And:
"Once again I am very sorry and I hope one day you can forgive me. It was all my fault. I am also very sorry to your mother. I have caused her a lot of pain as well."
41 These various matters of corroboration and admission, insofar as they are such, are similar in their general nature to the evidence in Doggett. As in that case, they are not specific with respect to particular charges. I must accept, on the authority of Doggett, that these matters are not entitled to weight in the application of the proviso.
42 I proceed on the assumption that I am wrong in my above analysis and that it is necessary for a trial judge to use the precise Longman formulation or, even if that is not essential, that some aspect of the Longman warning was not given, as a matter of substance. It remains the case that a warning of strength was given. Even if not fully compliant with Longman, it is relevant to have regard to the strength of the warning actually given.
43 In Doggett the only warning given to the jury was that it should "scrutinise the complainant's evidence very carefully". (See supra at 370 [101].) That was found to be inadequate. It is relevant to the application of the proviso that the direction in this case contained reference to virtually all, if not all, the elements of a Longman warning without, at least in express terms, the reference to "dangerous to convict", "scrutinise with great care" and "after taking into account the warning" and perhaps some aspects of the sequence contained in the Longman direction.
44 However, in Doggett, unlike the present case, the following did not occur:
· There was no express use of the word "warning".
· There was no emphasis given to the authoritative statement that her Honour gave in this case that " … is most important that you appreciate fully the effects of the delay".
· There was no express reference to the legal trigger for the warning, namely the inability of the accused to defence himself by testing prosecution evidence or by adducing evidence, as constituting the element of which the jury may not, uninstructed, be aware.
· There was no express reinforcement of submissions by trial counsel about the difficulties the accused found in giving his evidence.
· There was no use of forceful terminology such as "you could only convict the accused if you were satisfied beyond reasonable doubt of the truth and reliability of the complainant's evidence".
· There was no express reference of the character, which I have quoted above, that the process of being satisfied of the complainant's evidence could occur "only after taking into account" the effect of the delay in certain respects.
45 Even if I am wrong, and the summing-up did not comply fully with the requirements of Longman as subsequently interpreted, it is much closer to a full Longman direction than anything that occurred in Doggett. The strength of the direction is relevant to the determination of whether the proviso is applicable on the facts of this case.
46 Of particular significance in this case is the fact that the jury only convicted on four of the seven counts. In Doggett, the jury convicted on all seven counts. This fact was given emphasis in both judgments that refused to apply the proviso.
47 Gaudron and Callinan JJ said at 357
"[55] … [T]his was a case which did call for a Longman direction. We would not regard the giving of it as a merely mechanical exercise. It could have had an important bearing here on the appellant's reliability on matters both of detail and real substance. Any reasonable doubt that a Longman direction might have engendered in the minds of the jury on the first two counts could well also have influenced their views on the other counts."
48 The first two counts to which their Honours referred in Doggett, were the counts which occurred at the age of eight and involved an allegation that the accused fondled the complainant while she was asleep, which conduct caused her to awake.
49 To similar effect was the emphasis Kirby J gave to the choice between the evidence of a complainant and the denials of an accused, that is the usual structure of sexual assault cases. His Honour said at 383:
"[150] Here, the jury may have ultimately based their conclusion about the guilt of the appellant upon acceptance of the testimony of the complainant in preference to the appellant's denial. In a case such as the present, the powerful effect of the testimony of a person such as the complainant can carry along a jury's reasoning towards a conclusion of guilt that sweeps aside any problems in the prosecution's case. This is why it is ordinarily necessary, in cases of substantial delay, to give the Longman warning about the disadvantages that an accused faces. Unless such warnings are given the danger exists that the considerations that would otherwise be mentioned in the warning may not be taken into account at all. The powerful effect of the complainant's testimony may then, alone, produce a conclusion which is ill considered, or inadequately considered."
50 His Honour added, in conclusion on the proviso:
[158] … Into the equation of the assessment of the evidence of the appellant and of the complainant, including as revealed in the telephone conversation, it was necessary to inject reference to the particular forensic considerations identified in Longman . Otherwise a jury might have completely overlooked such considerations. Preferring the evidence of the complainant to that of the appellant was not sufficient to convict the appellant. Being unconvinced that the complainant's testimony was honest and had not been significantly dented by a lengthy cross-examination, was also insufficient. Before giving effect to such conclusions, the jury needed to take into account a warning based on particular considerations derived from the law's experience. This they did not receive. Because it is impossible to determine 'the basis on which the jury founded their verdict', it is impossible to be satisfied that the absence of the warning in this case did not deprive the appellant of a chance of acquittal." (at 386)
51 In the second trial of the present proceedings, the jury found the Appellant guilty of four of the seven charges that he faced. With respect to the first count in the indictment he was found not guilty. With respect to the counts 2 and 3 on the indictment the jury were unable to agree.
