - it all happened at your step-father's apartment and his name is [J]. Do you know his surname?-- [M].
[83]
[M]. Okay. And his apartment; do you know where that was?-- Um----
[84]
Do you remember what State it was in?-- Oh, um, Namba.
[85]
Namba. Namba. Do you remember what State that's in?-- Queensland.
[86]
Queensland. Okay. All right, then. Um, and you said something about your father of your step-father, was it, lost his arm?-- Yeah.
[87]
What - what's the relevance of that?-- Um, that night - like, that's when he went into hospital - hospital.
[88]
Yeah?-- Um, because his arm got chopped off by a mincer. At [T].
[89]
Oh, okay. So, are we still talking about the same time? So the - the night----?-- Yeah and he----
[90]
----that [J] lost his arm?-- ----went into hospital. Yeah.
[91]
This is when this [the appellant] was baby-sitting you?-- Yep.
[92]
Is that right? And is that the same night that, um, this happened with [the appellant]?-- Yeah.
[93]
All right, then. Um, had you met [the appellant] before?-- Um, yeah.
[94]
Okay. So, you've met [the appellant] before. How many times do you think?-- Probably five to seven, I suppose.
[95]
Can you describe what he looks like to me?-- Yep, he's got, um, blondy, sort of, white, hair.
[96]
Yep, that's okay. Just how he was on the night. Okay. How you remember him?-- Yeah. Um, he was wearing, like, a Hawaiian, sort of, shirt.
[97]
Yeah. Yep?-- Um, and I think a pair of jeans or something like that.
[98]
Do you - how else would you describe him?-- Ah, blue eyes.
[99]
What - how - what size would you say he is?-- Mmm, probably two and a-half metres, I'm not sure.
[100]
What about - if we talk about somebody - do you know what I mean if I ask about somebody's build? So if we said they were skinny----?-- Yeah.
[101]
----they were medium or they were fat?-- He was skinny.
[102]
He was skinny. Okay. When you say his hair was blonde - blondy-white?-- Yeah.
[103]
Would you call the - what would - length would you say he had?-- Mmm, probably 25 centimetres.
[104]
Yep. And you can - don't have to give me a measurement. You could just say it in long, short?-- Ah---
[105]
----shaved?-- ----pretty short. It was, like, about there.
[106]
Yep. Did you notice anything particular about, um, his skin. You're saying it was white and tanned. Do you remember anything else about his skin?-- No.
[107]
No? That's okay. Um, okay. And we got what is - my, um - do you remember why [the appellant] was looking after you that particular night?-- Because Mum had to, um, go and, um, [indistinct] to [J] because that's when he lost his arm.
[108]
Oh, okay?-- And she couldn't get to him if she was looking after us.
[109]
Oh, okay. Yep, okay. And so, um, had he ever looked after you before that? Do you remember?-- Um, no, I don't we - he has.
[110]
Right. Okay. How did you come to be here today to talk to me today about this? Do you remember?-- Um, two of my friends, they, um, mentioned rape. And - and I said, "I think - I know - I think that's happened to me", and they said, "Tell us, tell us, tell us," And that. And, um, if they hadn't said to say - "Say this to your mum", I wouldn't be here, now.
[111]
Oh, okay. So, your two friends that you told ----?-- Yeah.
[112]
----how do you know them?-- Um, they're at my old school in Coffs Harbour.
[113]
Yeah. Okay. And how much would you say you've spoken to Mum about it?-- Probably four to five times.
[114]
Mmm-hmm. Yep. Okay. And just - one thing I wanted to ask, while we were talking about age, how old - how old do you think [the appellant] would be?-- Um, probably 21 to 27.
[115]
Mmm-hmm. Yep. Okay. That's fine. All right, then. Is there anything else that you'd like to tell me about it?-- No, I don't have anything else.
[116]
Okay. So, I just want to recap that it only happened once?-- Yeah.
[117]
And it only happened on the night that Daddy lost his arm?-- Yeah.
[118]
**[27] It was common ground that the complainant's reference to "Daddy" was to R's then boyfriend, J, and that the complainant's description of the appellant was inaccurate.
[119]
[28] On 12 April 2001, R's then boyfriend, J, had suffered an injury in an industrial accident as a result of which his arm was amputated. At this time, R and her children, the complainant and her older brother, KC, were living in a house at Maleny. The appellant was living with them. J was living in a unit at Nambour.
[120]
[29] R gave evidence that she first met the appellant at the end of March 2001 when he came to her house at Maleny having been introduced to her by a mutual friend, DM. She said that J's accident occurred on 12 April 2001. She said that, when she was told of J's injury, she picked up her children from school, came back to Maleny and then went to J's Nambour unit to be close to the hospital when J was being treated. The children stayed at the unit that evening with the appellant while R visited J in hospital. The children were in bed when she returned from the hospital. The appellant told her that KC had put a pornographic video on. She and the children stayed at the unit in Nambour for three nights before returning to Maleny. The appellant stayed on at the Nambour unit for a few more days. The appellant returned to Maleny and left a few days after J went there after he was released from hospital.
[121]
[30] R said that she did not see the appellant again until "May, June, July, somewhere there" in 2006 when DM had asked her to help him move house. She also said that in May or June the following year, her eight week old baby was abducted. As a result of this incident, the complainant received counselling.
[122]
[31] J gave evidence confirming that, on 12 April 2001, he had been involved in an industrial accident as a result of which he had lost his arm. He said that he was in hospital from 12 April 2001 to 17 April 2001 when he was discharged.
[123]
[32] The complainant's uncle, G, gave evidence that he did not look after the children following the accident. He only learned of the accident a week after it had occurred.
[124]
[33] Constable DRH, a police officer attached to the Child Protection Investigation Unit, gave evidence that she interviewed the complainant shortly after the child's complaint had been reported to the police. In cross-examination, Constable DRH agreed that she had interviewed the appellant on 28 September 2004, and that he said that he did not commit the offence, he did not go to Nambour but remained in Maleny on 12 April 2001 and that he was not with R's children that night. Constable DRH agreed that the appellant was in his mid-40s and had brown hair and brown eyes. Constable DRH also agreed that the complainant did not identify the appellant from a photoboard although R and J had identified him. The record of the appellant's interview with the police of 28 September 2004 was not tendered at the trial.
[125]
[34] The appellant did not give or call evidence at the trial.**
[126]
[35] When the jury had been empanelled, the learned trial judge asked the jurors if there was any reason why any of them could not act impartially. No concerns in this regard were then expressed by the members of the jury. However, after the complainant's pre-recorded evidence was played to the jury, a note was passed to the judge from the jury. It read:
[127]
"Your Honour, in 2004, my stepdaughter alleged that she was raped at or about Ferny Grove Train Station when she was about the age of 14. We reported this to police at Ferny Grove, but as our daughter was adamant that she did not want to pursue the matter, the police could do nothing. Although I was livered (sic) at that time about that particular incident, I feel that I can give the defendant in this case the required 'benefit of the doubt'. I thought I should make you aware of this so that if that situation should later come to notice, I would not like to jeopardise this case."
[128]
**[36] The appellant's counsel then applied for the discharge of the jury. The learned trial judge did not seek clarification from the jury as to what discussion of the contents of the note had occurred amongst the jurors. The appellant's application was rejected. His Honour treated the note as, in truth, an indication of the juror's impartiality.
[129]
[37] At the beginning of the trial, the learned trial judge indicated that he was minded to provide the jury with edited copies of the transcripts of evidence given at the trial. Counsel for both sides opposed this course, taking the view that the proposed course was inappropriate because the trial had occupied only three days and involved a limited number of issues. Nevertheless, his Honour made the transcripts of the evidence available to the jury for them to take into the jury room. The jury also took into the jury room with them the transcripts of the statements made under
[130]
s 93A of the Evidence Act and a transcript of the complainant's pre-recorded evidence.
[131]
[38] In the course of his summing-up to the jury, the learned trial judge provided the jury with a note in the following terms:**
[132]
(1) The jury must accept the judge's directions about the law. After that, the facts and the verdicts are entirely for the jury.
[133]
(2) The burden of proving an offence is always on the prosecution.
[134]
(3) An accused person is presumed to be innocent and is entitled to be acquitted, until an offence is proved beyond a reasonable doubt.
[135]
(4) As offences are made up of several core parts, then each one has to be proved beyond reasonable doubt.
[136]
(5) Any verdict must be the verdict of every member of the jury. It must be unanimous.
[137]
(6) [The appellant] chose not to give evidence. That proves nothing. The prosecution case is not strengthened. Draw no inference against him.
[138]
(7) (a) The evidence is the testimony in court and the exhibits, including the recordings.
[139]
(b) It is for the jury to accept or reject any part of any witness's evidence.
[140]
(a) Any complaint to [the complainant's] friends or mother is not proof of what happened. Does it show consistency, or otherwise?
[141]
(b) The court routinely pre-records the evidence of children, make no inference of guilt against [the appellant]. The procedure does not affect in any way, the weight of the evidence, or its capacity to prove anything.
[142]
(9) [The complainant] is the critical witness for the prosecution. Consider her evidence carefully. Do you accept, beyond reasonable doubt, that her allegation against [the appellant] is honest and reliable?
[143]
(10) Take the passing of time into account, in assessing all the witnesses.
[144]
(11) If you read the transcript of the recordings, or the evidence in court, remember to check any cross-examination or re-examination, or the evidence of other witnesses, to get the complete picture.
[145]
(12) Has the prosecution proved beyond reasonable doubt.
[146]
(a) That [the complainant] was under 12 years (not in dispute).
[147]
(c) That such an act was indecent (not in dispute, if it happened)
[148]
(d) That the touching was unlawful - (not in dispute, if it happened)
[149]
(e) It happened at Nambour between 11 April and 18 April, 2001.
[150]
(13) The issue is - do you accept, beyond reasonable doubt, that the licking happened at Nambour, between 11-18 April 2001, as [the complainant] says?
[151]
Guilty or not guilty of indecent dealing with a child under the age of 12 years?"
[152]
**[39] The jury retired to consider their verdict at 1.14 pm on 20 September 2006. At 9.29 pm, they sought assistance from the learned trial judge, including the following question: "Can questions asked by defence counsel that suggest certain facts and answered affirmatively then be accepted as evidential fact?"
[153]
[40] His Honour told the jury that something put by counsel is of no evidentiary value unless the witness' answer is in the affirmative. The jury then put a further question: "The bit that if under cross-examination and at the point the question is ended, if there is no further question after that, is that acceptance that defence have accepted it ...".
[154]
[41] Before the learned trial judge could answer this question, a further question was then asked by the jury: "... but what I guess is - does that mean defence have accepted it. They've asked the question and had an answer of an affirmative and therefore haven't then followed with any other questions to question the answer."
[155]
[42] To this question, his Honour responded with an elaboration of his Honour's response to the first question. The appellant emphasises that there was no clear and simple statement by his Honour that the answer to the last question was: No.
[156]
[43] At the end of the evidence, the appellant's counsel asked the learned trial judge to give the jury a special warning. The kind of warning in question has been discussed in the decisions of the High Court in Robinson v The Queen[1] and Longman v The Queen.[2] The application made to the learned trial judge was expressly for a "Longman/Robinson direction" which counsel for the appellant at trial described as a "dangerous to convict direction". It is fair to say that the application was made on the appellant's behalf squarely on the basis of Longman v The Queen, no specific additional support was claimed from Robinson v The Queen, the two cases being "linked in that sense of the warning", as the appellant's counsel at trial accepted. On the appellant's behalf, it was said that the appellant first became aware of the complaint against him on 28 September 2004. Counsel for the appellant asserted that a "potential alibi which might have been available to my client through another witness has been lost", but the appellant was unable to identify any witness (who might have supported his assertion that he was in Maleny on the night that the offence allegedly took place in Nambour) who was no longer available because of the delay involved in the making of the complaint. The learned trial judge rejected the application made on behalf of the appellant. His Honour ruled "that it has indeed been a delay, a little over three years, but I would not categorise it in the relevant sense as a long delay. As it happens, there is no evidence of any actual detriment such as missing witnesses or documents".
[157]
[44] His Honour gave a direction that the complainant's evidence should be carefully scrutinised. His Honour said:**
[158]
"Now, it's not for me to take over your role in any way in judging what you make of [the complainant's] evidence, including the cross-examination of her in the pre-recording. But obviously enough she, of course, is a critical witness for the prosecution, isn't she? I mean, she's the central figure by a long way. So that's why I say to you, you must consider her evidence carefully. That word 'carefully' is not meant to imply, as it were, some criticism of her in the sense that you say, 'Oh, be careful of him' or something like that. I don't mean that. I just mean because of the central feature and the importance of her evidence to the prosecution case, you really, of course, ought to look at it pretty carefully when you're considering to accept her or not. And, therefore, the question is do you accept beyond reasonable doubt that her allegation against [the appellant] is honest and reliable.
[159]
Now, those words are chosen deliberately because the important thing in any criminal trial is whether or not the jury is persuaded beyond reasonable doubt of the actual charge happening. It doesn't mean to say that the jury has to be persuaded of every word in the whole trial, do you know what I mean? The jury might reject bits or pieces of all sorts of witnesses, but nonetheless they're persuaded on the evidence they do accept that an offence is proved. So that's why I don't say to you you have to accept every single thing that [the complainant] says, but what you do have to accept, if you're going to convict this man, is that her allegation, that is the sexual misconduct, the licking of her vagina, did happen because you find that she's honest and reliable. And, of course, if you have doubts about that, if you have a doubt about her honesty or her reliability, that's the accuracy of what she says, well, then, [the appellant] would be entitled - is entitled to the benefit of that doubt.
[160]
So the focus is on the actual allegation and whether you're persuaded beyond reasonable doubt that that is proved, and that, of course, as I'm saying is intimately linked as to whether or not you're persuaded beyond reasonable doubt that she is both honest and reliable.
[161]
The passing of time. Well, it's now five and a bit years, isn't it, since [J] lost his arm. You can see from the chronology the passing of time. It is a bit less than four years, I think, until [the appellant's] arrest when he would have known what he was facing in a sense of an accusation by the child, and the other dates are there.
[162]
I wonder if I really have to tell you, of course, because it's not my experience or skill, it's commonsense I think, that the passing of time means inevitably some fading of precision of memory. No doubt, you would be familiar with that, but I just want to draw it to your attention because your task is to ask yourselves, I think, whether or not the confidence you may or may not have in the evidence is affected by the passing of time; that is to say, someone is telling you an account of things that didn't happen very recently, but happened a good while ago because you're going to have to make judgments about what evidence you accept and so on. So I think you should take that into account. It's up to you, of course, what you make of it."
[163]
[45] In the course of his summing-up to the jury, the learned trial judge also reminded the jury of points made by the appellant's counsel. His Honour said:
[164]
"Now, the point of all those things, of course, in Mr Smith's address is that his client has been prejudiced, particularly by the passing of time and he, at least suggests, the failure for the police to investigate some other fairly obvious matters. He was pretty firm about the things he said about [R], in effect, perhaps not his word, but the effect of it was, I think, unbelievable, you shouldn't believer her. He suggests, for example, that you would be influenced by her adding an allegation about the porn video later to the police, her change, he says, between Maleny and Nambour, from Coffs Harbour to the Queensland Police and he suggests you would mind her description of visits to the hospital vague, not frank. Where did she sleep on the critical night? Not sure. That she discussed some of those things with [the complainant] before the second police interview with [the complainant]. So he says, in effect, be very, very cautious and don't accept her evidence as being truthful.
[165]
With regard to [the complainant] he asks you to remember the description of his client to the police. I think it was blond hair, in the 20s and she didn't identify him on a photoboard, a board of pictures of himself and some other men and, so, are you 100 per cent sure, in effect, that he was the person at all involved in whatever may have happened and [the complainant] had spoken to her mother and her evidence was influenced by her mother's role. Once again, the mother.
[166]
Coming to the impressions that you would have of [the complainant], I don't think I need go to the details, but the effect of his submission was to you that both on the police tape 93 - what they call the 93A tape, the police interview, and the pre-recording, you would not have a good impression of her manner. Didn't seem upset, he suggests; appeared to have rehearsed the interview with the police; that she talked to her mother, she admitted, four or five times. She says there was a rape discussed in the playground, but the boy, [KD], don't confirm that. Was the oral sex she said she saw on the video really a reason for this allegation? So he says there's lots of things to be drawn from her interview wit the police, not necessarily favourable to her. The pre-recording, there is a difference with the dates, Maleny or Nambour and the role that she had in her own mind, the importance about the kidnapping of the baby, which I think she mentioned before even mentioning her own case and that is mentioned again later on towards the end of Mr Smith's address.
[167]
So he says, in other words, because of those sorts of things you really won't be persuaded at the very least beyond reasonable doubt that her allegation is true, particularly because of the coaching role played by the mother and then he did suggest to you that - and this is something, I think, which is approaching a suggestion that the story might be fabricated - children don't always have a good appreciation about telling the truth. So that's another observation to you.
[168]
In all, he says, well, you shouldn't accept [the complainant's] evidence and that there's - there are sign posts all around the evidence in the cross-examination about her accuracy and, really, the final large issue that he raises for you is that the baby kidnapping, [JM], the connection between [DM] and [the appellant], they were all things that this child knew and it is reasonable to think that that is at least an inference could be drawn as to why she did these things, has made this complaint. As he says to you, if the prosecution has not excluded the reasonable possibility that that scenario, that inference is there, then his client is entitled to be acquitted and he asks you to consider all that as a reason for having a doubt about the conclusion - about the guilt of his client.
[169]
The large theme, I think, of Mr Smith's address to you was of a positive attack on lots of things through cross-examination and so on, but really leading to the submission, finally, that at the very least you will have, he says, a reasonable doubt about this and, hence, acquit his client."
[170]
[46] I turn to discuss the arguments agitated on appeal. I will address those arguments by reference to the grounds of appeal.
[171]
**[47] The answers to the questions whether the juror who disclosed that his or her step-daughter had been raped should have been discharged, as well as the broader question whether the jury should have been discharged, depend on whether the juror's statement gave rise to a reasonable apprehension on the part of a fair minded and informed member of the public that the juror, or the jury, has not discharged or will not discharge his or her or their task impartially.[3]
[172]
[48] On behalf of the appellant, it is contended that the juror's note was an indication that the juror in question was concerned as to his or her ability to perform his or her role impartially and may have formed a view adverse to the appellant without hearing all of the evidence. It is also contended that the learned trial judge erred in failing to seek clarification as to what the juror in question had communicated to the other jurors.
[173]
[49] In my respectful opinion, the learned trial judge was correct in holding that the note was not evidence of partiality on the part of the juror in question. At the worst, the note reflects a, perhaps overly scrupulous, concern on the part of the juror to do his or her duty. Furthermore, even if it be assumed that the juror in question had discussed the subject matter of the note with other jurors, it is difficult to see how the discussion of such matters could enliven, in a fair minded and informed member of the public, a reasonable apprehension that the jury would not discharge this task impartially. A fair minded and informed member of the public would know that some victims of sexual offences decide not to complain about those offences and that such a decision may be of real concern to the victim's loved ones. A fair minded and informed member of the public would not, however, entertain an apprehension that a parent of such a victim, or an acquaintance of such a parent, would be so moved by a spirit of vengeance upon all persons charged with a sexual offence as to be unable or unwilling to determine rationally and fairly upon the evidence in a particular case whether a particular charge was made out against a particular accused. A fair minded and informed member of the public would not, without more, form such a low opinion of his or her fellow citizens. The contrary view would hardly be consistent with the fundamental premises of the system of trial by jury. For example, it has never been thought that the friends or family of victims of crime, who have been thus "touched" by crime, should thereby, and without more, be regarded as unfit for jury service.
[174]
**[51] It is convenient to deal with these grounds together.
[175]
[52] In relation to ground 3, it is not argued by the appellant that it was not open to the learned trial judge, as a matter of power, to proceed as he did in making transcripts of the evidence available to the jury. There is ample support for the course taken by his Honour in other jurisdictions.[4] The argument for the appellant was directed to whether the discretion to provide transcripts to the jury was properly exercised in this case in which the central issue was in such short compass that this course was not warranted. In this regard, I agree with what has been written by Williams JA.
[176]
[53] In relation to ground 5, the appellant focussed his submissions on the questions raised by the jury as to what might properly be taken from the course of cross-examination. Implicit in the appellant's argument was the notion that the questions raised by the jury were generated by an inordinate level of attention on the part of the jurors to the transcripts with which they had been provided.
[177]
[54] In my respectful opinion, the jurors' questions which prompted the directions to which ground 5 relates cannot be assumed to have been the product of excessive attention by the jury to the transcript. The questions which were posed by the jury were not related to particular questions and answers in the transcript, but to what is to be made generally of the course of question and answer in the course of cross-examination.
[178]
[55] The principal argument advanced on behalf of the appellant under the rubric of ground 5 was that the jury may have reasoned that, if counsel for the appellant at trial did not dispute the answer given by a witness, then the appellant could be taken to accept the truth of the witness' answer.
[179]
[56] In the course of dialogue between jury and Bench, the third question, which is at the heart of the concern raised by the appellant, may not have been seen as the starkly silly proposition which appears on the written page of the appeal record. This may explain his Honour's failure to give a blunt and direct response to the third question posed by the jury. This question, evidently formulated "on the run" should, in all fairness, be regarded as an instance of someone thinking out loud. His Honour asked to be given a specific example of the juror's concern; and no example was given. In these circumstances, it is difficult to see that any particular part of cross-examination actually posed a real problem for the jury.
[180]
[57] Having regard to the observations made by the learned trial judge during the course of his summing-up to the jury, which were emphatically to the effect that the defence case was that the complainant "was either not honest or not telling an accurate story", that "she and her mother had their heads together", and that the jury "shouldn't accept [her] evidence", one can be confident that the jury well understood that, just because a line of cross-examination stopped, it did not follow that the cross-examiner accepted the witness' response as truthful.
[181]
[58] In summary, in relation to ground 3, in my respectful opinion, the course taken by the trial judge was within his Honour's discretion, and there is no reason to think that a miscarriage of justice resulted from his Honour's decision to provide the jury with the level of assistance he gave to them. In relation to ground 5, the absence of a more direct negative response to the third question posed by the jury was entirely unlikely to prejudice the appellant's prospects of an acquittal. Grounds 3 and 5 should be rejected.**
[182]
**[59] The appellant argued that the case called for a warning of the kind referred to in Robinson v The Queen.[5] On the hearing of the appeal, no separate argument was addressed to this Court by reference to the decision of the High Court in Longman v The Queen.[6] It is convenient to discuss these two decisions together in relation to the appellant's contention that the learned trial judge erred in failing to warn the jury that it would be dangerous or unsafe to convict the appellant in this case.
[183]
[60] Both the occasion for, and the content of, the Longman warning are described in the joint judgment of Brennan, Dawson and Toohey JJ in Longman v The Queen:**
[184]
"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer ([1987] AC, at p 141). That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) (Ante, pp 31-32, 42-44, 56-57, 71-72)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."[7]
[185]
[61] Robinson v The Queen[8] was concerned more particularly with s 632 of the Criminal Code. It provided:
[186]
"(1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.
[187]
(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.
[188]
(3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses."
"If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint."
[191]
[63] The High Court held that s 632 was to be construed on the basis that:
[192]
"s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence".[9]
[193]
The category of present relevance is the evidence of child complainants in cases of alleged sexual abuse.
[194]
[64] On this basis, the High Court went on to say that, once the above is established with respect to s 632(2):
[195]
"its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect.
[196]
Sub-section (2) negates a requirement, either generally or in relation to particular classes of case, to warn a jury 'that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness'. That does not mean, however, that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirement considered in Longman. Moreover, the very nature of the prosecution's onus of proof may require a judge to advert to the absence of corroboration ...
[197]
As the dissenting judgment in the Court of Appeal pointed out, there were particular features of the case which demanded a suitable warning. Without seeking to describe these features exhaustively, they included the age of the complainant at the time of the alleged offences, the long period that elapsed before complaint, which in turn meant that it was impossible for a medical examination to verify or falsify the complaint, and the inconsistency in some aspects of the complainant's evidence as to whether penetration occurred. A curious feature of the case was the absence of any conversation of any kind, on the evening in question or later, between the complainant and the appellant, about the appellant's conduct. There was no threat, and no warning to the complainant not to tell anyone. The complainant and the appellant maintained a harmonious relationship. There was no suggestion of any earlier or later misconduct by the appellant towards the complainant. An important aspect of the inconsistency and uncertainty about the matter of penetration was that the complainant said he was asleep when the first act of penetration occurred, and that he woke up while it was going on. Finally, some features of the history of complaint may have indicated a degree of suggestibility on the part of the complainant.
