R v W E B [2003] VSCA 205

2. I will invite Charles, J.A. to give the first judgment in this application.

6. The applicant, WEB, who is now 46 years old, pleaded not guilty on 4 April 2002 in the County Court at Wangaratta to a presentment alleging four counts of indecent assault contrary to ss.44(1) and 39 of the Crimes Act 1958 and one count of committing an indecent act with a child under the age of 16 years contrary to s.47 of that Act. The complainants in these matters were his nephew, JR, and his niece, NF. The trial proceeded over six days and on 12 April the jury entered a verdict of guilty on all counts. The applicant admitted six prior convictions from four appearances. After a plea the judge convicted and sentenced the applicant to terms of imprisonment giving rise to a total effective sentence of four years' imprisonment. It was ordered that the applicant serve a minimum period of two years and three months before becoming eligible for parole.

9. The applicant now seeks leave to appeal against both conviction and sentence. The grounds of the application touching conviction (as amended during argument) are -

1. The judge erred in admitting the evidence of an alleged confession made to RI (the complainants' grandfather).

2. The judge erred in failing to sever the presentment so as to order separate trials of counts in respect of each complainant.

3. The judge failed to adequately direct the jury in accordance with Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79.

4. The decision by the prosecutor not to call JB (the applicant's mother) as a witness was not justified and resulted in a miscarriage of justice.

5. The convictions are unsafe and unsatisfactory in the sense that no reasonable jury properly directed could be satisfied of guilt.

6. The judge erred in failing to give the jury in the circumstances of the case a warning in accordance with Kilby v. The Queen[1].

18. The prosecution alleged that the offences had taken place over a period of years commencing on 1 January 1985 and concluding on 30 June 1994. The applicant's nephew, JR, had been born on 23 April 1980 and his niece, NF, on 21 October 1981. At the time of the offences the complainants lived with their parents and an older sister, BB, together with their maternal grandparents at a property a short distance from Wangaratta. The applicant, the brother of the complainants' father, lived with his mother in Wangaratta. The offences were said to have occurred whilst the complainants were visiting their grandmother. JR alleged that he had been sexually assaulted at his grandmother's home whilst he was visiting her and on an occasion when he went for a walk around the block with the applicant alone. The niece, NF, alleged that she was sexually assaulted also at the grandmother's house during a visit there. Counts 3 and 4 involved allegations by JR that he had been sexually assaulted when he was in year 7 or 8 at High School, during a visit to his grandmother's home one Sunday afternoon. Neither JR nor NF complained to their grandmother or any other relative at the time of the offences. In early 1999 JR, after speaking to his girlfriend, decided to make a complaint to the police. He then spoke to his sister, NF, and several days later she also decided she would make a complaint to the police.

21. On 3 April 2002, the day before the trial commenced, the complainants' grandfather, RI, passed a note to the prosecutor which stated that some six years previously the applicant had said to him that he was sorry for what he had done to "the kids" and that they were the only family he had. A Basha[2] enquiry was conducted at the outset of the trial in relation to RI's evidence.

24. It is convenient now to turn to the evidence of the four principal Crown witnesses. JR said he had two sisters, BB then aged 25 and the second complainant NF then aged 20. He said he often visited the house of his grandparents in Wangaratta. On one occasion when he was in Preparatory grade at school, he was visiting his grandmother in Wangaratta when they were to go to the local swimming pool. He was slow in getting ready and his grandmother and his sister left the house first. JR said that he stayed with the applicant for some time and went to get changed. The applicant then called JR into the bedroom, and pulled down his underwear to his ankles. JR said the applicant was behind him at this time. JR said the applicant placed his penis in the witness's buttocks and began to move forwards and backwards in a sexual motion, which continued for about half an hour. He said he thought that the applicant got down on one knee whilst he was still behind him and that the applicant ejaculated on this occasion. He did not react to the applicant's actions and did not tell anyone what had happened. (Count 1).

27. JR then gave evidence of another incident which he alleged had occurred between himself and the applicant later in the same year at the corner of Moore and Harper Streets, Wangaratta, an intersection not far from his grandmother's house. JR and the applicant were walking around the block and headed towards Moore Street. When they reached the corner there was a large area of bushes and shrubbery protruding at the side of a house there. He said the applicant led him into the bushes, then took down his pants and again placed his penis between the witness's buttock cheeks. He said the applicant moved forward and backwards for some 10 to 15 minutes until he ejaculated. JR said the applicant did not penetrate his anus on either of the occasions just mentioned. The applicant then pulled up JR's pants and took him home. (Count 2).

30. Counts 3 and 4 related to an occasion when JR was in Year 7 or 8 at High School, when he visited his grandmother one Sunday afternoon for a roast dinner, the applicant also being present. He said that he was sitting in the lounge room with his grandmother and the applicant watching television. He went to the kitchen to get a drink and opened the refrigerator and as he did so the applicant walked past, closed it and grabbed him by the back of his arms. He said that the applicant began to rub his hands up and down JR's body and pushed his pelvis hard against his buttocks. JR was clothed at this time. He said he could feel the applicant's penis rubbing against his buttocks and the applicant also rubbed JR's groin, the back of his legs and his penis. There was then a struggle between them and JR broke free, running down the back of the house to the spare bedroom, and calling the applicant a "dick head". In his evidence JR also mentioned two earlier incidents which had occurred between the first two occasions and the incident which forms the basis of counts 3 and 4. He said that the applicant would walk past him and grab him on the bottom whenever he could and would also try and touch him on the penis every now and then.

33. Under cross-examination JR said that he had not told anybody of the incidents because he was scared. He did not like the applicant. He had been in trouble with the police on occasions including being caught drinking underage and smoking marijuana. On one occasion he had been caught by police with a stolen car. The number plates of his car had been found on a stolen car. JR agreed that he had pleaded guilty to the theft of the car in March 1999, and that he had, by pleading guilty, thereby created a false impression with the court as to the real circumstances of that criminal offence. JR agreed that in his statement to the police he told them that the applicant had pulled down his "bathers" and that he did not mean to say bathers to the police but was upset and crying at the time. He said he did not see the applicant ejaculate on either of the first two occasions and did not mention that fact to the police because he was embarrassed. He said that on one or two occasions he had asked the applicant to buy him alcohol and that the applicant had bought him marijuana in the past. JR then said that in about 1987 or 1988 he had received a new bicycle for Christmas and was out riding it when the applicant followed him. On this occasion he alleged he was anally penetrated by the applicant and that the applicant made him tell his parents that he had fallen off his bicycle to explain why his bottom was bleeding. He said he had not told the police about it as it was too embarrassing.

36. NF, the applicant's niece, said that she recalled an incident when she was about four or five years old in which the applicant carried her out the front door of her grandmother's house and a few steps outside, and then pulled down her underpants and whatever else she was wearing, kneeled in front of her and put his face very close down near her vagina. She said his face even brushed against it. She did not recall how the incident ended. The applicant told her to be quiet or to "shush". She did not say anything in consequence. (Count 5.)

39. Under cross-examination NF agreed that she was unable to say whether anybody else was home at the time. She said that the incident as described by her would have been within view of passing pedestrians or motorists. She continued to visit her grandmother and the applicant after this incident occurred. She said she had made her police statement after she was asked to come forward by JR, the other complainant. She also said that she could have been three or four years old when the incident happened.

42. The complainants' mother, AI, gave evidence. Under cross-examination she said that during the period from when the two complainants were four or five years old until they went to Toowoomba in 1989, they would visit their grandmother, JB, about once a week. She said they liked the grandmother, but there was no close attachment to the applicant. They visited their grandmother willingly. She accepted that the complainants had not expressed any reluctance between 1985 and 1989 about being in the presence of the applicant. She said that between 1992 when she and the children returned to Wangaratta and 1999, the complainants would still visit their grandmother; however, there came a stage when they would not go if they knew the applicant was on the premises. She said that JR had never complained to her about an accident with a bicycle which caused any form of bleeding. She also said that her father, RI, had not raised any concerns with her in relation to the applicant at one stage being distressed and saying he was sorry for what he "did to those kids".

45. RI, the complainant's grandfather, gave evidence. He said that he lived at Werribee and would visit his daughter and her family at weekends from time to time. On an occasion some years before, RI was at the house of the complainants' grandmother in Wangaratta removing timber. He had received a telephone call from the applicant who said that a side fence had been replaced and he asked RI whether he would like to take away the timber. He said that he took a trailer to JB's home and with the assistance of the applicant loaded the timber onto the trailer. He did not see JB that day. After the timber was loaded, and as RI got into the driver's seat of his car, he said he was approached by the applicant, who said "I'm sorry for what I did to those kids, I know they can never forgive me, they are the only family I have". He said that at the time there were tears running down the applicant's face and he was quite emotional. RI said he did not know what the applicant was talking about and did not attach any particular significance to it. He said the incident had occurred six years before.

48. Under cross-examination he said that in hindsight he now believed the applicant was referring to the matters before the court. The first time that he had told anybody about this event was on 2 April 2002. He said he had not told anybody about the incident previously because his daughter told him in 1999 that she did not want him to become involved. RI conceded that he did not attach any particular significance to the conversation and made no enquiries about it. He said it was something which stuck in his memory. He agreed that when he had written out his account of the conversation a second time for the police to draft a statement he had left out the words "they are the only family I have".

51. The applicant participated in a record of interview with the police in which he admitted that he would on occasions walk to the shops with the complainant JR. He otherwise answered "no comment" to the allegations put to him.

55. The applicant himself gave evidence in which he denied each of the incidents alleged against him. He said he recalled an occasion when he had assisted RI to load timber from a fence onto RI's trailer. He said that RI was at the house for twenty minutes and that his mother JB was present on this occasion. JB was raking up the scrap nails that had fallen from the timber. He did not go to RI's car at all and denied saying he was sorry for what he had done "to those kids". Under cross-examination he agreed that there were two occasions when he had taken the complainant JR to the pool by himself. The applicant's mother, JB, also gave evidence, in the course of which she said she recalled the occasion when RI came to take timber away from her home. She said she stood in front of her house the whole time he was there and asked him not to take all the timber as it was too big a load. She said the applicant helped RI load the trailer and she remained with him until RI had driven off around the corner.