52 The contrast between the jury in Doggett, which convicted on all counts, and the jury in this case, which carefully considered the evidence and acquitted on one count and could not agree on two counts is, in my opinion, significant to the application of the proviso.
53 Her Honour did not use the precise terms of the Longman direction that the jury had to scrutinise the complainant's evidence with great care. However, the result in the case with respect to three out of the seven charges shows that that is precisely what they did do. This was not a case like Doggett, in which it could be said that the jury merely preferred the evidence of the complainant over that of the accused, without undertaking a careful consideration in the light of an express warning.
54 With respect to the first count, the reason for the jury's verdict is apparent. The complainant said that the Appellant had felt her breasts whilst teaching her how to drive. The car was of a kind which had the gearstick on the side of the steering wheel. The Appellant gave evidence that he had taught a number of the children to drive on that vehicle and that he had to put his arm around them to change gears. The jury were not satisfied beyond reasonable doubt that what occurred was not an accidental touching, even though it had been regarded by the complainant as deliberate. This was the only charge of which the Appellant was found not guilty.
55 The jury were unable to agree on counts 2 and 3. These were the first two occasions on which, on the complainant's evidence, the Appellant had taken her hand and placed it on his penis, on the second occasion to the point of ejaculation. The circumstances of count 3 bore some resemblance to the circumstances of counts 4 and 6. They were distinct from counts 5 and 7, where an act of sexual intercourse by means of digital penetration occurred.
56 However, counts 4 and 5, and 6 and 7, each refer to the same occasion. There was a single course of conduct in which the Appellant forced the complainant to masturbate him and, while that was occurring, he inserted his finger into her vagina. On neither of the occasions involved in counts 2 and 3 was there any suggestion of digital penetration.
57 There has been no suggestion in this appeal that the verdicts were in any way inconsistent. Nor, in my opinion, could there be.
58 It is pertinent to note that the complainant's evidence with respect to counts 2 and 3 does not appear to have differed in any way with respect to the assuredness with which she recollected detail with respect to other counts. Nevertheless, the jury did not unanimously accept her evidence to the criminal standard on these counts.
59 The Appellant gave evidence to the effect that there were two occasions on which the complainant had approached him, touched his penis and requested certain favours, particularly sums of money. To some degree his evidence was corroborated by his natural daughter, who gave evidence that he had told her about these approaches by the complainant, and had done so at a time well before any possibility of prosecution had arisen.
60 It is of significance that the trial was conducted on the basis that the incidents where, according to the Appellant, the complainant allegedly initiated a sexual approach to him, were linked to counts 2 and 3.
61 In the course of the evidence in chief of the Appellant he first addressed count 1. He was then taken to the complainant's evidence about counts 2 and 3 and denied each of them. He then gave the following evidence:
"Q. Did anything like that happen at all?
A. Something similar yes but not like that.
Q. What do you say similar happened? (T96)
62 The Appellant then gave evidence about the two occasions on which he alleged the complainant had approached him.
63 This interconnection was repeated in the trial judge's summing-up. Her Honour outlined the evidence on both sides with respect to counts 2 and 3 (at pp14-15), then, at this point, her Honour referred to the evidence both in cross-examination of the complainant and in the Appellant's own evidence, about the two occasions when he alleged CJ came into his room uninvited and touched his penis (summing-up pp15-16). It is quite clear that the evidence with respect to counts 2 and 3 was linked in the course of the trial to the allegation that CJ had initiated the relevant sexual conduct.
64 There are a significant range of permissible options with respect to this body of evidence. This Court is not in a position to know what it was that led at least some members of the jury to distinguish the evidence on these counts from the counts upon which the jury unanimously returned a verdict of guilty. There was a distinction in the evidence in two respects. On the occasions of counts 4 and 6 digital penetration had also occurred, reflected in counts 5 and 7. Furthermore, the evidence to the effect that the complainant had made a sexual approach on two occasions, was clearly referrable to the allegations involved in counts 2 and 3. There was scope for disagreement within the jury with respect to counts 2 and 3.
65 The acquittal on count 1, together with the failure to agree on counts 2 and 3, indicates that the jury had attended carefully to the directions they were given and had carefully weighed the evidence with respect to each count.