[198]
Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt. That warning should have referred to the circumstances set out above, and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances."[10]
[199]
**[65] As will be seen directly, in Tully v The Queen,[11] of the justices in the majority, Crennan J, with whom Heydon J agreed, supported a view of the decision in Robinson v The Queen whereby the warning is only required as an aspect of a sufficient direction to the jury where there is a perceptible risk of miscarriage of justice arising by circumstances in addition to the absence of corroboration, of the evidence of a child complaining of sexual abuse. As is apparent from the last sentence of the passage cited from the judgment in Robinson v The Queen in the preceding paragraph, the warning is to be given by reference to the circumstances that are perceived to give rise to that risk. Callinan J, the other member of the majority in Tully v The Queen, took a view similar in effect to the view of Crennan and Heydon JJ, but was at pains to emphasise that Robinson v The Queen should not be regarded as an exceptional case, and that, in Tully v The Queen, counsel for the appellant at trial had not sought a Robinson warning. What is clear from the decision in Tully v The Queen, where no "dangerous to convict" warning was given, is that such a warning is not required merely because the Crown case depends on the testimony of a child complainant whose evidence is uncorroborated.
[200]
[66] In R v TN,[12] as Tully v The Queen was designated in this Court, I had expressed the view that, in Robinson v The Queen, the particular features of that case, which were such as to demand a warning, went beyond the circumstance that the complainant was a child at the time the offences occurred. I took those circumstances to be identified in the passage from the judgment in Robinson v The Queen which I have set out at paragraph [64] above.
[201]
"Similarities to Robinson: When the foregoing principles are kept in mind, it is my view that the errors of the trial judge in the present case are clear. The case was analogous to Robinson. The Court of Appeal erred in concluding otherwise.
[202]
It is true that there were peculiarities in the evidence in Robinson to which, of necessity, this Court referred in explaining its decision in that case. As this Court said, there were 'particular features of the case which demanded a suitable warning' (Robinson[1999] HCA 42; (1999) 197 CLR 162 at 170 [25]. See also Longman[1989] HCA 60; (1989) 168 CLR 79 at 91). Nevertheless, each case will contain features that are special. It would be a mistake to treat the decision in Robinson as if the warning required in that case was confined to the facts disclosed there or facts that were very similar. The case law on judicial warnings does not progress by perceived similarity amongst the facts of particular cases but by reference to the dangers of miscarriages of justice that particular facts serve to illustrate.
[203]
In Robinson, there were inconsistencies and a 'curious feature' of the evidence as well as a 'long period that elapsed before complaint' (Robinson[1999] HCA 42; (1999) 197 CLR 162 at 170 [25]). There was also the approximation of the ages of the complainant and the accused and evidence of the circumstances of schoolboy talk of sexual matters in which the accusation against the accused was first made. Clearly, such features called for a judicial warning to the jury that drew attention to them and of 'the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt' ((1999) [1999] HCA 42; 197 CLR 162 at 171 [26]). This is why, in Robinson, this Court held that it was necessary for the judge to give a warning 'in terms which made clear the caution to be exercised in the light of those circumstances' ((1999) [1999] HCA 42; 197 CLR 162 at 171 [26]).
[204]
In the present case, however, there were also a number of circumstances that gave rise to dangers similar to those in Robinson (cf reasons of Hayne J at [87]-[89]). The complainants, at the time of the alleged offences, were roughly the same ages (the complainant in Robinson was eight years old at the relevant time). The delay between the alleged offences and the first complaint to the child's parent was comparable. In Robinson, the delay was three years. This was described by this Court as a 'long period' ((1999) [1999] HCA 42; 197 CLR 162 at 170 [25]). The delay in the present case extended still further, after the complainant had moved with her mother and brother to another State. In each case, the delay extinguished any opportunity of contemporaneous medical examination of the complainant that might have revealed evidence to inculpate or exculpate the accused. Moreover, in the present case the one objective feature that the jury might have regarded as inconsistent with the accusation of many acts of full penile and digital penetration was the complainant's intact hymen. It would have been open to the jury to accept that this was consistent with the appellant's version of events. I agree with the reasons of Callinan J that a court should focus on the principle stated in Robinson and not on factual similarities or differences that inevitably arise. However, it is necessary to refer to the similarities to demonstrate the error of Keane JA in suggesting that Robinson was truly exceptional and suggesting that it is only in such a case that a judicial warning need be given. This is not what Robinson said and it is not the legal principle for which it stands.
[205]
The most important similarity between the dangers existing in Robinson and in this case, that called forth the need for a warning to scrutinise the complainant's evidence with great care, was the absence of objective, reliable confirmatory evidence to support the complainant's testimony. True, there was evidence from the complainant's mother about circumstantial features of the case. There was also evidence of the complainant about the mole and tattoos which she saw on the appellant's body. But this evidence did not prove the actual offences. It was not inevitably inconsistent with innocence. Essentially, as in Robinson, conviction of the appellant depended on acceptance of the evidence of the complainant alone."[13]
[206]
[68] It may, and indeed must, be readily accepted that this Court should "focus on the principle stated in Robinson and not on factual similarities or differences that inevitably arise"; but when one asks what was it about the circumstances in Robinson v The Queen and Tully v The Queen which "called forth the need for a warning to scrutinise the complainant's evidence with great care", it appears that, in the dissenting view of Kirby J in Tully v The Queen, it was "the absence of objective, reliable confirmatory evidence to support the complainant's testimony", the circumstance that "as in Robinson, the conviction of the appellant depended on acceptance of the evidence of the complainant alone". But if one thing is clear about the decision in Robinson v The Queen, it is that it does not stand for the proposition that a warning must be given in every case where a Crown case of sexual assault depends on the uncorroborated evidence of a child complainant. So much is clear, not only from the very reasons of the High Court in Robinson v The Queen,[14] but also from the reasons of the majority in Tully v The Queen and, indeed, from the reasons of Hayne J, the other member of the dissenting minority in Tully v The Queen. Hayne J said:
[207]
"The issues thus presented for the jury to decide were issues arising from the facts that (a) the complainant was very young at the time of the alleged offences, (b) the complainant was still a young person when she gave evidence, (c) about four to five years had elapsed between the time of the alleged offending and the complainant giving her evidence at trial, (d) because time had elapsed between the alleged offending and medical examination of the complainant, the medical evidence could neither support nor contradict the allegation that there had been sexual penetration and (e) the offences were alleged to have occurred in a family setting that had since broken up but was one in which the complainant alleged that she feared the appellant both during and after the relationship had ended.
[208]
Stated in abstract terms the factual issue for the jury was - do you accept the complainant's evidence as establishing the elements of each offence beyond reasonable doubt? Stated in more concrete terms, the issue was - do you accept the evidence of a young person about particular events of sexual misconduct, occurring in the family setting described, and said to have occurred, unwitnessed, some years ago, when she was aged between eight and 10 and which medical examination can now neither verify nor falsify? (That statement of the issue is not proffered as a formula that could have been adopted in instructing the jury about the real issues in the trial of the appellant. It is too compressed to be used for that purpose, at least without a deal of amplification and explanation. It is put forward as no more than a convenient summary of the information that had to be given to the jury by the trial judge.)
[209]
When the issues in the trial are understood in this way, it is evident that, contrary to what was held in the Court of Appeal (TN(2005) 153 A Crim R 129 at 140-141 [56]-[58]), the present case was not to be distinguished from Robinson. What Robinson, and Longman, hold is that there are cases where there is a perceptible risk of miscarriage of justice if the jury is not warned of the need to scrutinise the evidence of a complainant with care before arriving at a conclusion of guilt (Robinson v R[1999] HCA 42; (1999) 197 CLR 162 at 171 [26]; Longman v R[1989] HCA 60; (1989) 168 CLR 79 at 86). That is not because complainants in sexual cases, as a class, are to be treated as intrinsically untrustworthy. Section 632(1) of the Criminal Code (Q) precludes such reasoning. And s 632(2) does away with the former requirement to direct a jury that it would be unsafe to convict an accused on the uncorroborated evidence of the complainant (cf Evidence Act 1906 (WA), s 36BE considered in Longman[1989] HCA 60; (1989) 168 CLR 79 at 87-89). But those sub-sections do not prevent a judge from making a comment on the evidence given in the trial 'that it is appropriate to make in the interests of justice' ( (Q),
[210]
s 632(3)). It is the interests of justice that dictate whether a warning should be given.