59. The applicant's counsel objected to the prosecution proposal to call evidence from RI and asked the judge to rule that the evidence be excluded. The prosecutor conceded that the court had a discretion to exclude the evidence. He submitted however that the evidence was probative and the only argument was as to the weight the jury might give to the evidence. One argument that had been made by defence counsel was that RI had had a possible motive for fabricating the evidence, since he only thought to raise the matter after similar charges relating to the older sister, BB, had been dismissed in the Magistrates' Court at Melbourne. Counsel argued that if the defence were to canvass this issue during the trial it would create considerable prejudice against the accused. In response the prosecutor put it that whether defence counsel raised such issues relating to BB was merely a forensic decision like many others necessarily made in the course of any criminal trial. The judge concluded that the evidence was probative and properly admissible and no sufficient reason had been shown as to why it was unfair to the accused if the evidence were not excluded.

62. Mr Danos for the applicant in this Court submitted that the judge erred in admitting the alleged "confession" on the following grounds. The Court was reminded that the offences were alleged to have occurred between 10 and 17 years before the trial. The conversation between the applicant and RI was said to have occurred some five or six years prior to the trial. RI's evidence as to the statement had varied. In the form in which RI had twice stated the applicant's words it had not been possible to identify to which children it referred, since the last phrase had been omitted. However, the evidence given in court made it possible to infer that the statement referred to all three children since it included the added sentence "they are the only family I have". It was argued that although the supposed admission referred to all three children, yet in relation to one child, BB, no charge was before this court and indeed similar charges made on her complaint had been dismissed beforehand by the Magistrates' Court. The applicant was left with the difficulty (so it was submitted) that RI had an arguable motive for fabricating the evidence, since it was said that he only thought to raise the matter after charges relating to BB had been dismissed. If the defence were to canvass that issue it would obviously create considerable prejudice against the accused. The "confession" was highly uncertain in that it gave no indication as to what it was the applicant was admitting, nor was it possible to determine to whom reference was being made, or the nature of the conduct which it was said would lead to ill-feeling on the part of the children, or when such conduct was said to have occurred. The very uncertainty of any such admission was underlined by the conclusion of the judge in ruling the statement admissible that -

"It was clear that the alleged statement could be interpreted by the jury as constituting an admission by the accused that he had done something terrible to his brother's children, [NF], [JR] and [BB]."

Mr Danos submitted that the evidence was obviously highly prejudicial, as the judge's interpretation showed. The evidence was extensively canvassed by the judge in his charge to the jury both as to its potential use as a confession and as evidence capable of being supporting evidence of the crimes charged.

67. In this Court Mr Gyorffy for the Crown argued that the applicant had accepted in evidence that his position was that RI had "dreamed up" the alleged conversation. He submitted that the conversation had not been put forward as an admission against interest on which alone the jury could convict. Rather it was a piece of circumstantial evidence which the jury could accept in conjunction with other evidence to arrive at the conclusion that the applicant was guilty of the offences charged. On this basis it did not have to be proved beyond reasonable doubt and was merely a strand in the cable of the prosecution's case. He argued that if the jury was satisfied that the statement was made there was no other evidence of something done by the applicant to the children which could account for the spontaneous utterance he made to RI. He conceded that on its own the utterance would not have been sufficient to lead to a conviction on any of the offences charged, but when put into the context of the relationship between the applicant and the children and the allegations made by the children, the jury was entitled to use the evidence as an admission of the only major conflict between them. He put it that the admission showed the applicant had a feeling of guilt about what he had done to the children. The only matter of which there was evidence between the applicant and the children which could give rise to such a feeling of guilt was the conduct alleged by the children. Accordingly he submitted that these admissions and the demeanour of the applicant could be used to conclude that the applicant was admitting the commission of the offences alleged by the children. He submitted that the applicant's complaints merely went to the weight to be attached to the words as an admission.

70. In my view RI's evidence should not have been admitted. The content of this evidence was, as Mr Danos submitted, highly uncertain. It was capable of referring to conduct against BB, of which the applicant had been found innocent[3], of uncharged acts such as the anal penetration of JR which was not an offence of which the applicant then stood charged, or an incident at Werribee (which was put to NF in cross-examination but which she did not recall) also not before the court. It was a statement capable of being interpreted as referring to behaviour towards BB and either one of JR or NF (but not both), and with no indication which of them. It gave no indication whether the conduct in question referred to the conduct which was relied on by the Crown as giving rise to the offences of which the applicant was charged, or whether it related to uncharged acts. Furthermore, RI's statement was made, and then varied to more damaging form in evidence, six years after the "confession" had first been made to him, in circumstances where he said he placed no particular significance on it at the time and did not know what the applicant was talking about. The evidence might also have been argued to be somewhat surprising on the basis of it being open to doubt that the applicant, a long time after the events in question, should have made this very damaging statement to the complainants' grandfather when they were loading timber at the premises of the applicant's mother.