66 This is not a case in which the acquittal or inability to agree with respect to some counts is such as to suggest that the jury must have had some doubts about the complainant's credit. This is a case in which the jury carefully attended to the evidence and took into account the whole of the evidence with respect to each count separately.
67 As is usually the case, the jury was expressly directed that they were not obliged to accept the whole of the evidence of any witness and that they could accept part and reject part. This, of course, applied to the evidence of the complainant. The jury was also given the usual direction that each count had to be treated separately. It was also directed, in terms, that it had to accept the evidence of the complainant in order to convict. As noted above, she was described as an essential witness and the jury was told that all of the charges depended on their acceptance of her evidence. The jury were also warned, in terms, that if they were not satisfied beyond reasonable doubt about CJ's truthfulness or reliability in relation to one count, then that had to be taken into account in assessing her truthfulness or reliability on her evidence generally.
68 In the light of these directions, the jury was entitled to reach the verdicts that they did with respect to the counts on which they did not convict. More significantly, however, for present purposes is the care in approaching their task which is manifest in the fact that the jury did not simply accept the complainant's evidence in all respects, and the differentiation between the acquittal on count 1 and the inability to agree on counts 2 and 3.
69 The two matters to which I have referred above lead me to conclude that the Appellant has not lost a real chance of acquittal. The strength of the direction actually given and the careful attention which the jury gave to the case, particularly the evidence of the complainant, is such as to justify the application of the proviso in this case.
70 In my opinion, the appeal should be dismissed.
71 SULLY J: I have had the privilege of reading in draft the judgments of both the Chief Justice and Hulme J.
72 As to the first trial, I agree with the orders proposed by Hulme J and with his Honour's reasons for those orders.
73 As to the second trial, too, I agree with the orders proposed by Hulme J. I agree in general with his Honour's reasons for those orders.
74 The Chief Justice comes to a different conclusion in connection with the second trial, and does so in substantial part upon the basis of his Honour's views concerning what is required in connection with the so-called Longman direction. In deference to the Chief Justice I wish to say for myself something about that aspect of the current law.
75 The judgment which I wrote in BWT (2002) 54 NSWLR 241 was intended to achieve two broad objectives. One was to synthesise, as best that could be done, the opinions variously expressed in the judgments of the many Justices of the High Court who had decided the then leading High Court cases of Longman (1989) 168 CLR 79; Crampton (2001) 206 CLR 161 and Doggett (2001) 208 CLR 343. The other was to make a restrained but frank protest against the very burdensome task, as I then saw it and as I continue to see it, of any trial Judge called upon to direct a jury faithfully in accordance with the law as established by those three High Court decisions, and at the same time faithfully in accordance with copious exhortations by variously constituted Benches of this Court as to the need for clarity, simplicity and brevity in the framing of a jury charge in any criminal case.
76 In paragraph 95 of my judgment in BWT I set out as best and as clearly as I could what seemed to me to be the propositions of law that were derivable from the three High Court decisions. The propositions thus stated at 3, (b) and (c), in particular, were not intended to be an exercise in abstract jurisprudence. They were intended to give a practical answer to any trial Judge who asked the practical question: "What must I say to this jury if I am to have a proper professional confidence that whatever it is that I do say will withstand revision by those who will come later to it with the benefit of hindsight?".
77 The Chief Justice draws attention to subsequent decisions of which his Honour remarks that the BWT analysis "has not been adopted in other cases". Five decisions are thus cited: one, a decision of this Court constituted by Meagher JA, Simpson and Howie JJ; a further two, decisions of the Western Australian Court of Criminal Appeal; and the remaining two, unreported decisions of what I take from the citations to have been the Western Australian Court of Appeal.
78 The one decision of this Court is DBG (2002) 133 A Crim R 227. The principal judgment is that of Howie J. I have read, in particular, the paragraph, paragraph 28, of that judgment to which the Chief Justice particularly refers. Paragraph 28 reads:
"The second ground of appeal asserts that his Honour erred in law in failing to warn the jury that it was "dangerous to convict" on the evidence of the complainant. Support for this ground of appeal is said to be found in the decision of the High Court in Longman (1989) 168 CLR 79; 43 A Crim R 463, and a long line of decisions both of the High Court and this court dealing with the proper warnings, comments and directions to be given in cases where there has been a lengthy delay between the date of the alleged offence and the trial of the accused for that offence. It is unnecessary in the present case to do more than acknowledge their existence. But I do not believe that they reveal that a rule of practice or of law existed at the time of this trial requiring that the jury be directed that it would be dangerous to convict on the evidence of the complainant whenever such delay had occurred."