[211]
Lengthy delay in making a complaint is often an important reason for concluding that a warning should be given. But as Robinson shows, delay measured in decades (as it was in Longman) is not the only reason for concluding that it is appropriate in the interests of justice to warn a jury of the dangers of acting on the uncorroborated evidence of a complainant. That is why the convenient shorthand description of a warning as a 'Longman direction' will mislead if it is understood as requiring that a warning be given only if the facts of the instant case are generally similar to those that were considered in Longman.
[212]
It is the nature of the issues that were to be decided by the jury in this case - the real issues in the case - that required a warning. The issues identified earlier in these reasons are not materially different from those that arose and were considered in Robinson. It was necessary for the trial judge to point out to the jury the need, when deciding those issues, to scrutinise the complainant's evidence with care before convicting the appellant.
[213]
Once it is recognised that the trial judge must decide what are the real issues in the trial, and tell the jury, in concrete terms, what those issues are, the purpose of a judge giving to the jury a warning, like those considered in Longman and Robinson, is more apparent. It is a warning given to the jury about how they are to decide one or more of the real issues in the case. If the real issues are identified for the jury in concrete terms, as they should be, the warning will evidently relate to one or more of those issues."[15]
[214]
**[69] In the present case, the delay in making a complaint was not unexplained; the time which elapsed between the alleged offence and complaint did not mean that "medical evidence could neither support nor contradict the allegation" of a licking of the complainant's vagina. The nature of the alleged assault was such that evidence of this kind would never have been available. The appellant was not denied the opportunity to advance the case that he had been in Maleny on the night when the offence was alleged to have occurred. There was no suggestion that any witness who might have supported that case was unavailable at trial because of the delay. The important point for present purposes is that no member of the High Court in Tully v The Queen, other than Kirby J, gave support to the view that the warning was required by the mere circumstance that the Crown case depended on the uncorroborated testimony of a complainant child. That circumstance, according to s 632(3) of the Criminal Code, is not a basis for such a warning by the trial judge. To the extent that it was proper for the jury to have entertained a doubt about the reliability of the complainant's evidence in this case because her evidence was the uncorroborated evidence of a complainant child in a case of sexual abuse, the risks involved in acting upon that evidence were no more apparent to a judge than they would be to a jury.
[215]
[70] In Tully v The Queen, the discussion of this issue by the justices, other than Kirby J, treated Longman and Robinson as linked.[16] The majority view was that the circumstances of that case were not such as to require the warning required by Robinson v The Queen.
[216]
[71] In the reasons of Callinan J, the following passage appears:**
[217]
"In support of the submission that the Court of Appeal erred in not holding that the trial judge should have given a specific warning with respect to the possible unreliability of the complainant's evidence, the appellant argued that s 9 (Section 9 provides: 'Presumption as to competency (1) Every person, including a child, is presumed to be - (a) competent to give evidence in a proceeding; and (b) competent to give evidence in a proceeding on oath. (2) Subsection (1) is subject to this division.') of the Evidence Act provides a rebuttable presumption only as to the competency of a child to give evidence, and that if s 632 (Section 632 provides: 'Corroboration (1) A person may be convicted of an offence on the uncorroborated testimony of
[218]
1 witness, unless this Code expressly provides to the contrary. (2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness. (3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.) of the Criminal Code (Q) proscribed a warning, as, it was contended the Court of Appeal held, then no trial judge could ever make a comment reflecting on the reliability of a witness, regardless of the nature of the case, provided that a child or other witness as the case might be, was a competent witness. This, it was added, was in variance with what has been held by this Court on numerous occasions (The appellant cited the following cases on that point: Kelleher v The Queen[1974] HCA 48; (1974) 131 CLR 534 at 564-569; Bromley v The Queen[1986] HCA 49; (1986) 161 CLR 315; Carr v The Queen[1988] HCA 47; (1988) 165 CLR 314; Longman v The Queen[1989] HCA 60; (1989) 168 CLR 79; B v The Queen[1992] HCA 68; (1992) 175 CLR 599; ; ; (2001) 208 CLR 343; ; The appellant again relied upon , contending that the Court of Appeal failed convincingly to distinguish it, and that it was not an exceptional case in any relevant respect.
[219]
It is to Robinson therefore that I now turn. In order to decide that case the Court had to consider s 632 of the Criminal Code, which was in the same form then as it now is except that the word 'persons' has been substituted for 'complainants' in sub-s (3).
[220]
With respect to sub-s (2) the Court (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ) said this ((1999) [1999] HCA 42; 197 CLR 162 at 168-169 [19]- [21]):
[221]
'Sub-section (2) is to be understood in the light of common law rules which developed by way of qualification to the general principle stated above. Since an accused person could be convicted on the evidence of one witness only, the law was required to address the problem of unreliability. Such unreliability could arise from matters personal to the witness, or from the circumstances of a particular case. The law requires a warning to be given 'whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case' (Longman v The Queen[1989] HCA 60; (1989) 168 CLR 79 at 86. See also Bromley v The Queen[1986] HCA 49; (1986) 161 CLR 315 at 319, 323-325; Carr v The Queen[1988] HCA 47; (1988) 165 CLR 314 at 330). However, as was held in Longman v The Queen ((1989) [1989] HCA 60; 168 CLR 79), in relation to a similar Western Australian provision, the sub-section is not directed to such a general requirement. Rather, it is aimed at a more specific rule, by which the common law identified certain classes of case where evidence was considered to suffer from intrinsic lack of reliability. Although the classes were not closed, they included certain well-established categories. Thus, in Carr v The Queen ((1988) [1988] HCA 47; 165 CLR 314 at 318-319), reference was made to 'the rules which oblige a trial judge to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice, the victim of a sexual offence and the sworn evidence of a child'. It will be noted that the present case fell into both of the second and third categories. The reasons for those categories were discussed in such cases as ((1989) ; at 91-94) and ((1992) ; at 616). They included what are now rejected as 'stereotypical assumptions' ( at 336).
[222]
Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence, its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect.
[223]
... That does not mean, however, that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirement considered in Longman. Moreover, the very nature of the prosecution's onus of proof may require a judge to advert to the absence of corroboration.'
[224]
It is upon the statements of principle in Robinson that a court should focus, rather than upon a comparison of the facts of it with the facts of the case before the Court. The features present in Robinson are certainly not a factual catalogue of the particular facts which will require a Longman direction in other cases. Nor was it, regrettably, a particularly exceptional case. The Court of Appeal took too narrow a view in this case of the principles for which Robinson stands. Furthermore, it was not a valid point of distinction that the appellant in that case had given evidence at his trial, whereas this appellant, had, as he was entitled to do, remained silent.
[225]
That having been said, I am unable however to find that there were facts or circumstances in this case, or in the conduct of it, and having regard particularly to the appellant's failure to ask for it, that demanded that a Longman direction be given. In my opinion Keane JA was right to place some weight on the complainant's evidence of the distinctive marks upon the appellant's lower body, even though the evidence of them from the complainant may arguably have fallen short of corroboration in a strictly legal sense. The jury heard both the complainant's explanation for her delay, an explanation which was plausible, and the appellant's attack upon it. They also heard that it was after the appellant had ceased to contact the complainant and threaten her, albeit some considerable time afterwards, but when the complainant, her mother and brother were living in New South Wales, that the complainant told her mother for the first time, something of the appellant's molestation of her. The complainant's tender age, her likely embarrassment, the pressure upon and threats of the appellant to her, his ability to carry them out, and the shift from Queensland to New South Wales beyond the appellant's immediate reach, together, it seems to me, are capable of explaining much, if not all, of the delay. That the appellant chose not to ask for a Longman direction, and that, as has been regarded as relevant by this Court (Doggett v The Queen (2001) 208 CLR 343 at 356 [51] per Gaudron and Callinan JJ) since Robinson, such delay as did occur here seems unlikely to be such as to have deprived the appellant of any means or capacity to defend himself, or otherwise to meet the case for the prosecution, taken with the other matters to which I have referred mean that the Court of Appeal was not wrong to conclude that a Longman direction was not imperative there.
[226]
Accordingly I am of the opinion that although the Court of Appeal may have erred in some respects in its distinguishing and analysis of Robinson, the trial judge here was not, in the circumstances, bound to give a Longman warning."[17]
[227]
[72] Crennan J, with whom Heydon J relevantly agreed,[18] emphasised that the need for a judicial warning that it would be unsafe to convict the accused had to be found in the perception of a risk of a miscarriage of justice where the risk arose for reasons, apparent to the judge but not the jury, beyond the mere fact that the prosecution case depended on the uncorroborated evidence of a child complainant. Crennan J said:
[228]
"The issues in this appeal and the relevant facts are set out in the reasons of Callinan J. I agree with the conclusions of Callinan J that the Court of Appeal of Queensland was right to refuse to intervene on the ground that there was a miscarriage of justice (Criminal Code (Q), s 668E) because the trial judge did not warn the jury in accordance with Longman v The Queen ((1989) [1989] HCA 60; 168 CLR 79) and was also right to decide that there was no error in the trial judge's directions in respect of uncharged acts. I have nothing to add to what Callinan J has said in his reasons in relation to uncharged acts. My reasons for agreeing with Callinan J's conclusion that no warning in accordance with Longman was required are as follows.
[229]
The appellant contended that the trial judge's directions to the jury on the necessity to scrutinise the complainant's evidence were neither adequate nor sufficient to discharge her function. Callinan J has set out relevant passages from the trial judge's summing up to the jury (Reasons of Callinan J at [113]-[116]) which obviates the need for me to do so.
[230]
It was not in dispute that it was the duty of the trial judge 'to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make' (Criminal Code (Q), s 620(1). The relevant legislation is set out in the reasons of Callinan J at [121], and footnotes 109 and 110) and that a trial judge must give a warning to the jury 'whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case' (Longman v The Queen[1989] HCA 60; (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ, citing Bromley v The Queen[1986] HCA 49; (1986) 161 CLR 315 at 319, 323-325 and Carr v The Queen[1988] HCA 47; (1988) 165 CLR 314 at 330; followed in Robinson v The Queen[1999] HCA 42; (1999) 197 CLR 162; Crampton v The Queen[2000] HCA 60; (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343). The appellant contended that the trial judge should have warned the jury in accordance with Longman that it would be dangerous to convict the appellant on the complainant's evidence alone, because of the appellant's forensic disadvantage in attempting to marshal a defence as a result of the delay between the dates of the offences alleged and the preliminary complaint ( (Q), distinguishes between a 'complaint' and a 'preliminary complaint') made by the complainant to her mother, unless the complainant's evidence was scrutinised with great care. No redirection requiring the trial judge to give such a warning was sought at trial by the appellant.
[231]
It was accepted by the appellant that s 4A(4) of the Criminal Law (Sexual Offences) Act 1978 (Q) proscribed a warning due to delay in making a complaint in relation to a sexual offence, if delay were the only reason said to oblige the giving of a warning. It was also conceded at the hearing of the appeal that the delay in question of between two and two and a quarter years between the offences, which were the subject of the appeal against conviction, and complaint in April 2002, was not a delay of the same order as occurred in Longman (more than 20 years), Crampton v The Queen ((2000) [2000] HCA 60; 206 CLR 161) (19 years), or Doggett v The Queen ((2001) 208 CLR 343) (between 12 and 19 years).
[232]
The appellant also recognised that s 632(2) of the Criminal Code (Q), as amended, removes the former 'rule of law or practice' that a trial judge give a corroboration warning (The history of corroboration warnings can be found in R v Rosemeyer[1985] VicRp 90; [1985] VR 945 at 956-966 per Ormiston J) by directing a jury that it would be dangerous or unsafe to convict an accused person on a complainant's uncorroborated evidence in a sexual matter. Further, s 632(3) proscribes a warning that a class of persons, such as children or young persons giving evidence in a sexual matter, are inherently unreliable.
s 61), this Court in Longman dealt with similar legislation in Western Australia (Evidence Act 1906 (WA), s 36BE. This section was repealed by the Criminal Law Amendment Act 1988 (WA), s 39), and made it clear that such legislation, properly understood 'was to reform the balance of jury instruction not to remove the balance' by correcting practices which formerly required trial judges to instruct juries that 'complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical' ((1996) [1996] HCA 22; 186 CLR 427 at 451 per Toohey, Gaudron, Gummow and Kirby JJ). Nevertheless such legislation does not abrogate a general requirement for a trial judge to give a warning 'whenever it is necessary to do so in order to avoid a risk of miscarriage of justice' (Robinson v The Queen[1999] HCA 42; (1999) 197 CLR 162 at 168 [20] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).
[235]
In reliance on Robinson v The Queen ((1999) [1999] HCA 42; 197 CLR 162), concerning the same legislation as here, the appellant submitted that the concatenation of factors here, being the age of the complainant (nine or 10 at the time of the commission of the offences and 14 at the time of testifying), the sexual nature of the complaints, the delay between the commission of the offences and preliminary complaint to the complainant's mother (around two years), and inconsistencies in the complainant's evidence, required that a warning be given in accordance with Longman."[19]
[236]
[73] Further in this vein, Crennan J went on to say:
[237]
"In Longman the majority, Brennan, Dawson and Toohey JJ, said it was imperative ((1989) [1989] HCA 60; 168 CLR 79 at 91; see also Crampton v The Queen[2000] HCA 60; (2000) 206 CLR 161 at 179-180 [39] per Gaudron, Gummow and Callinan JJ) for a trial judge to warn a jury of the danger of convicting on uncorroborated evidence when an accused lost the means of adequately testing a complainant's allegations by reason of a long delay 'of more than 20 years' in prosecution ((1989) [1989] HCA 60; 168 CLR 79 at 91). Harking back to Lord Hailsham's statement in R v Spencer ([1987] AC 128 at 135, see also Lord Ackner at 141) that a danger may not be 'obvious to a lay mind', it was stated that such a factor 'may not have been apparent to the jury' ((1989) [1989] HCA 60; 168 CLR 79 at 91). Deane J considered a warning was necessary because of the danger that over a long time a child's 'fantasy about sexual matters' might become a 'conviction of reality' ((1989) [1989] HCA 60; 168 CLR 79 at 100-101 per Deane J). McHugh J considered a warning necessary because of the danger that, over a long time, the recollections of an honest witness can be distorted by 'imagination, emotion, prejudice and suggestion' ((1989) ; at 107 per McHugh J). The recollections in question were of a 32 year old witness of sexual misconduct alleged to have occurred when she was between six and 10 years old and in the twilight state between being fully asleep and fully awake.
[238]
Robinson involved a delay of three years before a complaint was made of an occasion of two anal rapes when the complainant was eight years old; the trial occurred nearly four years after the alleged offence, when the complainant was 11. The identified forensic disadvantage arising out of delay of three years before complaint was made was that medical evidence may have been able to verify or falsify the allegation of two instances of anal rape alleged to have occurred on the one occasion. The facts in Robinson also involved the danger Deane J spoke of in Longman ((1989) [1989] HCA 60; 168 CLR 79 at 100-101), namely that the complainant said he was asleep when the first act of penetration occurred and woke up while it was going on, and the danger McHugh J spoke of in Longman, in that the complainant was suggestible ((1989) [1989] HCA 60; 168 CLR 79 at 107-108; see also Robinson v The Queen[1999] HCA 42; (1999) 197 CLR 162 at 171). The present case is unlike Robinson in both of those respects. However, I agree with an observation of Kirby J in his Honour's reasons that 'the case law on judicial warnings does not progress by perceived similarity amongst the facts of particular cases but by reference to the dangers of miscarriages of justice that particular facts serve to illustrate' (Reasons of Kirby J at [51]).
[239]
The majority in Longman required a trial judge to explain to the jury the reason why it would be dangerous to convict on the uncorroborated evidence of the complainant and then to explain to the jury how to avoid the danger ((1989) [1989] HCA 60; 168 CLR 79 at 91 per Brennan, Dawson and Toohey JJ):
[240]
'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.'
[241]
In Crampton v The Queen ((2000) [2000] HCA 60; 206 CLR 161), Gaudron, Gummow and Callinan JJ said of 'the very great delay' that the appellant was 'unable adequately to test and meet the evidence of the complainant' ((2000) [2000] HCA 60; 206 CLR 161 at 181 [45]). They explained ((2000) [2000] HCA 60; 206 CLR 161 at 181 [45]; see also at 212 [142] per Hayne J):
[242]
'An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions.'
[243]
These observations were repeated by Gaudron and Callinan JJ in Doggett v The Queen ((2001) 208 CLR 343 at 356 [52]), a case in which Kirby J said that to determine whether warnings in accordance with Longman are required it is 'essential to address the particular mischief which the judges in Longman identified' ((2001) 208 CLR 343 at 379 [134]), which he described as follows ((2001) 208 CLR 343 at 379 [134]):
[244]
'This was the serious forensic disadvantage involved in responding to accusations made many years after events. And, in the case of long delay, it also included the special danger presented by honest, and apparently convincing, but erroneous testimony. It is the special knowledge which judges have gained through legal experience that needs to be brought to the notice of a jury in such cases.'
[245]
A delay between the date of offences and prosecution which is more than 20 years (Longman), 19 years (Crampton), or between 12 and 19 years (Doggett) creates a circumstance palpable or obvious to a judge, but which a jury might fail to appreciate. That is, that after such a long period an accused is forensically disadvantaged by losing a chance to adequately test the complainant's evidence ((1989) [1989] HCA 60; 168 CLR 79 at 91) or to adequately marshal a defence ((2000) [2000] HCA 60; 206 CLR 161 at 181 [45]).
[246]
Here, as already mentioned, no specific or particular forensic disadvantage to the appellant, as a result of delay, was identified to the trial judge: rather it was contended on appeal that the concatenation of factors of age (nine-10 at the date of the offences and 14 at the trial), the sexual nature of the offences (indecent dealing), the delay in complaint (around two years) and inconsistencies in the complainant's evidence, necessitated a warning in accordance with Longman, as applied in Robinson. It was asserted that those factors together created a forensic disadvantage to the appellant in attempting to mount his defence. It was not explained how this occurred or why a jury might fail to appreciate such an occurrence. A practical and orthodox direction was given by the trial judge in relation to the inconsistencies in the complainant's evidence. Neither Longman nor Robinson are authority for the proposition that it is imperative to give a warning in accordance with Longman when faced with the specific concatenation of circumstances identified by the appellant. The question is whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice. There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences (R v Miletic[1997] 1 VR 593 at 606 per Winneke P, Charles and Callaway JJA).
[247]
Not unnaturally, the practical application of Longman in some trial situations has not always proved easy, particularly in respect of clarifying how great a delay might give rise to an imperative to give a warning (R v BWT[2002] NSWCCA 60; (2002) 54 NSWLR 241 at 272-273 [95] per Sully J; R v GTN[2003] VSCA 38; (2003) 6 VR 150 at 154 [12] per Callaway JA, 172-174 [90]-[101] per Eames JA). As stated in Doggett this is not a question purely of mathematical precision ((2001) 208 CLR 343 at 377 [127] per Kirby J). Further, there is a distinction to be made between an inexplicable delay in reporting (as in Robinson) and an explicable delay as here, which may elicit comment but not necessarily require a warning (Longman). Intermediate courts of appeal have essayed various distillations of the principles to be applied to particular cases at hand (R v Johnston(1998) 45 NSWLR 362 at 375 per Spigelman CJ with whom Sully and Ireland JJ agreed; R v GPP[2001] NSWCCA 493; (2001) 129 A Crim R 1 at 15-27 [23]- [55] per Heydon JA with whom Wood CJ at CL and Carruthers AJ agreed; ; at 263 and 272-275 [95] per Sully J; ; at 163 per Eames JA; ; at 262-270 - per Besanko J with whom Bleby J agreed, 272-275 [65]-[80] per Sulan J; ; at 282-284 - per Doyle CJ with whom Perry and Mullighan JJ agreed; ; at 169-171 - per Howie J; ; at 501-503 - per Doyle CJ with whom Bleby and Gray JJ agreed; ; at 194-197 - per Kirby J with whom Spigelman CJ and Howie J agreed).
[248]
As the reasons of the majority in Longman make clear, it is not imperative to give a warning because the circumstances include allegations of sexual misconduct or because the complainant is young at the time of the events alleged (or at trial) or because there is some delay in complaint to, for example, a mother. While the purpose of a warning in accordance with Longman is to ensure a fair trial and to avoid a miscarriage of justice, the purpose of the relevant legislation is to ensure balance in jury instruction, without proscribing warnings when it is in the interests of justice to give them.
[249]
The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it 20 years, or two or three years, creates a forensic disadvantage to an accused in respect of adequately testing allegations ((1989) [1989] HCA 60; 168 CLR 79 at 91) or adequately marshalling a defence (Crampton v The Queen[2000] HCA 60; (2000) 206 CLR 161 at 181 [45]), compared with the position if the complaint were of 'reasonable contemporaneity' ((2000) [2000] HCA 60; 206 CLR 161 at 181 [45]).
[250]
The shorter the delay, the more difficult it is to assert that an accused has lost the ability to adequately test the evidence of the complainant or to adequately marshal his defence. In circumstances where the delay is short by comparison with the delay in Longman, and is explained by an accused's threats, some forensic disadvantage which is palpable and obvious to an experienced judge, but which a jury may fail to appreciate, needs to be identified because a judge must warn of the relevant danger (R v Glennon(No 2)[2001] VSCA 17; (2001) 7 VR 631 at 671 per Winneke P and Ormiston JA) before explaining to the jury how the particular danger is to be avoided. Without that circumstance, a warning in accordance with Longman is not imperative because a trial judge is in no position to explain why it would be dangerous to convict on the complainant's uncorroborated evidence.
[251]
The complainant gave uncontradicted evidence that the appellant threatened her on numerous occasions, often in parallel with the offences, by reference to his guns which he showed her several times. Her evidence was that she 'would have told [her mother] but [she] was worried about the guns'. The threats were directed not only at her but also involved threats to her mother and brother and were subsequently repeated after the last offence on several occasions, by telephone, during a five month period after the appellant and the complainant's mother ended their relationship. The complainant told her mother of the events very early in April 2002, some two to three weeks after her mother, her brother and she had moved from Queensland to New South Wales. The complainant introduced the revelations of alleged sexual misconduct when alone with her mother by saying she was glad not to live in Gladstone anymore. Gladstone was the place where four of the relevant offences occurred and where she had seen the appellant several times after her mother and the appellant had ended their relationship.
[252]
No forensic disadvantage of a kind which a jury may not appreciate arises automatically because of delay (Criminal Law (Sexual Offences) Act 1978 (Q), s 4A(4)), or because the evidence is uncorroborated evidence of sexual misconduct (Criminal Code (Q),
[253]
s 632(1) and (2)), or because of the complainant's youth (Criminal Code (Q), s 632(3)).
[254]
Here the appellant did not contend that the warning sought was imperative because events occurred when the complainant was in the twilight state between waking and sleeping. Further, there was no identification before the trial judge of any forensic disadvantage to the appellant arising out of the delay in complaint or prosecution, in respect of the indecent dealing counts. There was medical evidence that the complainant's hymen was intact and no findings of guilt were made in respect of two counts of rape. It was not submitted at trial, before the Court of Appeal or in this appeal, that reasonably contemporaneous medical evidence could have verified or falsified the counts of indecent dealing, which were distinguishable from the counts of rape because they did not involve allegations of successful penile penetration, and the counts of the appellant permitting himself to be dealt with indecently by forcing the complainant to touch his genitalia.
[255]
There was no forensic disadvantage to the appellant, arising out of the explained delay, which would have been palpable or obvious to the trial judge, but would not have been apparent to the jury. The concatenation of circumstances, being the age of the complainant at the time of the offences and at trial, the sexual nature of the offences, the explained delay between the offences and report, and trial, and inconsistencies in the complainant's evidence, could all be evaluated by the jury in the light of their own experiences. Therefore it was not necessary for the trial judge to give a warning to avoid a miscarriage of justice."[20]
[256]
**[74] In the present case, the considerations which, in combination, gave rise to the perceptible risk of a miscarriage of justice spoken of in Robinson v The Queen are not present, just as they were not present in Tully v The Queen. That being so, the only circumstances which could be said to give rise to a "perceptible risk of a miscarriage of justice" were that the evidence on which the Crown case depended was the uncorroborated evidence of a child complainant. The learned trial judge in the present case correctly, in my respectful opinion, appreciated that it would have been both wrong, and inconsistent, with the constitutional division of function between judge and jury, as reinforced by s 632(3) of the Criminal Code, to warn the jury that it would be dangerous to convict the appellant upon the uncorroborated evidence of the complainant because a risk of miscarriage of justice, perceptible to his Honour but not to the jury, arose by reason of the circumstance that the crucial evidence in the case was the uncorroborated evidence of a child complainant in a case of alleged sexual abuse. The learned trial judge was correct in proceeding on the footing that that circumstance alone afforded no occasion for the "disparagement of the complainant" involved in placing her in a "special category of suspect witnesses". In Longman v The Queen, Deane J deprecated such an approach, and pointed out that it may itself constitute an "encouragement of a miscarriage of justice".[21]
[257]
[75] In the present case, the evidence of the complainant was that the appellant assaulted her on the night J lost his arm. The complainant's evidence was supported by the evidence of R that the appellant and the complainant were together at the unit in Nambour on the night of the loss of J's arm and the viewing of pornographic videos by KC. The evidence of R and the complainant placing the complainant and the appellant together on the night in question was uncontradicted.
[258]
[76] In the present case, there was no continuation of the relationship between the complainant and the accused to cast doubt on the complainant's evidence, as there had been in Robinson v The Queen.
[259]
[77] Next, it is to be noted that this was not a case, like Robinson v The Queen, in which the accused gave evidence plausibly denying the offence. To make this observation is not to ignore the "accusatorial" character of a criminal trial;[22] rather, it is to recognise that, in this case, there is no danger here of the risk of miscarriage of justice identified by Deane J in Longman v The Queen,[23] where his Honour said:**
[260]
"it appears to me, after carefully reading and rereading the learned trial judge's summing up to the jury, that there is a real risk that, in the absence of any specific warning about the need to scrutinize the complainant's evidence with great care and caution before convicting the applicant on the basis of it alone, the jury may have seen the case merely in terms of whether they were satisfied beyond reasonable doubt that the complainant was a truthful witness and that the applicant was not and thereby failed to give proper consideration to the question whether, notwithstanding that the complainant was a truthful witness in the sense that she believed what she said, her evidence provided an inadequate foundation for a finding that the applicant's guilt of the ... alleged offences had been proved beyond reasonable doubt."
[261]
**[78] The complainant's delay in making a complaint about the appellant was not unexplained, as was the delay in Robinson v The Queen. There was a great disparity in the ages of the complainant and the appellant. According to the complainant in this case, the appellant had told her not to tell her parents about what he had done: she was eight years old, and so her compliance was hardly remarkable. Importantly, the appellant was able, notwithstanding the delay, to propound the case that he was in Maleny on the night in question even though he did not give that evidence or call evidence to support that case.
[262]
[79] Equally important is the circumstance that this was not a case where delay in making a complaint was apt to cause the loss of medical evidence which might have tended to confirm or deny the truth of the complaint. Nor was this a case where the delay involved in bringing the complaint could be seen to have led to the loss of evidence which might have supported the assertion that the appellant was in Maleny on the night in question.
[263]
[80] I have set out the material differences between the circumstances of this case and the features of the evidence which in Robinson v The Queen were held, "taken together with the absence of corroboration", to "create a perceptible risk of a miscarriage of justice", not to suggest that Robinson v The Queen should be read down or "confined to its own facts", but to show that there is no occasion for the principle in Robinson v The Queen" to operate in this case. These points of difference relate to "matters personal to the uncorroborated witness on which the Crown relies". These are the matters, over and above the circumstances that the complainant is a child and that her evidence was uncorroborated, which were said to give rise to the need for a warning that it would be unsafe to convict on that evidence.
[264]
[81] The decision in Robinson v The Queen, as illuminated by the decision in Tully v The Queen, does not suggest that the circumstance that the Crown case depends on the uncorroborated evidence of a child complaining of sexual abuse requires a warning that it would be dangerous to convict the appellant. Once the additional circumstances referred to in Robinson v The Queen are put to one side, the only basis on which it might be said in this case that a warning was required that it would be dangerous to convict on the evidence of the complainant is that the evidence was the evidence of a child complaining of sexual abuse more than three years after the alleged abuse occurred. The legislature has decided that it is unjust for judges to warn juries that it is dangerous to rely upon such evidence by reason of these circumstances alone. Whether or not that evidence is sufficiently reliable in a particular case to warrant a conviction is a question in relation to which judicial experience and insight is not apt to supply some deficiency in the experience or insight of the jury.
[265]
[82] The learned trial judge was correct not to trench further upon the function of the jury as the arbiters of fact.[24] Having regard to s 4A(4) of the Criminal Law (Sexual Offences) Act and s 632(3) of the Criminal Code, there was no occasion for him to do so in order to ensure that the appellant received a fair trial according to law.[25]
[266]
[83] It is true that the complainant's description in July 2004 of the person who assaulted her in April 2001 did not match the appellant. The jury did not need to be warned by the trial judge that, on the complainant's description of her assailant, the assailant could not have been the appellant. The extent of the disparity between the complainant's description of the appellant and his appearance could have been no more obvious to his Honour than it was to the jury.[26] It must also be said, of course, that, on the evidence, there was no person, other than the appellant, who might possibly have assaulted the complainant on the night of 12 April 2001.
[267]
[84] The directions which the jury were given by the learned trial judge were sufficient to ensure that the jury fully appreciated the need to reflect closely upon the implications of her description of the appellant for her reliability generally. His Honour had made it clear that the complainant's reliability was crucial to the Crown case, and he reminded the jury of the questions which might reasonably be entertained about her reliability.
[268]
[85] As to ground 6, it was, in my respectful opinion, open to the jury reasonably to accept that the appellant was mistaken about the appellant's description, but nevertheless reliable in her evidence about the appellant's conduct in J's unit at Nambour on the night that J lost his arm. It is readily understandable that the concatenation of events of which she gave evidence would have remained vivid in an eight year old's recollection, while it is hardly surprising that she was unable accurately to recall and describe the appellant's appearance when asked to do so three years later.
[269]
**[87] None of the grounds of challenge to the conviction have been established.
[270]
[89] PHILIPPIDES J: I agree for the reasons stated by Keane JA that the appeal should be dismissed.
[271]
[90] I also agree with what Williams JA has said concerning the provision of the transcript to the jury. It was within the trial judge's discretion to make the transcript available to the jury. While there is a statutory basis for the power elsewhere (see
[272]
s 55C of the Jury Act 1977 (NSW)), a discretionary power exists to provide a transcript as part of the inherent or implied power of the court to control its own processes (R v Taousanis [1999] NSWSC 107; (1999) 146 A Crim R 303 at 305-306). The practice of providing a transcript is not a common one in this jurisdiction, however it is a developing trend in some jurisdictions, particularly New Zealand (see R v McLean [2001] NZCA 233; [2001] 3 NZLR 794 at 802; R v Haines [2001] NZCA 360; [2002] 3 NZLR 13). Issues of balance may arise where the discretion is exercised to provide the transcript (R v Lowe [1997] NSWSC 160; (1997) 98 A Crim R 300).
[273]
[91] The complaint here was that the present case was not an appropriate one for the provision of a transcript and that there was a danger that it would result in a preoccupation by the jury as to what was recorded therein. It was submitted that the assistance sought by the jury through the questions raised with the judge betrayed such an undue preoccupation with the transcript. However, the jurors' questions were not directed to any particular passage of the transcript and I agree with Keane JA that it cannot be assumed that the questions reflected any undue regard to the transcript.**
[16] Cf per Callinan J at [133], per Heydon J at [151] and per Crennan J at [156], [178] - [186], on the one hand, and per Kirby J [60] - [62] and per Hayne J at [89] - [92] on the other hand.
[290]
[17][2006] HCA 56 at [128] - [133]; (2006) 81 ALJR 391 at 415-417 (citations footnoted in original).