73. The judge's ruling does not make clear on what basis his Honour admitted the evidence. In the charge his Honour at several points referred to the evidence, if accepted, as a "confession", and, then in somewhat contradictory fashion, as "supporting evidence for the direct evidence of the complainant about that particular sexual assault". His Honour's ruling suggests that the statement could be interpreted by the jury as constituting an "admission", although the "something terrible" done to his nieces and nephew could not all have related to these offences. On the other hand, if the evidence related to an alleged assault on BB, the only basis upon which it could have been relevant would have been that of propensity, and the evidence could not properly have been tendered on this foundation. The transcript suggests that the Crown did not seek to use the evidence as a confession, although the precise basis for its admissibility was never clearly stated. The uncertainty of the basis upon which the evidence was being submitted was, I think, another reason for its rejection.

76. In these circumstances in my view the evidence had very limited probative value. On the other hand the potential for prejudice to the applicant's case was obvious and severe, suggesting, as the judge said, that the applicant was admitting to having done some unspecified but "terrible" something to his brother's children at some unknown time, and whether or not this statement related to the offences of which the applicant was presently charged. In my view the potential prejudice of this evidence very substantially outweighed any probative value the evidence might have had, and it should, with respect, have been excluded. I would therefore uphold ground 1.

80. In the circumstances already explained, it was plainly necessary that the judge include in his charge to the jury both a Longman[4] and a Kilby[5] warning. The Longman warning was necessary because of the failure to complain at an early time of the applicant's conduct, the very long delay which had occurred between the events of 1985 or thereabouts and 1999 when the complainants first went to the police, the age of the complainants at the time of the events relied upon to support all counts but in particular counts 1, 2 and 5, the absence of any direct corroboration of the complainants' allegations (other than the possible value of the "admission" made to RI), and the prejudice the delay caused the applicant in preparing his case and testing the allegations of the complainants.

83. The judge plainly agreed that a Longman and a Kilby warning should both be given. When his Honour came to this part of the charge his Honour observed that there had been a lengthy delay in the prosecution of the alleged offences, and after mentioning the dates of the alleged offences and the time when they were first reported to the police in January 1999 said that a delay of between six and fourteen years had occurred after the alleged incidents. His Honour then, in accordance with s.61(1)(b) of the Crimes Act 1958, told the jury that -

"As a matter of law I must tell you that delay in complaining does not necessarily indicate that a complainant's allegations are false. There may be good reasons why a victim of sexual assaults may delay or hesitate in complaining about them. In the present case, there was no complaint made at the time of the alleged offences. If there had been, you might have used that evidence to help support a conclusion that the complainant was telling the truth about a particular incident, but that is not the case here."

He then dealt in some detail with the explanations JR and NF had both given as to why they had not complained at the time including that they were frightened and embarrassed and that although they continued to visit their grandmother they tried to keep their distance from the accused.

88. His Honour then said that the jury must consider the explanations given by each of JR and NF for the delay in making a complaint and that it was "a matter for you whether you accept their evidence about these matters and whether in the circumstances it provides an explanation for the delay in complaining". His Honour then said -

"It is necessary, however, that you take such delay into account when evaluating their evidence and in determining whether you believe JR or NF or not. In this case the accused first became aware of the specific allegations against him in February 1999. One of the consequences of the delay in the making of the complaint to which I must direct your attention, is that by the time the accused learned of the specific allegations against him, he may have lost the means of testing the allegations in ways that might have been open to him had there been no delay in prosecuting the complaints. For example, it may have been possible closer to the time to have gone back and checked details of the complaints. These matters would be much more difficult to check after February 1999. It is possible that the delay in the making of formal complaints might therefore have affected the accused's capacity to adequately test the allegations made against him. This matter has some importance because in this case the prosecution essentially relies upon the evidence of the complainants alone to satisfy you that the offences had been proved beyond reasonable doubt."

93. At the end of the judge's charge defence counsel took a number of exceptions, including that his Honour had not given the jury a Kilby direction. When his Honour came to redirect, his Honour repeated that the jury "must consider the circumstances of the delay in making a formal complaint to the police as that matter would be relevant to your evaluation of [their] evidence".

96. As Dawson, J. said in R. v. Crofts [6]-

"Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant."

This statement was based upon what Barwick, C.J. had said in Kilby itself[7] as follows -

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

It will be seen that although the trial judge told the jury to take the delay in complaining into account when evaluating their evidence and determining whether to believe JR and NF or not, his Honour did not inform the jury that failure to complain or delay in complaining may cast doubt upon the reliability of their evidence, and this after his Honour had spent a considerable time in explaining to the jury that the delay in complaining does not necessarily indicate that a complainant's allegations are false and setting out at length the reasons given by JR and NF for their delay in complaint. In that respect there was, it seems to me, a considerable imbalance between such Kilby warning as was given and the detailed explanation given to the jury before by his Honour of the reasons given by JR and NF for their hesitation in making complaint about the applicant's alleged conduct.[8]

103. In my view in so far as the trial judge gave the jury a Kilby warning at all, it was, with respect, inadequate. In this Court Mr Gyorffy expressly accepted that his Honour had not given the jury a Kilby warning. Ground 6 has been made out.

107. The Longman warning given by the trial judge was in the following terms -

"In cases of this nature involving alleged sexual acts, it is not an uncommon situation that there is no evidence from an independent source to support a complainant's evidence. It is necessary, however, in the circumstances of this case for me to give you a further direction of law. You have observed both [JR] and [NF] give their evidence and be cross-examined. You have heard the comments made by the prosecutor and the criticisms of defence counsel about their evidence. I direct you, as a matter of law, that you must scrutinise the evidence of [JR] and [NF] with great care. You must consider the circumstances of the delay in making a formal complaint to police, as that matter will be relevant to your evaluation of their evidence. Unless you are satisfied of the truth and accuracy of the evidence of the relevant complainant, after making that examination and evaluation, it would be dangerous to convict the accused on the evidence of [JR] or [NF] alone as the case may be. You should only convict the accused if you are satisfied of the truth and accuracy of [JR] and [NF's] evidence, and in assessing their evidence you must have regard to the warnings I have given you. So long as you follow my directions, the evaluation you make of [JR] and [NF's] evidence and the conclusions you reach as to the accused's guilt or innocence on the particular charges, will be a matter for you."

111. There can be no doubt, for the reasons already given, that a strong Longman warning was required in the present case. Mr Danos, however, contended that the directions given by the judge were deficient in a number of ways. First he submitted that at the commencement of the direction his Honour stated that what he was about to say was not "something unique to this case". The inference being conveyed to the jury that the circumstances which gave rise to the need for a Longman warning were commonplace was, he argued, reinforced by the opening sentence of the passages set out in paragraph [29] above, where his Honour said that this was "not an uncommon situation". It was submitted that this approach could only have had the effect of diluting the whole impact of the Longman warning. Next it was submitted that the judge had failed to warn the jury "of the dangers of relying on the evidence of the young and their ability to recollect events from their childhood". Thirdly, Mr Danos submitted that the judge had failed to warn the jury that they should look for independent evidence which supported the allegations made and without which it would be dangerous to convict.

114. Mr Gyorffy submitted that no specific form of words was required for a Longman warning, and the effect of the words used by the judge had made it plain in all the circumstances of the case that the jury should approach their conclusion with caution. This, he submitted, was sufficient. He put it that the question of the ability of a young witness to recall events is a matter of comment which the judge may or may not make according to the circumstances of the case. It was already apparent from the charge that the victims were young at the time of the offences, there had been a relatively long delay in bringing the charges, and the jury must be satisfied of the truth and accuracy of the evidence of the relevant complainant. Furthermore, he submitted that to emphasise the youth of the children as a factor necessitating the giving of a Longman warning, would offend s.23(2A) of the Evidence Act 1958, by suggesting to the jury that the law regards children as an unreliable class of witness.

117. In Longman v. The Queen[9] Brennan, Dawson and Toohey, JJ. explained why a warning was required in that case and the nature of the warning required in the following way -

"There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s.36BD requires) that there may be `good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.' But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: ... That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury. 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, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice." (Citations omitted.)

"[T]he present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge."

123. With great respect to the trial judge, the warning given did not meet the standards required by the judgments in Longman. Indeed, the warning given in the present case was not really a warning at all. In the second paragraph quoted in the passage set out in paragraph [29] above, the judge told the jury to scrutinise the evidence of the children with great care. In the next paragraph his Honour told the jury that, after considering the delay which was relevant to their evaluation, "unless you are satisfied of the truth and accuracy of the evidence of the relevant complainant, after making that examination and evaluation, it would be dangerous to convict the accused on the evidence of [JR] or [NF] alone as the case may be". The vice of this passage, in my respectful view, was that unless the jury were satisfied of the truth and accuracy of the evidence of each complainant, they were positively obliged not to convict the accused. To say that "it would be dangerous to convict" in these circumstances was to put to the jury something very much less than their obligation.

126. The fourth paragraph would have been unexceptionable, had proper warnings been given beforehand.

129. Although the judge gave a redirection after defence counsel took an exception to the Longman warning, it did not remedy the deficiencies already discussed. I accept Mr Gyorffy's argument that no particular form of words is required, in the sense that every warning must be appropriately tailored to the facts of the case concerned, and each warning is, in that respect, unique. I do not, however, accept the proposition that to take into account in a particular case the extreme youth of a complainant, when coupled with a long period of delay, is in any sense to contravene s.23(2A) of the Evidence Act. That sub-section requires the judge not to suggest to the jury that children are regarded as an unreliable class of witness. This would be an important consideration if a child were giving evidence of events which had occurred recently. But it is a very different matter if, as here, a young adult (say, FN at the age of 20) were giving evidence of events which may have occurred as long ago as when she was three years old. To say that this circumstance is a factor which underlines the need for a Longman warning is not at all to suggest that children are an unreliable class of witness, even without regard to sub-s.(2B) of s.23 of the Evidence Act which permits a judge to make any comment on the evidence given in the proceeding which it is appropriate to make in the interests of justice.

132. It follows that ground 3 has also been made out.

136. The applicant must, in my view, therefore succeed in his application for leave to appeal against conviction and the convictions must be set aside. Grounds 2 and 4 may be put to one side. It is necessary however to deal briefly with ground 5 in order to determine whether a new trial should be ordered or the applicant should be acquitted.

139. The relevant tests for considering whether a conviction is unsafe or unsatisfactory are set out in cases such as M. v. R.[11] These tests were recently quoted by Winneke, P. in R. v. Alexander and McKenzie[12] in a case similar to the present in which convictions had been obtained at a trial during which inadmissible and prejudicial evidence had been admitted. In the present case also the Court is being asked to reassess the evidence at trial, but with the admissible evidence expunged from the record.

142. Notwithstanding the submissions of Mr Danos, there is, I think, a sufficient case to enable a jury acting reasonably, and properly instructed, to return a verdict of guilty on the evidence of JR upon counts 1-4. Different considerations apply in the case of count 5. NF said in evidence-in-chief that the incident she described supporting count 5 occurred when she was four or five years old, but conceded under cross-examination that she may have been as young as three. There was no corroboration of her evidence. No complaint was made until 1999. The incident, as described, would have been within the view of passing pedestrians and motorists, as also was shown by a photograph of the relevant premises which was in evidence at the trial. The incident was denied by the accused both in his record of interview, and under oath at the trial. In all these circumstances, taking into account the nature of the incident described, and that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, I would conclude that upon the whole of the evidence it would not be open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. I would therefore enter a verdict of acquittal in relation to count 5.

146. In Spies v. The Queen[13], Gaudron, McHugh, Gummow and Hayne, JJ. said, speaking of the High Court's power to enter an acquittal upon a successful appeal by a convicted person, that -

"Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge."

150. The powers of this Court when an appeal against conviction succeeds are contained in s.568(2) of the Crimes Act 1958 and expressly entitle this Court after quashing a conviction to "either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had".

153. 42 Although this provision may give the Court a broader discretion than that of the High Court, this Court ordinarily, if there is evidence to support the charge, would, I think, leave to the Director of Public Prosecutions the question whether to proceed to a new trial. Here the sentences imposed by the judge on the remaining counts would have left the applicant with a total effective sentence of three years and three months. It is unlikely that a non-parole period would have been fixed exceeding two years. The applicant has now been in custody since 11 April 2002. Accordingly he has already served more than 19 months in custody in relation to these alleged offences. The prosecutor conceded at the trial twice that the offending was "at the lower end of the scale of seriousness". I would direct that a new trial be had on counts 1 to 4. No doubt the Director will take all these matters into consideration when deciding whether to proceed with a new trial on the remaining four counts.

157. I agree with Charles, J.A. that the applicant's appeal against conviction should be allowed. I agree with his Honour's conclusion that this Court should direct a verdict of acquittal on count 5; but that a re-trial on the remaining counts be had, subject to the Director's determination.

160. I have reached the conclusion expressed for the reasons which have been given by Charles, J.A.; but I wish to add some brief comments of my own.

163. I agree that the evidence of RI was far too vague and uncertain to have been admitted into evidence. The protean quality of this piece of retrospective recollection on the part of RI clearly had the capacity to cause serious prejudice to the applicant; but had little probative value because of its vagueness and capacity to promote speculation. Indeed its specious character was highlighted in the apparent difficulties encountered by the judge in directing the jury as to its use. His Honour admitted the evidence on the basis that "the jury could interpret it" as an admission "against interest"; in the course of his directions he told the jury that, in the absence of other explanations, a "confession" is usually "strong evidence of guilt". Having said that, his Honour then told the jury that they could use the evidence, in considering a particular charge, as "some supporting evidence for the direct evidence of the complainant". Yet, when his Honour came to give what he had termed a "Longman warning", he did so on the basis that in cases of alleged sexual assaults "it is not an uncommon situation that there is no evidence from an independent source to support a complainant's evidence".

166. That brings me to the other matter upon which I wish to comment. At the close of the evidence, his Honour said he would be giving a "Longman direction"[14]. Such a direction was clearly warranted in this case. The alleged assaults took place some five to fourteen years before complaint was made of them. The assault against the complainant NF was alleged to have occurred when she was four to five years of age, but, according to her, could have been earlier. Likewise, two of the four counts alleging assaults on JR had taken place when he was of very tender years. The combination of the prospect of distortion of recollection combined with the applicant's inability to properly test the allegations made against him were the factors which required a warning, given with the authority of the judge's office, in order to preserve the fairness of this trial. Yet the warning which the judge gave was one which, in my view, would have made little impact upon the jury; and certainly not the impact which it should have carried. Having told the jury that it was not uncommon in "cases of this nature" that there is no evidence from an independent source to support the evidence of the complainant; and that the jury had "observed [the complainants] give their evidence and be cross-examined"; and had heard "the comments" of the prosecutor, and the "criticisms' of the evidence by the defence; his Honour continued:

"I direct you, as a matter of law, that you must scrutinize the evidence of [the complainants] with great care. You must consider the circumstances of the delay in making a formal complaint to police, as that matter will be relevant to your evaluation of their evidence. Unless you are satisfied of the truth and accuracy of the evidence of the relevant complainant, after making that examination and evaluation, it would be dangerous to convict the accused on the evidence of [either complainant] alone as the case may be. You should only convict the accused if you are satisfied of the truth and accuracy of [the complainants'] evidence, and in assessing their evidence you must have regard to the warnings I have given you. ... "

170. To direct a jury that, unless they are satisfied of the truth and accuracy of a complainant's evidence, it would be dangerous to convict the accused on that evidence, is to tell the jury no more than what is their sworn duty. Indeed, in a case such as this, it could be construed as a misdirection because it inferred that if the jury were not satisfied of the truth and accuracy of the complainant's evidence they could still convict, although it would be dangerous to do so.

173. In truth, this was not a warning which carried with it the impact which was required. There is a discrete difference, as it seems to me, between giving directions of the type which his Honour gave and warning a jury that, because of the identified difficulties which have left the accused at a disadvantage, it would be dangerous to convict on the complainant's evidence alone; unless - having scrutinised the evidence with great care, considering the matters relevant to its evaluation, and paying heed to the warning - the jury is convinced of its truth and accuracy. That is the type of warning which Brennan, Dawson and Toohey, JJ. said was necessary to be given in Longman[15]; and their statement has recently been endorsed, in similar circumstances, in Crampton v. R.[16] Those principles have been applied in this Court on several occasions in circumstances where the disadvantages flowing to a defendant are palpable[17]. This type of direction is calculated to bring to the forefront of the jury's mind the primacy of the warning that it would be dangerous to convict the accused on the unsupported evidence of the complainant in the circumstances of the individual case. It is the unusual circumstances which have put the accused at a disadvantage in the trial - and not the scrutiny of the complainant's evidence - which compel the warning of the dangers of convicting on unsupported evidence.

176. There seems to have developed a tendency among some judges in recent times, in circumstances where they accept that a Longman type warning is required, to dilute the warning in similar form to the one which was given here[18]. Whether or not this is caused by a belief that a strong warning in a sexual assault case is tantamount to a reintroduction of the old rule of law or practice which required the judge to give a warning which suggested a sexual complainant to be unreliable, I do not know. It may be that it stems from a belief that a strong warning in the terms of Longman is too favourable for the accused. The fact is that the "Longman warning", although in similar form to the former common law direction, is given for entirely different reasons. Whether a warning is called for, and in what terms, must of course be a matter for the trial judge in the circumstances of the case. But if, in the interests of fairness of the trial, a Longman type warning is called for, as the judge (in my view correctly) thought was the case here, that warning should be delivered in terms which are clear and concise, and achieve the impact which is required. Judge Kelly's handbook of "Directions"[19] gives examples of the nature of the warning which is required in circumstances similar to those which arose in this case.

179. Where a warning is required, as it undoubtedly was in this case, it must be given in an "unmistakable and firm voice" - a warning which carries the judge's imprimatur that it would be "dangerous to convict the accused on the unsupported evidence of this complainant, unless etc." It is "that red flag which must remain aloft", as Ormiston, J.A. and I said in R. v. M.C.G.[20], unless and until the jury is satisfied of guilt after it has thoroughly scrutinised the evidence, considered the circumstances and paid heed to the warning. That case involved a direction, much like this one, which subjugated the real purpose of the warning to the need to "scrutinise carefully the evidence of the complainant". As the joint judgment stated:[21]

"Again it would appear to put the cart before the horse. The real need for the warning is the long delay and its effect upon the conduct of the accused's defence, in which case the absence (or possible absence, since it is a matter for the jury) of supporting evidence will make the giving of a Longman warning almost invariably necessary."

And, at [91] of the judgment in that case, we went on to point out that a charge which essentially invites the jury to scrutinise the complainant's evidence with great care, as this one did, is simply insufficient:

"It is ... merely in those terms a repetition of the jury's obligation in any criminal trial having regard to the need for the Crown to prove the case beyond reasonable doubt."

185. With these elaborations, I am - as I have said - in agreement with Charles, J.A. that the appeal must be allowed.

189. In R. v. GTN[22] I discussed what I called the considerable judicial debate apparent in the authorities about the applicable parameters of the Longman principle. I observed then that I shared many of the concerns expressed by trial judges about the practical application of the principle in some trial situations. In some instances trial judges are concerned that the direction which they are required to give rather than ensuring a fair trial inappropriately tips the scales against the prosecution case.

192. The reticence of some trial judges to give the full Longman direction derives, it seems, from their concern that in so doing, and in giving the direction the weight of judicial authority, the direction might convey to the jury that it is the opinion of the trial judge that the jury should reject the evidence of the prosecution witnesses and acquit the accused. In my view, the Longman direction is not intended to convey that message; to do so would be to usurp the function of the jury. The purpose of the Longman direction is to ensure a fair trial and to avoid miscarriages of justice. Trial judges are bound to give the direction, and with the full weight of their office, where, in the light of authority, the circumstances of a case require it to be given. The precise terms of the direction may well be modified according to the circumstances of the individual cases, but the requirement that the warning be backed by the weight of judicial authority is a mandatory feature of a full Longman warning. In this case there was no disagreement between counsel that a full Longman direction was required, and the judge agreed that it was necessary.

195. It seems clear to me that the judge was endeavouring to provide such a Longman direction but did not want to convey to the jury the inappropriate impression to which I have earlier referred. In endeavouring to achieve both goals his Honour, with respect, unduly diminished the force of the warning which the judges in Longman required be conveyed. As a result, the jury was not told, with adequate clarity and emphasis, that by reason of the delay in this case it was judicial experience that it was dangerous to convict on the uncorroborated evidence of the complainants.

198. 55 In some cases, such as GTN, it could not be said that the circumstances of the case did excite a concern, born of judicial experience, that there was a danger of a miscarriage of justice which the jury might not appreciate and as to which they needed to be warned. In the present case, however, judicial experience did mandate that a direction be given, and the judge did not suggest otherwise. It may well be that all of the jurors would have understood, without any direction, that the recollections of childhood events, however clearly and honestly articulated by an adult witness, were capable of being unreliable. But without direction they would probably not have fully appreciated that it would, in fact, be dangerous to act on that evidence without it being corroborated, nor what factors made it so. Nor would they have understood how they should approach their task of evaluation of the evidence, having regard to the problems that delay created.

201. Complaint was made that his Honour prefaced his directions with the comment that what he was about to say was not unique to this case. In my opinion, it would diminish the force of the warning to say that it is one given in all cases, but in this case his Honour did not say that. He told the jury that the directions were those which "must be given in all cases where witnesses give evidence about events occurring a long time ago". The full Longman warning is not, of course, given in all cases, but only in cases where judicial experience tells us that by virtue of delay in the making of a complaint it is dangerous to convict on the uncorroborated evidence of the complainant. It is that judicial appreciation that must be stated to the jury. It is, however, part and parcel of the Longman direction that, having given the warning in emphatic terms, the judge should then make it clear to the jury that having understood and applied the judicial warning they may nonetheless still convict on the uncorroborated evidence of the complainants. That statement must not, though, be given in a way that dilutes the effect of the Longman warning. In saying that, by way of completeness, I am not suggesting that his Honour fell into error in that way. Nonetheless, while I do not accept that the judge discounted the direction by making a remark in terms that it was merely something said in all cases, it would have been better, in my opinion, not to have made any observation, at all, about it being a direction given in all cases of long delay. The delivery of that information might well diminish the force of the direction in the minds of some jurors.

204. 57 For the reasons given by Charles, J.A., I am persuaded that the Longman warning given in this case was not adequate in the circumstances. Nor was the re-direction which the learned trial judge gave adequate to overcome the deficiencies of what had been intended to be a full Longman direction.

207. For the reasons given by Charles, J.A. as to each of the grounds of appeal, I agree that the application for leave to appeal against the convictions on counts 1 to 4 should be granted, the convictions be set aside and a re-trial be ordered on those counts. As to count 5, I agree with Charles, J.A. that in all the circumstances, in particular having regard to the fact that the evidence of the grandfather ought to have been excluded, that verdict is unsafe and unsatisfactory and the conviction should be quashed, and a verdict of acquittal entered.

211. The formal order of the Court is that the application for leave to appeal against conviction is allowed.

The convictions recorded below are quashed and they and the sentences are set aside.

We direct that there be a retrial on counts 1 to 4.

We further direct that there be a verdict of acquittal entered in respect of count 5.

[1] [1973] HCA 30; (1973) 129 C.L.R. 460.

[2] R. v. Basha (1989) 39 A.Crim.R. 337.

[3] Cf. Garrett v. The Queen [1977] HCA 67; (1978) 139 C.L.R. 437.

[4] Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79.

[5] Kilby v. The Queen [1973] HCA 30; (1973) 129 C.L.R. 460.

[6] [1996] HCA 22; (1996) 186 C.L.R. 427 at 434.

[8] Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427; R. v. Miletic [1997] 1 V.R. 593.

[9] [1989] HCA 60; (1989) 168 C.L.R. 79 at 90-91.

[11] [1994] HCA 63; (1994) 181 C.L.R. 487 at 492-494.

[12] [2002] VSCA 183; (2002) 6 V.R. 53 at [34].

[13] [2000] HCA 43; (2000) 201 C.L.R. 603 at [104].

[14] Longman v. R. (1989) 168 C.L.R. at 90-1.

[16] (2000) 206 C.L.R. 161 at 179-80 per Gaudron, Gummow and Callinan, JJ.

[17] See R. v. Miletic [1997] 1 V.R. 593 at 604-6; R. v. Young [1998] 1 V.R. 402 at 408-9; R. v. Hyatt [1998] 4 V.R. 182 at 189-191; R. v. Robertson [1998] 4 V.R. 30 at 35; R. v. Jolley [1998] 4 V.R. 495 at 496-7, 502; R. v. M.C.G. [2001] VSCA 17 at [85]- [86].

[18] Cf. R. v. Robertson [1998] 4 V.R. 30 at 35-6; R. v. N.R.C. [1999] VSCA 184; [1999] 3 V.R. 537; R. v. M.C.G., supra at [86] ff.

[22] [2003] VSCA 38, at [55].