79 Insofar as it might be correct to say of that passage that it does not adopt the BWT analysis, then it seems to me to be equally correct to say that neither does the passage seriously question, let alone express reasoned disagreement with, the BWT analysis. Other aspects of that analysis are, indeed, adopted in paragraph 33 of his Honour's judgment: at least as I read that paragraph.
80 Of the two reported Western Australian decisions, one: Crisfio (2003) 27 WAR 169 expands a little upon the earlier decision, which it otherwise adopts and applies, of Christophers (2000) 23 WAR 106.
81 In Christophers, Owen J, Pidgeon and IPP JJ concurring, lists in paragraph 37 of his Honour's judgment eight particular propositions. The only ones of them to have particular present relevance are those numbered 6 and 8. They read:
"6. There is no prescribed or ritualistic formulation in which the warning is to be delivered: see James v The Queen [2000] WASCA 100 at [23]. It must be tailored to the features of the case that have dictated that it be given. This is not surprising given that it arises from the circumstances of the particular case.
…………………………………………………………………….
8. Although the word "dangerous" is used from time to time in the judgments in Longman , the adequacy of the warning in any particular case is not necessarily sensitive to whether that phrase was uttered: Gaulard v The Queen [2000] WASCA 218 at [14]. What must be brought home to the jury is that they need to be "persuaded of the truth and accuracy of the evidence before they may place reliance on it": see James at [22]. In this context, "truth and accuracy" equates to reliability."
82 In Crisfio, Murray J, delivering the principal judgment of the Court, and having referred to the propositions stated by Owen J in Christophers, said:
"28. In the later case of Allegretta v The Queen [2003] WASCA 17, the judgment of this court was given by Roberts-Smith J, with whom Malcolm CJ and McKechnie J agreed. The trial of sexual offences was held in 2002. It appears that the offence principally charged was that of having a sexual relationship with a child under the age of 16. It seems that the relationship was said to have commenced in 1995 and continued from 1996 until the end of 1999, a period during which the complainant alleged that she resided with the applicant in his home. The applicant gave evidence and called witnesses, including his wife. His case was that he did not sexually interfere with the complainant in any way at any time. He said he first met her in 1996 and she only came to live in his house in about July 1998. The first complaint of the matter occurred in March 2000, about five years after the complainant alleged that the sexual activity commenced.
29. The trial judge did no more than urge the jury "to be very careful in your analysis of the evidence" because of the delay, the lack of direct corroborative evidence and because the complainant was, at the beginning, a relatively young child of perhaps 12 or 13 years of age.
30. Roberts-Smith J referred particularly to the fact that the applicant relied on R v BWT (2002) 54 NSWLR 241, a decision of the Court of Criminal Appeal of New South Wales. His Honour recounted at some length passages from the various judgments in that case, including some bearing on the content of the warning. His Honour noted the decision of Sully J who analysed the relevant High Court authorities and set out in a number of propositions what, in short form, his Honour thought the law to be. As to those propositions and particularly in respect of their reference to the content of the warning, Roberts-Smith J (at [105] ) said that whether or not those propositions were all "necessarily strictly applicable in the way presented by his Honour" did not fall to be decided in Allegretta . The ratio of that decision, so far as it concerns what may be described as the Longman direction, is that such a direction was required in the instant case and what had been said by the trial judge in that case "fell significantly short of such a warning".
31. The case of Christophers was not referred to by Roberts-Smith J in Allegretta and it does not appear to have been cited to the court. The summary of the law by Owen J in that case is not on all fours with the summary adopted by Sully J in BWT ."
83 Malcolm CJ, in a brief concurring judgment, said:
"In my opinion, the summary of the relevant law by Owen J in Christophers (at [37] ) set out in eight propositions is an accurate statement of the law. In particular, I agree with Owen J that, although the word "dangerous" is used from time to time in the judgments in Longman v The Queen (1989) 168 CLR 79, the adequacy of the warning is not necessarily dependent on the use of that particular expression or any similar expression." (27 WAR, 170)
84 Parker J, also in a brief concurring judgment, added:
"While the purpose of the direction required is to warn the jury of the dangers of conviction which may not otherwise be apparent to them, it is not the effect of the decision in Longman , or the other relevant authorities, that the words "danger of conviction" or "warning" must be used. What is critical is that the necessary effect be achieved by the directions given, it being desirable that the direction is adapted to the particular circumstances of the case."
85 Owen J's stated principles having been thus endorsed, I return to the two particular principles extracted above and make the following observations about them: