[9] There was no application, either by the Crown Prosecutor of by counsel then appearing for the present appellant, for re-directions.
64 The submissions put for the appellant can be stated conveniently by referring, once again, to the relevant written submissions. Those submissions propound the following propositions, omitting references to curial decisions:
"5.3 It is submitted that the directions were inadequate in the circumstances of the present case and in particular that, taken as a whole, they did not constitute a proper warning against the dangers of conviction.
5.4 The directions in the present case did not 'warn' or 'caution' the jury. At most the directions constituted a comment on the need to scrutinise the evidence 'with some care' while the circumstances required a strong warning against the dangers of conviction."
65 The propositions thus advanced raise for consideration important questions of principle that have been the subject in recent times of three separate decisions of the High Court of Australia: Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 176 ALR 369; and Doggett v The Queen (2001) 182 ALR 1.
66 The gradual development of this line of jurisprudence in the High Court has given rise to a spate of decisions by variously constituted Benches of this Court. One of those decisions, Reg v Johnston (1998) 45 NSWLR 362 was decided prior to the two decisions in Crampton and in Doggett; but it will be useful for present purposes to refer later herein to some of the observations made in that case.
67 The decision in Johnston apart, the year 2001, to take it as an example, yielded at least the following decisions: The Queen v Dixon [2001] NSWCCA 39; Mason P. Giles JA and Whealy; delivered 16 March 2001; Reg v Roddom [2001] NSWCCA 168; Meagher JA;Sully and Howie JJ; delivered 23 April 2001; Reg v G.J.H [2001] NSWCCA 128; Stein JA, Wood CJ at CL and Studdert J; delivered 24 April 2001; Reg v Ball [2001] NSWCCA 352; Bell and Howie JJ, Smart AJ; delivered 5 May 2001; Reg v Murre [2001] NSWCCA 286; Giles JA, Hulme and Adams JJ; delivered 27 July 2001; Reg v Roberts [2001] NSWCCA 163; Giles JA, Howie J and Carruthers AJ; delivered 5 October 2001; Reg v Folli [2001] NSWCCA 531; Mason P, Sperling and McClellan JJ; delivered 19 December 2001.
68 I do not propose to canvass discursively, in what follows herein, each of those decisions from last year. All of them refer to, are based upon, and, generally speaking, quote extensively from one or more of the three High Court decisions previously herein mentioned. Each turns, ultimately, upon its own particular facts. There are, in one or two of that succession of decisions, occasional observations which seem to me to be useful for present purposes; but those references apart, it seems to me to be more useful to concentrate upon the three High Court decisions.
69 Longman was concerned primarily with the construction and the application of section 36BE of the Evidence Act 1906 (W.A). That section, put simply, effected two changes to the antecedent law in Western Australia: first, the section abolished any requirement, whether by rule of law or by practice, that a Judge presiding at a criminal trial with a jury give in relation to any offence of which the accused person might be liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and secondly, forbade the Judge to give such a warning in any event unless he was satisfied that such a warning was justified in the circumstances of the particular case.
70 Brennan, Dawson and Toohey JJ gave a joint judgment. It is not until the concluding passages of that joint judgment, and only after their Honours had canvassed the proper construction and application of section 36BE, that their Honours added the observations which have given rise to the body of subsequent curial decisions to which I have earlier herein referred. Their Honours said:
"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) ……… 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." (168 CLR, 91)
71 Deane J and McHugh J gave separate judgments. Their Honours agreed with the ultimate orders proposed by the joint judgment of Brennan, Dawson and Toohery JJ; but each of their Honours reasoned to that common conclusion in a way that is not precisely the same as the reasoning in the passage quoted above from the joint judgment.
72 The considerations that weighed upon Deane J were summarised by his Honour in the following passage of his Honour's judgment:
"It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance. The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The border-line between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant's evidence of the alleged offences which was not given until so long after the alleged occurrence required to be scrutinised with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant's guilt." [168 CLR, 101]
73 McHugh J expressed as follows his Honour's essential process of reasoning:
"No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrate only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her step-father. She testified that, because of his conduct towards her in sexual matters, 'I don't hate him but I do hate what he's done and the problems caused in my life'. However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred.
To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.
Accordingly, the 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." [168 CLR, 108, 109]
74 The decision in Longman was handed down on 6 December 1989. On 10 October 1996 the High Court handed down its decision in Crofts v The Queen (1996) 186 CLR 427. That decision concerned the proper construction and application in a criminal trial by jury of section 61 of the Crimes Act 1958 (Vict.). The comments made about the decision in Longman were not directed in any particular way to the statements of principle earlier herein quoted from the joint judgment of Brennan, Dawson and Toohey JJ in Longman.
75 On 31 July 1998 this Court, (Spigelman CJ, Sully and Ireland JJ), handed down its decision in Reg v Johnston, to which I have earlier herein referred. The judgment of the Chief Justice was the subject of a simple concurrence from each of the other two members of that particular Bench. The judgment of the Chief Justice contains an extensive discussion of various post-Longman decisions. That discussion by the Chief Justice is crystallised by his Honour into a series of propositions expressed as follows:
"(i) Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair.
(ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt.
(iii) The need for, and content of, any comment will depend on the circumstances of the case.
(iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case.
(v) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties.
(vi) Where the summing-up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate.
(vii) In some cases a warning which uses terminology such as 'dangerous' or 'unsafe' to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v)." (45 NSWLR, 375B - F)
76 At the time Johnston was decided, I was of the opinion, and I remain of the opinion, that the propositions thus summarised by the Chief Justice are entirely consonant with the essential reasoning of both the joint judgment, and the two separate judgments, in Longman. It seems to me that the Chief Justice's propositions hold a sensible and practical balance between, on the one hand, the dutiful application of the Longman principles; and, on the other hand, the need to recognise and to maintain the well-recognised principle that appellate review of the summing-up in a criminal trial cannot be, or at least ought not to be, divorced from a prudent and sensible regard to the way in which the particular trial was conducted; and the way in which the issues for trial were articulated, respectively by the Crown and by the defence, for the consideration of the jury. That perception of the Chief Justice's summarised propositions was clearly shared by the Bench of this Court, (Wood CJ at CL, Barr and Greg James JJ), that decided Reg v J.G.W [1999] NSWCCA 116; delivered 23 June 1999. Wood CJ at CL, delivering the principal judgment, refers to the Chief Justice's propositions, and continues, (at paras 58, 59 and 60):
"58. It is true that his Honour did not specifically deal with the potential adverse effects for the defence, in relation to the delay in complaint. The case was not one, however, where any specific difficulties were identified that may have affected the ability of the appellant to test the evidence of the prosecution, or to adduce evidence in relation to the counts that were preserved. The defence case was one of deliberate concoction to assist ……….(the particular complainant's ………….) mother in securing a separation. It was on that basis that the trial was fought, and nothing was identified then, or on appeal, to suggest that the appellant might have been prejudiced through delay: cf PAH (Court of Criminal Appeal NSW 18 December 1998).
59. Although it would have been desirable for his Honour to have adverted, in a little more detail, to the aspect of delay, no request for any further warning was made by experienced trial Counsel.
60. In these circumstances I am of the view that sufficient instruction was given to the jury by way of a Murray direction concerning the general need to scrutinise the evidence of the complainant with care ………………, and by the Crofts direction concerning the consistency or inconsistency of conduct associated with the complaint previously mentioned."
77 Absent subsequent authority to the contrary, it would be my view that the approach thus taken by the Chief Judge at Common Law would be precisely and justly applicable to the given facts of the present case.
78 On that approach, it becomes necessary to consider whether the subsequent High Court decisions in Crampton and in Doggett have (a) expanded the horizons of Longman; and if so, (b) have done so in a way that contradicts in whole or in part the propositions summarised by Spigelman CJ in Johnston.
79 The decision in Crampton was handed down on 23 November 2000. As best I can see from the report in the Australian Law Reports, Johnston was not cited in argument, and is not referred to in any of the judgments.
80 Crampton dealt with a number of issues of which the so-called Longman direction was but one. Gleeson CJ approached the non-Longman points in a way that made it unnecessary for his Honour to discuss the effect of Longman upon the facts of Crampton.
81 Gaudron, Gummow and Callinan JJ delivered a joint judgment which contained, among other things, an extensive discussion of Longman. Their Honours noted that the trial with which they were concerned had commenced about 20 years after the alleged events giving rise to it. Their Honours quoted as follows the "comments" initially given to the jury during the course of the summing up at trial:
"Clearly you have to look carefully at the circumstances in which there has been no complaint at the time. But those matters to which I referred are also matters which you must take into consideration and give some thought to. You had the chance to observe both young men in the witness box and to assess their level of sophistication, even now in their early thirties. It is important that you look at the way in which they told you about these matters and the explanation they gave for not having complained earlier, when they were asked about those issues in cross-examination.
Late complaint, of course, necessarily has some potential disadvantages to the accused because it reduces his opportunity to explore the matters complained of in some ways or it has that potential. First of all, of course, memory of events tends to decrease and become vaguer. However, in this case, the accused says it did not happen. Not only did it not happen, there was never an opportunity for it to happen, never an occasion when it could have happened, never an occasion when there could have been a misunderstanding about what was happening. It is quite clear that the accused says there is no occasion of this nature or occasion when it might have been misunderstood. Two things arise, of course, when there is a delay in complaint. One is the opportunity of the accused perhaps to look at matters which were happening at about that time and to raise them in evidence. Also, the capacity of the complainants to be accurate is probably reduced and that may raise some greater difficulty in cross-examination of them. It may also, of course, explain some errors in the recollection."
82 It seems that the trial Judge was asked, at the conclusion of the summing up, to amplify her directions and to give a stronger and more precise direction of the kind which, as it was apparently submitted, was required by Longman. The trial Judge acceded to the submission, to the extent of putting the following amplified directions:
"Finally, I just want to make it very clear about this, the matters are to be looked at separately. There is no supporting evidence so that the evidence in one cannot be used in another. The evidence of one complainant cannot be used to support the evidence of the other. There was a very long period in which there was no complaint. The complaint came late. You must take that into account and the circumstances in which it came into existence, and what the complainant, that is [the relevant complainant] who was the only one who complained of course, had to say about that. There was no complaint as such from [the other complainant]. He told the police about it when he was approached by the police following the complaint by [the relevant complainant]. You will be aware that in the circumstances of a twenty year delay that clearly those are all matters which you are going to consider. You are going to consider motive, the opportunity to concoct, the reason why that might be. You are going to look very carefully at the nature and circumstances in which that complaint came into existence. Those are all matters that you will bear in mind when you consider the case for the accused."
83 The joint judgment, at paragraphs [44] and [45], deals as follows with the submission that the directions given at the trial, even in their amplified form, were inadequate to satisfy the requirements of Longman:
"[44] As the appellant submits, the first reference by the trial judge to delay was followed by an observation which could have diminished the effect of the caution - it did fall short of a warning - against acting on the evidence of the complainant of a complaint so long delayed. To say what her Honour did in the first passage from her summing up that we have quoted was to say too little, too unemphatically, and less than what Longman required be said in the circumstances of this case. The re-direction, which we have also quoted, suffered from some of the same or similar deficiencies.
[45] The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. 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. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman : the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion."
84 McHugh J delivered a separate judgment; but it is brief, and so far as is at present relevant, it agrees with the joint judgment of Gaudron, Gummow and Callinan JJ that the case called for a Longman direction; and that the directions in fact given by the trial Judge did not satisfy that requirement.
85 Kirby J, too, delivered a separate judgment. His Honour, too, was of the opinion that what had been said by the trial Judge was inadequate to satisfy the proper requirements in the particular case of Longman. His Honour discussed at length the requirements that are established, as matters of law, by the decision in Longman. His Honour says, relevantly:
[125] The law on this subject is stated in Longman . It has been repeated in a number of decisions involving delays very much shorter than in the present case. It is important to note the distinction made by the majority in Longman between comment (which a trial judge may and sometime should give to ensure the fairness of the trial) and a warning (which in circumstances of 'long delay' it is 'imperative', in the sense of obligatory, that the trial judge must give to the jury).
[126] Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser.
[127] The law recognises that there may, on occasions, be cogent reasons why a child or young person does not make a prompt complaint about sexual misconduct. …………………… . It will usually be proper for the trial judge to bring appropriate considerations to the specific notice of the jury by way of comment . Such considerations do not, however, relieve the trial judge of the paramount duty imposed by the law ………………… to ensure the fair trial of a person accused of a serious criminal offence. It is to uphold that basic right, in the context of jury trial, that such judicial warnings must be given.
……………………………………………………………………………..
[129] The warning in a case involving a long delay between an alleged offence and a complaint is, in part, an element in the balance required by the law in such matters. In overseas jurisdictions courts have been more willing than they appear to have been in Australia to provide a permanent stay of proceedings to protect accused persons from the injustices that can arise in attempting to mount a defence to such charges years, or even decades, after an alleged offence occurred. But this has been so, in part, because Australian courts know that Longman obliges trial judges, in cases such as the present, not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial.
[130] The warning required by Longman must be, in the words of the joint reasons in this case, 'unmistakable and firm'. It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after 20 years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, 20 years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant.
[131] Twenty years after the alleged offence, the first complainant was an adult whose life experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability. Repeated answers to questions, searching the detail of the first complainant's testimony, such as 'I can't remember' or 'it's too long ago' made it extremely difficult to test that evidence in an effective way.
[132] The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. The idea is contrary to the repeated authority of this court in and since Longman . The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms."
86 The remaining member of the particular Bench, Hayne J, also discussed in some little detail the Longman point. The relevant portions of his Honour's discussion are as follows:
"[139] The evidence before the jury was, therefore, of the kind that is not uncommon in cases of this kind. The complainant alleged that there had been inappropriate sexual behaviour by the appellant. There was no witness to the conduct. It was alleged to have occurred many years ago, when the complainant was young. The appellant denied any misconduct. What instructions should the trial judge give the jury in such a case?
[140] The critical feature of the circumstances I have described is that many years had elapsed between the time of the alleged conduct and the accused being put on notice of the allegations. That lapse of time inevitably meant that the accused was put at a significant disadvantage, of a kind and to an extent which a jury might not appreciate without proper directions. In Longman v R , this court described the instructions that should be given to the jury in these circumstances. …………………… [his Honour then quoted portion of the passage earlier herein quoted from the joint judgment in Longman ] ……………….. .
[141] The trial judge did not give such a direction in this case. Nowhere did the trial judge speak of the dangers of convicting the appellant on the complainant's evidence alone.
[142] The trial judge did comment about the fact that the complainant made no complaint about the appellant until long after the incident was alleged to have occurred. As the trial judge said to the jury, this deprived the appellant of an opportunity to 'look at matters which were happening at about [the time of the alleged incident] and to raise them in evidence' and it probably reduced the capacity of the complainant to be accurate. As the joint judgment in Longman points out, it was proper to remind the jury of considerations relevant to the evaluation of the evidence and these were considerations of that kind. But what has come to be known as a ' Longman warning' is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many 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. That warning was not given."
87 The decision of the High Court in Doggett was handed down on 9 August 2001. Five Justices of the High Court sat to consider the appeal. Gleeson CJ and McHugh J, delivering separate judgments, were of the opinion that the appeal should be dismissed. The remaining three members of the Court, Gaudron and Callinan JJ in a joint judgment, and Kirby J in a separate judgment, were of the contrary opinion. All of the judgments have a great deal to say about the true purport and the correct application of the decision in Longman. The resulting medley of opinions reminds one, if I may so with unfeigned respect, of the observation of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476, when their Honours, having articulated the various purposes of criminal punishment, remark:
"They are guideposts to the appropriate sentence but sometimes they point in different directions."
88 Gleeson CJ, having observed that: "(a)s the case was fought, delay in complaining, and any resulting forensic disadvantage to the appellant, was not an issue of which the defence sought to make substantial capital", said at paragraph [10]:
" Longman v R is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be 'dangerous' or 'unsafe' to convict on the uncorroborated evidence of the complainant. …………………… ."
89 McHugh J put the point more discursively, but, as I understand what his Honour said, essentially to the same effect as the proposition advanced by the Chief Justice. McHugh J dealt with the Longman point, relevantly, as follows:
"[80] What was critical in Longman was that the jury were being asked to convict on uncorroborated evidence of events occurring 20-25 years before while the complainant, then a young child, was asleep or waking. It was a reasonable possibility that, although the complainant was an honest witness, her testimony was mistaken or unreliable by reason of her age at the time of the offences, the long delay in complaining and the fact that she was asleep on the occasions when both offences were alleged to have commenced. The court took the view that the jury may not have appreciated the danger of relying on the evidence of an apparently honest witness concerning events that had allegedly occurred under such circumstances. Thus, the special circumstances of the case required a warning that it was dangerous to convict on the uncorroborated evidence of the complainant unless her evidence was scrutinised with great care.
[81] But the present case is very different. There was no chance of the complainant being mistaken. She was either telling the truth or lying. There was very strong corroborative evidence of her evidence. As a general proposition, it cannot be dangerous to convict on the evidence of a person whose evidence is corroborated. Nor did the jury need to be warned that it was dangerous to convict on her evidence because of delay or the circumstances of the alleged offences. That would be tantamount to introducing a new class of suspect witness into the law. Moreover, the delay in this case was not nearly as long as in Longman and the circumstances were very different. The complainant's mother confronted the appellant in 1988, two years after the last offence although nine years after the first offence and there was no chance that the complainant's evidence was honest but erroneous because of the time that had passed."
90 McHugh J made some additional observations which, although not relevant, strictly speaking, to the Longman point as such, have a more general relevance in the light of what I have previously herein written. His Honour said:
"[94] The trial judge would certainly have been entitled to comment to the jury that, if the appellant had been given better particulars, he might have been able to show that he was not at the house on any of the alleged occasions. Some trial judges may have thought it necessary to make such a comment. But the law did not require the judge to give a direction to that effect. I think that it is underestimating the intelligence and the worldly experience of jurors to think that as a class they would not appreciate that, in a case like the present, the accused is not in a position to do much except deny the charge. I suspect that most jurors would see the lack of particulars as damaging the Crown, rather than the defence case.
[95] The trial judge was in the best position to determine whether this jury needed a direction that the delay may have prevented the appellant from testing the prosecution case or preparing his defence. …………………………… Except where the due administration of justice clearly demands that juries be directed as to particular matters, the contents of summings up are best left to the discretion of those who preside at criminal trials. They are in the best position to determine what needs to be said to the particular jury.
[96] The appellant in this case was represented by experienced senior counsel. He did not think it necessary to ask for any directions. That is strong evidence that the trial judge was justified in thinking that there was no need for a comment or direction concerning the appellant's inability to test the prosecution case or prepare his defence. For all we know, counsel for the appellant may have made this point to the jury again and again."
91 The nub of the joint judgment of Gaudron and Callinan JJ is the proposition that the corroborative evidence which had been led at the particular trial had not itself been sufficient to displace the obligation on the trial Judge to give a Longman direction. Their Honours support that proposition upon the basis of seven stated considerations. The fifth and seventh of those considerations are, in my view, particularly relevant for present purposes. The passages in the joint judgment are:
"[51] Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, of more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.
[54] Seventhly, the approach of the Court of Appeal involved to some extent an inversion of reasoning. The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary. That exercise should more appropriately be carried out in the overall assessment of the case, if and after error has been established, to enable the court to decide whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied."
92 The remaining judgment, that of Kirby J, contains a lengthy and detailed review of the principles established by the Longman decision, and of the practical implications in particular cases of those principles. It is not possible to compress the judgment fairly into a summary paraphrase. I have attempted, therefore, to pin-point in the judgment some particular paragraphs which seem to me to bear in a particular way upon the problem posed by the present particular case. There are two groups of relevant propositions.
93 The first group of propositions is as follows:
"[126] Long delays - obligatory warnings : It would not ordinarily be expected that jurors would be aware of the findings of experimental psychology or of the common experience of forensic contests, and other data supporting the reflections about memory, mentioned in Longman . Judges, on the other hand are, or should be, aware of such matters. That is why, in a case of long delay, a warning must be given to a jury. A comment, or reliance on the comments or arguments of counsel, would not, in such cases, be sufficient.
[127] The criterion for the provision of a warning as stated in Longman is not mathematically precise. For example, in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary. However, the longer the delay, the clearer is the obligation to give the warning to the jury along the lines at least of that stated in the joint reasons in Longman . In an appropriate case, it would also be as well for the warning to contain reference to the additional consideration mentioned by Deane J and McHugh J in their separate reasons.
[128] The present was obviously a case of 'long delay'. So much was conceded by the prosecution. So much could hardly have been contested given that the warning in Longman itself was required in a case involving comparable delays. Similar warnings have been required in this and other Australian courts in circumstances in which the delay was much shorter than it was in the present case. On the face of things, therefore, a 'full' Longman warning was required in this case."
94 The second group of propositions is:
"[134] To ascertain whether, apart from the circumstances of lack of corroboration, warnings of the kind required by Longman are necessary, it is therefore essential to address the particular mischief which the judges in Longman identified. 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 tends to be brought to the notice of a jury in such cases.
[135] Such special knowledge is not necessarily answered by the existence, in a particular case, of some evidence corroborating some, or all, of the complaints in question. ………………….. (W)here (as here) the corroboration is patchy, in some respects unspecific and in others completely silent on the incidents referred to in the charges, the mere fact that corroborative evidence of some kind exists will not entirely remove the utility, and the necessity, of a Longman warning.
[136] In a number of cases in state courts the existence of some corroborative evidence has been not to relieve a trial judge of the duty to give a Longman warning where the considerations identified in Longman are or might still be relevant. In my opinion, this is the correct approach. To the extent that a jury might, in their reasoning, rely on an acceptance of the complainant without taking into account the special forensic dangers mentioned in Longman , those dangers will remain. In cases of long delay that fact will impose the duty to give a Longman warning so that the jury will take it into account in reaching their verdict."
95 I have come, based upon the foregoing survey of curial authority, to the following conclusions: