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[2003] NSWCCA 73
appellant. Appeal against convictions allowed. Convictions and sentences quashed. New trial ordered in relation to all counts.
The appeal succeeded because the jury was not properly warned about how the long delay affected GS's ability to test and answer the complainant's allegations. The judge asked the jury to decide whether GS had lost a fair trial and whether it was difficult for him to prove his innocence. The Court considered that framing wrong and potentially confusing. The other complaints did not establish a miscarriage of justice. The convictions and sentences were quashed, and all counts were sent for a new trial.
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Regina v GS concerned an appeal from convictions on ten counts alleging sexual misconduct against a complainant who was the daughter of GS's de facto partner. The alleged conduct covered the period from May 1988 to February 1996. The complainant was born in January 1981, so she was aged 7 at the time of the first alleged offence and 14 or 15 at the time of the last one ([2]). The complainant first complained to police on 27 January 1999 ([5]).
No linked legislation citations have been extracted yet.
The Crown case depended on the complainant's evidence. The appeal judgment notes that the Crown accepted at trial that there was no other evidence supporting her account ([8]). Her mother and sister gave evidence about family circumstances and places of residence, and records from schools and the Mulwaree Hotel were tendered, but those matters did not provide direct corroboration of the alleged offences as described in the judge's summing-up ([5], [8]).
GS denied the allegations in sworn evidence ([6]). The jury convicted him on all ten counts. He received an effective sentence of four years' imprisonment, with a non-parole period of two years ([2]). He appealed on three principal grounds: that the summing-up mishandled the onus of proof and delay; that the jury was not properly warned about uncharged sexual acts; and that the judge failed to assist the jury after it asked for the complainant's statement and transcripts ([3]).
The Court of Criminal Appeal upheld the complaint about the delay directions. It rejected the other two grounds, but allowed the appeal, quashed the convictions and sentences, and ordered a new trial on all counts ([47]). The judgment was delivered by Buddin J, with Santow JA agreeing and Smart AJ agreeing with the orders and reasons while adding observations ([1], [48]).
The central issue was the effect of delayed complaint on the fairness of evaluating the complainant's evidence. Buddin J treated Longman, Crampton and Doggett as requiring a warning that does more than tell jurors to be cautious. It must explain that delay has deprived the accused of opportunities to test and meet the allegations, and must warn that it would be dangerous to convict on the complainant's evidence alone unless the jury, after very careful scrutiny, was satisfied of its truth and accuracy ([7], [10]-[15]).
The directions given at trial included several cautionary statements. The judge told the jury to scrutinise the evidence carefully, noted the absence of corroboration and complaint, and referred to delay and the difficulty of cross-examining a witness years later ([8]). The Court's concern was not that the topic had been omitted entirely. It was that the judge framed the jury's task in a way that did not convey the legally significant disadvantage.
First, the jury was asked whether GS had “lost a chance of obtaining a fair trial” because of the delay ([18]). Buddin J considered that the question put a false issue before the jury. The jury's task was not to decide whether the trial had crossed a threshold of unfairness. It was to assess the complainant's evidence in light of the disadvantage caused by delay and the resulting difficulty in testing that evidence ([18]). The fair-trial formulation could also encourage a negative answer, after which the jury might put aside the relevance of delay to the complainant's credibility ([18]).
Second, the judge asked whether delay made it difficult for GS “to prove his innocence” ([19]-[20]). Buddin J did not conclude that the judge had reversed the onus of proof, particularly given the other directions on the burden and standard of proof. However, he held that the language could dilute those general directions and confuse or mislead the jury ([20]). That distinction matters: the appeal was allowed because the directions were materially deficient, not because the Court found that the jury had actually applied a reversed burden.
Third, the directions did not sufficiently explain what the forensic disadvantage consisted of. A general reference to the difficulty of recalling details was inadequate. The jury needed to understand that, had complaint been made earlier, the defence might have explored the circumstances in detail, investigated possible sources of evidence, and tested the account while memories were fresher ([22]-[24]). The judgment identifies practical disadvantages including diminished capacity to cross-examine effectively and lost opportunities to locate witnesses or gather information ([14], [23]-[24]).
The circumstances made the omission important. The complainant was a young child when the allegations began; her evidence was uncorroborated; discrepancies between her police account and trial evidence emerged in cross-examination; and complaint was delayed ([17]). Buddin J also observed that the jury should have been directed to the potential effect of delay on a person's recollection of events experienced in childhood, as discussed in Longman ([25]).
Smart AJ's additional observations emphasise why the disadvantage may be difficult to demonstrate. Delay can mean that a witness has died, records have disappeared, or relevant information has been forgotten without anyone knowing what is missing. He referred to the proposition that “what has been forgotten can rarely be shown” ([51]). He also explained how delay can weaken cross-examination: evidence may be vaguer and less detailed, while the passage of time may be offered as an explanation for missing detail or contradictions ([54]). These observations support the need for the warning, but do not alter the order or the core reasoning of Buddin J.
The Court did not accept the other grounds as independently establishing a miscarriage. On uncharged acts, the trial judge had not explained their limited use when the first such evidence was given, though he later directed the jury about the limits and warned against propensity reasoning ([29]-[32]). Buddin J treated the timing recommended in Beserick as a practice, not an automatic rule that every failure to follow it causes a miscarriage ([33]-[38]). On the jury's request, the statement was not evidence and there was no transcript available; the jury had not asked for a reminder of the relevant trial evidence, and defence counsel did not request one ([39]-[44]).
The judgment presents the Longman warning as an established response to substantial delay in complaint, developed through later High Court decisions in Crampton and Doggett ([7], [9]-[15]). Longman addressed a situation where the defence had lost means of testing the complainant's allegations that would have been available closer to the alleged events. The judgment stresses that the warning should be balanced and should acknowledge that there may be good reasons for a complainant's delay, while still explaining the disadvantage to the accused ([10]).
Crampton and Doggett are described as reinforcing the need for a clear and firm explanation of the forensic disadvantage. Crampton emphasised the loss of the “forensic weapons” that timely complaint may permit, including opportunities to test evidence, locate witnesses and recall what the accused was doing ([13]). Doggett highlighted that the problem is not confined to the accused's own memory: delay may also prevent the gathering of evidence about whereabouts or what other potential witnesses were doing ([14]).
Buddin J relied on the synthesis in R v BWT, which set out features of a compliant warning: it must be a warning, identify the inability adequately to test the complainant's evidence, explain the danger of conviction on that evidence alone, and require close scrutiny in light of the circumstances relevant to truth and accuracy ([15]). The judgment's contribution is its application of those requirements to the language used at this trial. Asking the jury to decide whether the accused had lost a fair trial or found it difficult to prove innocence was not an adequate substitute for telling them about the disadvantage ([18]-[24]).
The appeal did not establish a new legal test in place of those authorities. Rather, it applied them to identify errors in the trial directions and explained why those errors mattered. Smart AJ added that the effect of delay may be impossible to measure precisely and that the warning is intended to alert jurors to risks they may not otherwise appreciate ([61]-[63]). That is an explanation of the rationale for the warning, not a separate rule that every delayed complaint necessarily requires acquittal. The disposition itself demonstrates the distinction: the convictions were quashed, but a new trial was ordered ([47]).
At [18], Buddin J said that the question about whether GS had “lost a chance of obtaining a fair trial” raised a false issue and could distract the jury. In plain English, the jurors were not meant to decide whether the trial was unfair overall. They had to consider how delay affected their ability to assess the complainant's evidence.
At [20], Buddin J said that asking whether it was difficult for GS to prove his innocence could dilute the ordinary directions on the burden of proof. In plain English, the wording risked making it sound as though GS had to establish innocence, even though the Court did not find that the onus had actually been reversed.
At [21], Buddin J stated that the jury should have been told of the disadvantage caused by delay, rather than asked to decide whether such a disadvantage existed. In plain English, the direction should have explained the consequence of delay as part of the legal warning, not left the jury to determine whether delay had caused a relevant forensic problem.
At [23]-[24], the judgment explains that earlier complaint might have allowed detailed exploration of the allegations and the gathering of evidence that could challenge or support the competing accounts. In plain English, the lost opportunity was not limited to remembering events. It included investigating them while useful details, witnesses and records might still have been available.
At [63], Smart AJ stated that the warning alerts the jury to matters they may not have appreciated and encourages careful, thorough assessment. He also made clear that the warning does not prevent a conviction. In plain English, the direction is a safeguard for the evaluation of evidence, not an instruction to acquit.
The judgment concerns a prosecution in which a complainant made a delayed complaint about alleged sexual offences, and the delay affected the accused's ability to investigate, test or meet the allegations. It is especially pertinent to the kind of situation described here: allegations of historical conduct, a complainant who was a child at the time, evidence substantially dependent on that complainant, and gaps or inconsistencies capable of being explored through cross-examination ([17]-[25]).
The judgment does not set out a precise minimum period that automatically triggers the warning. It discusses “substantial delay” through Longman, Crampton, Doggett and BWT, and focuses on the delay's forensic consequences ([7], [15]-[16]). It also cautions, through the account of BWT, against treating the warning as a mere comment or a generic appeal to common sense ([15]).
The required explanation is sensitive to the issues in the particular trial. Smart AJ noted that the evidence needed to meet a case will differ depending on whether the dispute concerns whether an event occurred, consent, or knowledge of non-consent ([56]). His examples of documents, witnesses, whereabouts and surrounding circumstances illustrate possible categories, not a checklist that must be recited in every case.
The supplied judgment does not include decisions after Regina v GS, so it cannot establish how later courts treated this case as precedent. It does, however, explain the earlier authorities on which it relied and records contemporaneous NSW Court of Criminal Appeal decisions.
The judgment discusses R v BWT as a synthesis of Longman, Crampton and Doggett, including the need for a warning that is explicit, authoritative and focused on the lost ability to test and meet the allegations ([15]-[16]). It also discusses R v WRC for its explanation of why cross-examination loses potency over time ([24]). On uncharged acts, it refers to R v Beserick and R v TAB, distinguishing the recommended practice of giving an explanation promptly from the question whether a failure caused a miscarriage in the case at hand ([32]-[38]).
Those references show the reasoning structure adopted in 2003; they do not supply evidence about later judicial treatment. Any assessment of subsequent citation, approval or qualification would require later judgments not contained in the provided text.
The judgment does not specify a single threshold, measured in years, at which a Longman warning becomes necessary. It addresses the doctrine through the terms “substantial delay” and the practical effects of delay, without setting a numerical rule ([7], [15]-[16]).
It also does not define exhaustively how much detail a judge must provide in every warning. Buddin J identifies the shortcomings in this summing-up and the missing explanation of forensic disadvantage ([18]-[25]). Smart AJ offers examples of ways an accused might meet a case, but notes that the relevant evidence depends on the issue in dispute ([56]). The precise form of a warning therefore remains tied to the allegations, evidence and defence issues in each trial.
A further question is how the warning should interact with evidence that may support the complainant's account. Smart AJ considered Doggett to show that even corroborative evidence might not dispense with a warning, and suggested that few cases would justify dispensing with one, particularly where corroboration is challenged ([59]). His observation is expressly framed as a general view; the judgment does not establish a comprehensive test for every case involving corroboration.
Finally, the decision does not resolve the possible effect of every defect in a direction about uncharged acts. Buddin J rejected the ground on the circumstances before him, including the later directions, the nature of the evidence and the absence of a request from trial counsel ([33]-[38]). That conclusion should be read as a case-specific assessment, not as a statement that delayed or incomplete directions about uncharged acts can never cause a miscarriage.
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CITATION : Regina v GS [2003] NSWCCA 73 revised - 10/04/2003 HEARING DATE(S) : 19 March 2003 JUDGMENT DATE : 3 April 2003
JUDGMENT OF : Santow JA at 1; Buddin J at 2; Smart AJ at 48 DECISION : Appeal against convictions allowed. Convictions and sentences quashed. That there be a new trial in relation to all counts.
CATCHWORDS : Sexual offences - delay in complaint - sufficiency of "Longman" directions - use of evidence of "uncharged acts". LEGISLATION CITED : Criminal Appeal Rules Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 Crampton v The Queen (2000) 206 CLR 161 Doggett v The Queen (2001) 208 CLR 343 Longman v The Queen (1989) 168 CLR 79 CASES CITED : R v Beserick [1993] 30 NSWLR 510 R v BWT [2002] 54 NSWLR 241 Reg v Lawrence [1982] AC 510 R v TAB [2002] NSWCCA 274 R v WRC [2002] NSWCCA 210 PARTIES : Regina GS FILE NUMBER(S) : CCA 60165/02 COUNSEL : R Hulme SC (Crown) P Winch (Appellant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Appellant)
LOWER COURT District Court JURISDICTION : LOWER COURT 01/41/0028 FILE NUMBER(S) : LOWER COURT Coorey DCJ JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL 60165/02
SANTOW JA BUDDIN J SMART AJ
THURSDAY 3 APRIL 2003 60156/02 - REGINA v G S Judgment 1 SANTOW JA: I agree with the judgment of Buddin J and with the additional observations of Smart AJ. 2 BUDDIN J: The appellant was tried and convicted upon an indictment containing ten counts which alleged various forms of sexual misconduct on his part. The offences were alleged to have occurred during the period between May 1988 and February 1996. At the time of the alleged offences, the appellant was living in a de facto relationship with the complainant's mother. The complainant was born in January 1981 and was thus aged 7 at the time of the first offence and 14 or 15 at the time of the last of the offences. The appellant was sentenced to an effective overall term of four years' imprisonment with a non-parole period of two years, with both periods ordered to date from the 21 June 2001 which was the date upon which the jury returned with verdicts. As there is no application for leave to appeal against the sentences imposed, it is not necessary to make any further reference to that issue other than to note that the appellant is due for release on 20 June of this year. 3 The grounds of appeal in relation to the appellant's conviction are in the following terms:
(a) the learned trial judge directed the jury in such a way that the onus of proof was reversed .
(b) The learned trial judge misdirected the jury in relation to the impact of delay between the alleged offences and complaint.
2 The trial miscarried as a result of the failure of the trial judge to warn the jury of the use to be made of evidence of uncharged sexual acts.
3 The trial miscarried as a result of the trial judge's failure to assist the jury by reminding them of evidence when requested to do so.
The evidence 4 The evidence which was led at the trial from the complainant has been helpfully summarised in the Crown submissions. That summary appears below:
The complainant, C, an assistant nurse, was born on 26 January 1981. When she was younger, she lived in Kandos with her mother Mrs C, her father Mr C and her older sister M. When her parents separated, the complainant and her sister lived with their mother.
Prior to her parents' separation, the complainant's mother worked as a cook and also served at the counter in a cafe in Kandos called The Paragon Cafe. The appellant also worked there. The complainant and her sister M would often help out in the cafe by filling the drink fridge with drinks. The complainant was 7 years old at the time. She did this for a short time because her mother moved to Goulburn with the appellant not long after. Whilst the complainant lived in Kandos, she attended Kandos Public School.
Count 1. - Indecent assault and act of indecency, between 1.5.88 and 31.12.88, aged 7 - s.61 E(1 A) About one month after the complainant's mother started working at the Paragon Cafe and 6 months before she left to live in Goulburn, the complainant went to the back of the Cafe to obtain some bottles of drink. She was walking back with the bottles in her hand when the appellant rubbed the inside of her upper thigh with his hand. He then touched her on the vagina in a groping & grabbing motion. The appellant also touched the complainant on the breasts & chest. At the time the complainant had not yet developed breasts. The complainant did not say anything to her mother or sister who were at the front of the cafe. The same thing occurred on two other occasions. The first of these other two occasions happened not long after the incident the subject of Count 1, and the last of the incidents occurred two weeks prior to the complainant's mother going to Goulburn. This evidence was led as relationship evidence. Again, the complainant did not say anything to her mother, nor anyone at school because she "was a kid, I was scared". When the complainant's mother moved to Goulburn with the appellant, the complainant and her sister M went to live in Kandos with their father, Mr C. They lived with their father for about 4 months until he had a car accident. On the night that Mr C had the accident, the complainant's mother and the appellant came to pick up the complainant and M and took them back to Goulburn. Exhibit B is a record of Mr C's admission into St Vincent's Hospital after the accident. He was admitted on 27 April 1989 and discharged on 15 May 1989. When they moved to Goulburn, the complainant lived in Albion Street with her mother, her sister M and the appellant. The complainant had two other siblings; her brother B lived with her father, and her sister T was living with her boyfriend. The flat in Albion Street had two bedrooms, a bath and a shower, a living area, a kitchen and a laundry. The complainant shared a bedroom with M and the appellant shared a bedroom with the complainant's mother. The complainant did not attend school until about one month after moving to Goulburn. She then attended Goulburn North Public School. Exhibit C indicates that the complainant commenced her attendance at this school on 9 May 1989. Count 2 Indecent assault and act of indecency, between 1.3.89 and 9.5.89, aged 8 - s.61 E(1A) The complainant gave evidence that one day prior to starting at Goulburn North Public School, her mother and her sister had gone out shopping. Note that in cross-examination she agreed that in her police statement she said that she couldn't remember where her mother and sister were, she just knew that they weren't there at the time. It was daytime and the appellant was in the lounge room. The complainant was in the bath tub in the bathroom when the appellant came in. She was unclothed at the time. The appellant told her that "he wanted to have sex" with her. He removed his clothes and got into the bath tub with her. The appellant told her to lay down; he was on his knees. The appellant then rubbed his penis on the complainant's vagina. The complainant said that he did not do it for very long. The appellant then got out of the bath and got dressed. The complainant did the same. In cross-examination, the complainant stated that she did not tell her mother about what had happened because the appellant told her not to. She also stated that the bath tub was of a normal size. The complainant gave evidence that whilst she was living at Albion Street, the appellant would rub up against her fully clothed when there was no-one else around or no-one was looking. This would occur anywhere in the house. The appellant would rub his penis area against the complainant's side or arm. At the time, the complainant would have been about 120cm tall. The appellant would also grab her between her legs on the vagina. This evidence was led as relationship evidence. In cross-examination, the complainant stated that while they were living at Albion Street, the appellant worked at The Paragon and would come home from work late at night. Her mother did not work and was home most of the time. Count 3 Sexual intercourse (child under 10), between 1.10.89 and 16.7.90, aged 8 or 9 - s.66A The complainant gave evidence that while they were living at Albion Street she would go to bed between 7.30pm and 8.00pm on a school night, and at any time during the weekends. On one occasion while they were living in Albion Street, the complainant was lying in the top bunk in the bedroom she shared with her sister M. She was wearing pyjamas. Her mother was in bed in her bedroom which was separated by the bathroom and a linen cupboard from the complainant's bedroom. M had gone to stay at a friend's house for the weekend. The appellant came into the room, put his hand under the covers and started to touch the complainant. The appellant pushed her underpants to the side and inserted his finger in her vagina. This did not go on for very long. The appellant then left the room. In re-examination the complainant stated that this incident occurred in summer because her sister had gone away for the weekend to go swimming in the Shoalhaven River. This would have occurred in about February. Count 4 - Sexual intercourse (child between 10 and 16), between 14.3.91 and 23.9.91, aged 10 - s.66C(2)(a)(b) After living in Albion Street, the complainant, her mother, her sister M and the appellant moved to Cootamundra. In Cootamundra they lived in a caravan in the caravan park, and the complainant attended Cootamundra Public School. She started there in the middle of the year. Exhibit E shows that the complainant was enrolled at Cootamundra Public School on 14 March 1991. On one occasion, the complainant was walking towards the toilet block which was only about 20 feet away from the caravan, when the appellant, who was also heading that way, pulled her around the side of the toilet block and touched her between the legs on her vagina. The complainant was wearing a dress at the time. The appellant then pulled her underpants to the side and placed his finger in her vagina. This did not happen for very long because they were in a public place. Exhibit D is four photographs depicting the shower and toilet block at the caravan park. One of the photographs was marked by the complainant as identifying the area where the appellant assaulted her. In cross-examination, the complainant stated that she believed that she was wearing a dress at the time, but she was not sure. She stated that her sister M had gone back to live with their father by the time the above incident occurred. Counts 5 and 6 - Indecent assault, 14.3.91 and 23.9.91, aged 10 - s.61 L The complainant gave evidence that while she lived at Cootamundra, the appellant would grab her between the legs on her vagina and rub himself against her. They would both be clothed at the time. One of these occasions occurred near the toilet block. The appellant grabbed her between the legs on the vagina and rubbed himself against her. The complainant stated that it did not last very long and the appellant only used one hand (Count 5). The second incident (count 6) occurred while she was walking to the toilet block. As she walked past the appellant, he grabbed her between the legs on the vagina. It would only have lasted for about a second. The complainant said that these two incidents occurred while she was attending Cootamundra Public School. In cross-examination the complainant was not sure whether all three incidents the subject of counts 4, 5 and 6 happened near the toilet block or whether at least one of them happened in the caravan. Count 7 - Sexual intercourse (child between 10 and 16), between 22.4.91 and 20.5.91, aged 10 - s.66C(2)(a)(b) The complainant gave evidence that she went to Goulburn with the appellant and they stayed in the Mulwaree Hotel. In cross-examination, the complainant stated that she was not sure if her mother and sister drove them to the Mulwaree Hotel. They stayed in one room. The complainant stated that they stayed there for at least one week (T 66). Exhibit F indicates that G S stayed at the Mulwaree Hotel on 17 and 18 May 1991. Exhibit L indicates that G S stayed for the following periods 4 May to 11 May 1991, 2 April to 20 May 1991, and 26 July to 13 September 1991.
They had gone to Goulburn because there was no work in Cootamundra for the appellant and they were planning to move to Goulburn. In Goulburn, the appellant worked at the Blue and White Cafe. According to the complainant, her mother returned to Cootamundra to pack their belongings. The complainant could not recall going back to Cootamundra after the Mulwaree Hotel. It was pointed out to the complainant that she did not leave Cootamundra Public until September 1991. The complainant agreed that as such, she would have had to return to Cootamundra after the stay at the Mulwaree Hotel. The appellant, however, remained in Goulburn as he had obtained work.
The complainant gave evidence that whilst at the Mulwaree Hotel, the appellant laid her on the bed, took off her pants and placed his penis in her vagina. The appellant pushed his penis in and out of her vagina. The complainant was still wearing her top. The appellant had removed his pants. The complainant started to cry because it was hurting. The complainant said that she did not recall how long this continued, but it felt like a long time. When she started to cry, the appellant got off her, she got dressed and went to the toilet. While she was in the toilet, the complainant saw that she was bleeding from her vagina. She used toilet paper to wipe herself. She then went back into the other room and told the appellant that she would tell her mother about what he had been doing to her. The complainant did not tell her mother because the appellant told her not to. The complainant then went and had a shower.
Count 8 - Sexual intercourse (child between 10 and 16), between 18.5.91 and 31.10.91, aged 10 - s.66C(2)(a)(b) A short time after the incident at the Mulwaree Hotel, the complainant, her mother and the appellant moved to Goulburn and lived at 90 Coromandel Street. About one and half months after the incident at the Mulwaree Hotel, the complainant was sitting on the lounge in the house at Coromandel Street and the appellant was sitting beside her. Her mother was standing not far away in the lounge room. The complainant was wearing her school dress with underpants underneath. The appellant placed his hand under her school dress and touched her on the vagina over her underpants. He did not do it for very long. In cross-examination, the complainant stated that her mother saw this happen and she did not say anything. At the time, the complainant was attending Wollondilly School. In cross-examination it was pointed out to the complainant that she had made a statement a week prior to her giving evidence on 13 June 2001, and in that statement she stated that the appellant had grabbed her on the vagina through her underpants and that he then pulled her underpants to the side and put his finger in her vagina. The complainant stated that she did not mention this in evidence in chief because she was not asked about it. The complainant then said that while her mum was in the lounge room, all the appellant did was grab her on the vagina, however, when her mother had left the room, he then put his finger in her vagina. The complainant gave evidence that whilst they were living at Coromandel Street, the appellant would rub his penis area against her arm or leg. This would mainly occur in the lounge room or the kitchen if the complainant's mother was not around.
After Coromandel Street, they moved to Evans Street for a short time. Nothing occurred at Evans Street. The complainant, her mother and the appellant then moved to Gibson Street into a three bedroom house. Shortly after they moved in, M and her de facto partner also moved into the house. The complainant had her own bedroom, her mother and the appellant slept in one bedroom and M and her partner slept in the third bedroom. The complainant stated that about 6 months (at the most) prior to moving into the Gibson Street house, she started at Goulburn High School. Exhibit G indicates that the complainant enrolled into year 7 at Goulburn High School on 3 February 1993. Exhibit H indicates that Mrs C (the complainant's mother) commenced her tenancy at 53 Gibson Street on 15 February 1993. During the time that M and her partner were staying at the house, the appellant would come into her room while she was in bed and touch her on the vagina. This was led as relationship evidence. Count 9 - Sexual intercourse (child between 10 and 16), between 1.4.95 and 6.1.96, aged 14 - s.66C(2)(a)(b) After M and her partner moved out, the complainant's other sister, T, came to stay with her husband, R and their son. The complainant stated that T and R were married at Kandos Golf Club in 1993. The complainant gave her bedroom to her sister and her husband and she slept in the spare room on the bottom bunk. At the time, the appellant was working at the Paragon Cafe from early in the morning to late at night. One night about three months after T and R's wedding and after they had moved into the Gibson Street house, the appellant went into the complainant's room and told her to get on the floor because the bed was squeaky and the others would have heard. The complainant got on the floor and the appellant pulled her pants down. He unzipped his pants but kept them on. He then placed his penis in her vagina and had sexual intercourse with her. The complainant stated that she did not know how long it took, but it felt like a long time. Count 10 - Sexual intercourse (child between 10 and 16), between 1.5.95 and 6.2.96, aged 14 or 15 - s.66C(2)(a)(b) T, R and their son moved out of the Gibson Street house and into the Belleview Street flats. About two or three weeks later, the complainant was laying on the lounge watching television. She was fully clothed. Her mother was in bed. The appellant went to her. His pants were unzipped and he had his penis out. He put his penis in. the complainant's mouth and wanted her to suck it. She refused. The appellant then removed his penis from her mouth. His penis was not in the complainant's mouth for very long. In cross-examination, the complainant stated that she did not tell her mother about what had been occurring because she was afraid, because the appellant was always around, and also because the appellant had told her that her mother would send her to live with her father. 5 The complainant's mother and sister each gave evidence. The effect of their evidence was to provide confirmation of some of the details which the complainant had given as to where the family had lived at various times together with other matters of a relatively peripheral nature. There were also in evidence records from the Mulwaree Hotel and from various schools which the complainant had attended. These records had been obtained by police after complaint was made to them on 27 January 1999 by the complainant. 6 The appellant attended Goulburn Police Station on 11 November 2000. He exercised his right to remain silent when spoken to by police. He was then charged. He gave sworn evidence at his trial in which he denied each of the allegations which had been made against him.
The Grounds of Appeal Ground 1 7 It is apparent from that recitation of the facts that the complainant delayed making any complaint about these matters until January 1999. In those circumstances it was necessary for the trial judge to give directions in accordance with the principles enunciated by the High Court in Longman v The Queen (1989) 168 CLR 79. Longman has been revisited in recent years by the High Court in Crampton v The Queen (2000) 206 CLR 161 and in Doggett v The Queen (2001) 208 CLR 343.
8 The trial judge gave the following directions in purported compliance with the authorities: Ladies and gentlemen the first thing is this, the complainant never made any complaint against the accused. You heard the evidence that she never spoke about this until years later, there was no complaint and the Crown concedes, the Crown agrees with Mr Williams that the Crown case here is based solely on the evidence of the complainant, there is no other evidence. For this reason, you must scrutinise her evidence very carefully before you rely upon it. You must check the evidence very carefully. Ladies and gentlemen there is no evidence from any other witness or from any other source that can support her evidence to say that it is true and I repeat, there is no evidence of complaint from her, there is only her one piece of evidence and nothing else. You ask yourselves, are we satisfied beyond reasonable doubt of her truthfulness and of the accuracy of her evidence. You would scrutinise her evidence with great care before you could rely upon it, you would check her evidence against the other evidence, you would test it. Of course these are the sort of things ladies and gentlemen that you do in the jury room, you examine it. You examine the evidence, you scrutinise it carefully, you go through it, you compare it. Ladies and gentlemen I must also say this to you, absence of complaint does not indicate necessarily that the allegation that the offence was committed is false and there may be good reasons why a complainant may refrain from making a complaint. You have to balance that against this, that the failure of a complainant to make a complaint has to be taken into account by you when you evaluate the evidence and determine whether you are satisfied that it is truthful. As absence of complaint might in the circumstances indicate that the allegations are false, what weight you give to the absence of complaint is entirely a matter for you, but as I said ladies and gentlemen, keep in mind the balance, the two sides of that argument and as I said to you before, that is what being a judge is, looking at two sides. There is no evidence of corroboration in this trial, the evidence has come from only one source, namely from C, there is nothing else. Therefore you have to bear in mind that there may be a danger in acting on her uncorroborated evidence, you would keep that in mind. Before you could convict the accused you must exercise considerable caution and scrutinise the evidence of the complainant very carefully. Ladies and gentlemen it is said that the law is based on good reason, good sense. Those directions of law you might think are based on good reason, good sense. Ladies and gentlemen another direction I must give you is this and that is that you must pay regard and keep in mind the age of the complainant. Does that raise a doubt in your minds as to her reliability. You heard that the complainant was of a young age. You the jury, you the judges have to decide is her evidence reliable, you take that factor into account. Has there been a distortion of the evidence? Has the complainant changed the evidence? Has the (sic) she distorted it with the passage of time? You ask yourselves those questions and keep that in mind. Ladies and gentlemen the next thing I must say to you is this, that there has been a long gap of time, there has been a delay between when these offences occurred and when the complainant made a complaint. Some years have elapsed, so you as the judges are required to ask yourselves this, Has the accused G S lost a chance of obtaining a fair trial because the allegations were not made sooner , that is you must scrutinise the evidence very carefully ladies and gentlemen because the allegations are made after a long delay and the law is very clear about this ladies and gentlemen, the law says this that where there is that delay, you must examine the evidence very carefully to make sure that the accused has not suffered a disadvantage and I will just take this slowly for you. You recall that counsel, both gentlemen addressed you about this. Ladies and gentlemen you have to ask yourselves this, has the accused been put at a disadvantage because of the delay? That is, is it difficult for him now to prove his innocence. Is it difficult, and you might think well because of the delay it is obviously difficult to cross-examine a witness, any witness who is making an allegation years later, because it is difficult to recall details of an incident where there has been a lengthy period of time. Here there is no dispute, there was no complaint at the time, there was no complaint until years later. So therefore obviously you might think, it is difficult to test the evidence to determine if it is truthful and accurate. The delay makes it difficult to obtain a fair trial , therefore you the judges must scrutinise and examine the evidence of the witness C very carefully, before you rely upon it. It would be dangerous to convict on her evidence alone unless after scrutinising and examining the evidence with great care, you are satisfied that it was truthful and accurate. Only in that situation could you rely upon it. There is no evidence to support the evidence of C from any other witness or from any other evidence, the Crown case depends entirely upon hr honesty and her accuracy. You do not say, well I believe the event of this or that and I prefer what she says to what the accused says. What you have to do ladies and gentlemen, is to look at all the evidence, not just as the Crown told you, you do not have to say, "Well do I believe C or do I believe G S." What you have to say is on all of the evidence in this trial, am I satisfied beyond a reasonable doubt that each ingredient has been proved in each offence. Ladies and gentlemen that is all I want to say to you about delay, but except as I said to keep that in mind because in this case there has been evidence of years of delay. (emphasis added) 9 Before turning to the various complaints which are made about the directions, it is useful to make reference to the relevant authorities commencing with Longman itself. 10 In a joint judgment, Brennan, Dawson and Toohey JJ, said: 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 36 BD 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 …T hat 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. (at 90-91) (emphasis added) 11 Deane J said that:
…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 borderline 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 scrutinized 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. (at 101) 12 McHugh J said that: 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. (at 108-109) (emphasis added) 13 In Crampton, Gaudron, Gummow and Callinan JJ in a joint judgement, having referred at length to Longman, observed that: There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case, we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result. … 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 the appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman . (at 180-1) (emphasis added) 14 In Doggett, Gaudron and Callinan JJ in a joint judgment, with whom Kirby J agreed in a separate judgment, said that: …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 that other potential witnesses were doing when the offences were alleged to have occurred. (at 270) 15 Those authorities were the subject of detailed consideration by this Court in R v BWT [2002] 54 NSWLR 241. Relevantly for present purposes, Sully J concluded that the following propositions could be distilled from a review of those decisions: [1] The proposition advanced by Gleeson CJ in Doggett v The Queen (at 1292 [10]; 4 [10]) to the effect that the decision in Longman "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", is, as I respectfully think, plainly correct on a fair reading of what was actually said in the joint judgment in Longman itself. Notwithstanding that some support is given to Gleeson CJ's proposition by the relevant parts of the judgment of McHugh J in Doggett , I think that the conclusion is unavoidable that, as matters currently stand, all five of the remaining Justices of the High Court do not accept the Chief Justice's proposition. [2] It seems to be a fair inference from the various statements of principle of those five Justices of the Court that they would all accept, at least to some extent, a measure of discretionary flexibility on the part of a trial judge who is required to give a Longman direction. It seems to me, however, that the majority Justices regard that margin of discretion as being a very narrow one. It seems to be their Honours' position that such a residual discretion is available for the purpose of strengthening what I might describe as the basic Longman direction; but that it is not available so as to water the basic direction down in any way. [3] It seems to me to be a reasonable inference from what their Honours have said that all the current Justices of the High Court, excepting the Chief Justice and McHugh J, take the basic position that in any criminal trial a feature of which is substantial delay in complaint of alleged sexual offences then charged against the particular accused, a Longman direction must be given. Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Dogget t: (a) The direction must be cast in the form of a warnin g. Any form of expression which is thought to have the character of a commen t, or even of a caution will not sufficiently comply with what is required by law. It seems to me to follow that any trial judge who is framing a Longman (at 91) direction ought to ensure that the direction is framed, in terms, as a warnin g. (b) That which is to be warned against is, to return to the majority judgment in Longman (at 91) itself: "that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], 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, was satisfied of its truth and accuracy." The approach of the majority Justices in both Crampton and Doggett seems to me to entail that a trial judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: firs t, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondl y, that it would be, therefore, dangerous to convict on that evidence alone ; thirdl y, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthl y, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthl y, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and sixthl y, that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction. (c) Not only must the substance of the warning be carefully and correctly focused, but the form of the warning, also, must be carefully and correctly framed. The form of the warning must be such as bears unmistakably the imprint of the court's own authority. It must be made clear that the foundation of that authoritative warning of the court itself is the accumulated experience of the courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated . A ready example of that will be found in the trial directions in Crampto n. (d) In framing the substance of a Longman direction, a judge must keep in mind not only the guidance given by the joint judgment in Longman itself, but also the additional considerations to which reference was made in their respective judgments by Deane J and McHugh J. (at 272-4) 16 Wood CJ at CL agreed with Sully J's summary of the directions that are now required in the light of the decisions of the High Court in Longman, Crampton and Doggett but then added some observations of his own. Having referred in some detail to those authorities, his Honour concluded that: These passages have been taken up, so it seems to me, as requiring that an instruction in equally positive terms, be given in every case involving a substantial delay, irrespective of whether or not there is any evidence, or basis beyond suspicion, that the absence of contemporaneity between the alleged offence and complaint, or trial has in fact (not "might have") denied to the accused a proper opportunity to meet the charges brought: see for example R v Roddom [2001] NSWCCA 168, R v GJH [2001] NSWCCA 128 and R v Roberts (2001) 53 NSWLR 138. Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant's evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way. (at 247) (emphasis added) 17 It is to be observed that there were a number of features of the present case which required that there be appropriate compliance with the principles established by the relevant authorities. First, the complainant was only 7 at the time the alleged offences commenced. Secondly, her evidence was uncorroborated. Thirdly, a number of discrepancies emerged in the course of cross-examination between what she had said to the police and what she said in evidence. Finally, there was a considerable delay, on her part, in making complaint. 18 It is apparent, in the light of the authorities to which I have referred, that there are a number of difficulties with the directions that were provided to the jury. At the outset of the directions the trial judge told the jury that they were "required to ask [themselves] this, has the accused G.S. lost a chance of obtaining a fair trial" by reason of the delay in complaint. The problem with posing that question was twofold. First, it was not the question with which the jury was ultimately concerned. The issue to which their attention should have been directed in the present context, was that as the appellant had been disadvantaged in making his defence to the charge by reason of the delay, they were accordingly and consistently with the onus of proof, to consider the matter of delay in deciding whether or not to accept the complainant's evidence. The question which was posed thus raised a false issue for the jury's consideration and as such was likely to have distracted their attention away from the real issues that they were to determine. It also raised the bar too high in the sense that a failure to have a fair trial is a more stringent test than was required. Secondly, by posing the question as a warning, it gave rise to the possibility which was heightened by the introduction of the fair trial criterion, of a response that was in the negative. If the jury did in fact arrive at the conclusion that the appellant had not lost the chance of obtaining a fair trial, or putting it another way, had had a fair trial, then they may as a result have been more readily prepared to accept the complainant's evidence and thus convict. At the very least, a negative response to the question would in all likelihood have led the jury to put to one side any further consideration of the issues concerning the delay in complaint as bearing upon the credibility of the complainant's evidence as well as the directions which they received in relation to that question. 19 The trial judge then went on to direct the jury "to examine the evidence very carefully to make sure that the accused has not suffered a disadvantage." His Honour then said "You have to ask yourselves this, has the accused been put at a disadvantage because of the delay? That is, is it difficult for him now to prove his innocence." 20 Those directions had the effect of compounding the difficulties to which I earlier referred. In the first place the trial judge raised a further erroneous matter for the jury's consideration when he asked the question "is it difficult for him now to prove his innocence?" I would not, in light of the other directions which his Honour gave during the course of the summing-up about the onus and standard of proof, be disposed to accept the submission that his Honour thereby effectively reversed the onus of proof upon the ultimate issue for the jury's consideration. The question which was posed could nevertheless have diluted those general directions and at least was apt to confuse and mislead the jury. In any event the remarks currently under consideration were likely to erode the overall effect of the directions which were required upon the issue of delay in making complaint. 21 There is however a further problem with this part of the direction. As Wood CJ at CL observed in BWT, the authorities make it clear that there is "an irrebuttable presumption that the delay in complaint has prevented the accused person from adequately meeting and testing the complainant's evidence." Accordingly, the jury should have been so instructed rather than directed to consider whether there was any such disadvantage. 22 The trial judge then went on to say that "delay makes it difficult to obtain a fair trial". It will be observed that his Honour in so directing the jury repeated the inappropriate reference to the fair trial criterion to which I have already made reference. But more importantly, in the present context, his Honour did not fully explain what those difficulties were. True it is that the trial judge told the jury that a delay in making complaint can make it difficult to cross-examine a witness because "it is difficult to recall details of an incident where…a lengthy period of time [has passed]." What was required in the present case however was further elucidation of the matters to which reference was made in Longman and Crampton concerning the forensic disadvantages which confront an accused person in circumstances such as the present. 23 As the joint judgment in Longman makes clear, these are not matters which would necessarily be apparent to a jury. The jury needed to be instructed that the appellant had lost those means, by reason of the delay, of "testing the complainant's allegations which would have been open to him" had there been no such delay. Moreover had there been no delay in making the allegations "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 denial." 24 In the joint judgment in Crampton, their Honours said that "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." It was the disadvantage which was occasioned to the appellant by reason of the denial of those "forensic weapons" that required attention from the trial judge. The jury did not receive the benefit of directions to that effect. A critical forensic consideration in cases such as the present is the capacity of an accused person to be in a position to effectively cross-examine the complainant. The point was succinctly put, if I may respectfully say so, by Kirby J in R v WRC [2002] NSWCCA 210. His Honour said: The potency of cross examination as a means of exposing unreliable evidence diminishes significantly with time. In State v Saporen (1939) 205 Minn 358 (quoted in McCormick on Evidence, 2nd Ed (1972)), p602, the following was said: The chief merit of cross-examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is the immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others. … The method of cross examination is an attack upon detail, exposing contradictions and unreliability. If the trial is undertaken within a reasonable time, the excuse for unreliability of fading memory is unlikely to be persuasive. However, where the trial is delayed, the accused is disadvantaged in two ways. First, the testimony is likely to be more vague, bereft of the detail which may be used to expose unreliability. Secondly, that absence of detail, and any contradiction that may happen to emerge, can the more easily be explained by reference to the passage of time. The jury therefore is more likely to be forgiving of shortcomings in the complainant's evidence, especially in the context of charges which arouse strong feelings of prejudice or revulsion (cf Kirby J Doggett (supra) at 25, para 118. (at para 142-3) 25 Although the trial judge did make reference to the complainant's age the jury should also have had their attention drawn to the matters to which Deane J and McHugh J referred in their respective judgments in Longman concerning the impact of delay upon the recollection of a person of her tender years. 26 The appellant submits that there were instances thrown up by the evidence which demonstrated the type of forensic disadvantage from which he was suffering. In this respect he points to the evidence of Mr Prevedello. He was the owner of the Mulwaree Hotel which is where the complainant maintained that the incident, which gave rise to count 7 in the indictment, occurred. An issue arose in the trial which it is unnecessary, for present purposes, to explore in any detail. Suffice it to say that Mr Prevedello produced records concerning periods during which the appellant had stayed there. There was some ambiguity about various of the entries in the register. When Mr Prevedello was asked to explain the entries in the register, he responded on several occasions with answers such as "I mean we are talking ten years ago and I can't recall that far back." 27 The appellant also points to the fact that amendments were made to various of the counts in the indictment concerning the periods during which particular offences were said to have occurred. The Crown sought and obtained leave to do so because records came to light during the course of the trial which made it apparent that the periods originally nominated were inaccurate. It was accordingly submitted that this matter could and should have been referred to by the trial judge because it too provided a practical illustration of the sort of forensic disadvantage under which the appellant was labouring. In my view, there is some substance in the submission although the fact that the trial judge did not so inform the jury, would not, of itself, have constituted error. 28 Although in some respects there was compliance with the principles enunciated in Longman, I have come to the view that as the directions represented a significant departure from what is required by Longman (and the subsequent authorities to which I have referred) that leave should be granted pursuant to rule 4 of the Criminal Appeal Rules to argue this Ground, notwithstanding the fact that no complaint about them was raised at trial. Furthermore I am of the view that this Ground of Appeal must be upheld.
Ground 2 29 As frequently occurs in matters of this kind, the Crown led evidence of other sexual activities alleged to have been committed by the appellant upon the complainant which were not the subject of counts in the indictment. That evidence was led without objection. 30 After the first occasion on which evidence of this kind was led, the trial judge raised with counsel the fact that the jury had before it evidence of "uncharged acts." His Honour then provided counsel appearing for the appellant at trial with a choice as to whether he wanted the Crown or the judge himself to explain the purpose for which that evidence was being led. Counsel indicated that he wished the Crown to provide the explanation. The Crown proceeded to do so and informed the jury that the evidence was being led in order to put the relationship between the appellant and the complainant into context. The Crown also foreshadowed that there would be further evidence led from the complainant that was in a similar vein. 31 At an early stage of the summing-up the trial judge reminded the jury of the limited use that it could make of that evidence. His Honour then went on to warn the jury that it could not adopt a form of propensity reasoning in relation to the evidence. 32 The appellant now complains that the trial judge should have given the warning at the time at which the initial evidence was given. In support of the submission, the appellant relies upon this Court's decision in R v Beserick [1993] 30 NSWLR 510 in which Hunt CJ at CL, with whom Finlay and Levine JJ agreed, said that: If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged. (at 516) 33 What his Honour was purporting to do in that passage, as I understand it, was to suggest a practice which should, in the ordinary course of events, be followed. It may be accepted that there are good reasons why it ought to be. I do not however understand his Honour to be suggesting that a trial will, merely by reason of a failure to follow that practice, inevitably miscarry. 34 I am not persuaded, in the circumstances, that there has been a miscarriage of justice especially as the trial was of short duration. I am fortified in arriving at that conclusion by the fact that trial counsel saw no reason to request such a warning at the time at which the evidence was led even though it is apparent that there was every opportunity for such a request to be then made. 35 I am further fortified in my view by this Court's decision in R v TAB [2002] NSWCCA 274 in which a ground in almost identical terms was advanced. The trial judge in that case recognised that he should have given a warning at the time at which the evidence had been admitted, but through oversight, had omitted to do so. Levine J (with whom Mason P and Sully J agreed) held that there had been no miscarriage of justice. His Honour concluded that: the evidence…was very briefly and simply given and in the end subject to their correctness, the directions at the end of the trial would otherwise be sufficient" (at para 35). 36 It is also submitted that the directions which were ultimately given were deficient. The first complaint in this respect is that the trial judge confined the directions to the two incidents of relationship evidence that had been introduced in respect of count 1 whereas the relationship evidence went further than that. It is true that the directions were given in respect of the relationship evidence that was led at the same time as the evidence in respect of count 1. Nevertheless I have no hesitation in accepting the proposition that the jury would have well understood that the directions, given the context in which they were provided, were intended to be of general application rather than being confined to the part of the evidence that was specifically identified. If it had been thought at the time that some correction was required by the trial judge, it would have been a simple enough matter for counsel to have raised. 37 It is also submitted that the direction was deficient insofar as it did not include a warning, as Beserick requires, that the jury must not "substitute evidence of other sexual activity for the specific activity which is the subject of the offence charged." 38 It may be that trial counsel saw no necessity for the direction to be expanded in the way which is now suggested since, as the Crown submitted, the jury was unlikely to have contemplated substituting the evidence of "other sexual activity for the specific activity charged" because the relationship evidence was, for the most part, relevantly different from the evidence which was the subject of the specific count in the indictment. Whether that assumption is correct or not, in my view the appellant has not demonstrated that there has been a miscarriage of justice. I referred earlier to the fact that no objection was taken by trial counsel to the directions which are now impugned. In those circumstances leave to argue this ground is required under rule 4 of the Criminal Appeal Rules. I would refuse leave in respect of this Ground.
Ground 3 39 After the jury retired to consider its verdict, it requested a copy of the complainant's statement to police and the "court transcripts" in respect of counts five, six and eight. It is clear that the statements were not in evidence and that there was no transcript available (or likely to be available in the foreseeable future). The proceedings were conducted in the country and had been sound recorded. The possibility of making the tape recording of the complainant's evidence available to the jury was considered but was not seen, in the circumstances, as being practicable. The trial judge explained to the jury that they were not entitled to have the complainant's statement to police because it was not part of the evidence in the trial. It is common ground that the jury's request arose because there had been cross-examination of the complainant which was designed to demonstrate that there were, in certain respects, inconsistencies between what she had told the police in her statement and the evidence which she gave in court. Unsurprisingly counsel had sought, in his address, to highlight those matters. Moreover the trial judge had told the jury what use could be made of prior inconsistent statements. 40 When dealing with the jury's request, his Honour ascertained from the jury's reaction to an inquiry which he made of them, that they did in fact wish to compare the statement with the evidence which had been elicited. It may be noted that it is not uncommon for a jury to make a request for the statement of a witness. See R v TAB [2002] NSWCCA 274 at para 68. 41 It is now submitted that the jury's "request for assistance was rejected". The appellant further submits that the "trial judge ought have dealt with the request in a manner which provided the desired information. It is submitted that the failure to do so unfairly disadvantaged the defence case". 42 The short answer to the submission is that the jury was not entitled to obtain "the desired information" or at least that part of it which related to material that was not in evidence. Without that material, the exercise, upon which it was understood by everyone at the trial that the jury wished to embark, was simply not possible. In those circumstances it may readily be inferred that the jury, and everyone else, realised that no further assistance could be provided to them. 43 It is true that the jury could have been reminded of the relevant parts of the complainant's evidence. However the jury did not request that this be done. Nor did counsel who appeared for the appellant at trial suggest or request that such a course should be adopted. It seems tolerably clear that the reason why such a request was not made is that the jury was only interested in making the comparison to which I earlier referred. The only reasonable interpretation left open, in the circumstances, is that once the jury was informed that it was not possible for them to engage in that exercise, they were prepared to continue their deliberations without that material. In all those circumstances it cannot be reasonably maintained that the jury's "request for assistance was rejected". 44 In my view the appellant has, in any event, failed to demonstrate that he was, in the circumstances, "unfairly disadvantaged". I would reject this Ground of Appeal. 45 It was argued that in the event that the court upheld the challenge to the convictions, it was appropriate to enter verdicts of acquittal rather than make an order for a retrial. The appellant pointed to the following factors as bearing upon that issue:
(c) he has served nearly all of the non-parole period which was imposed upon him. 46 Relevant and significant as those considerations may be, I am not however persuaded that they are of such a nature as to require the court to make the order sought in the present case. Indeed they are the very sort of matters which fall peculiarly within the province of the Director of Public Prosecutions to determine. 47 I propose the following orders:
3 That there be a new trial in relation to all counts. 48 SMART AJ: I have had the benefit of reading in draft the judgment of Buddin J. I agree with the orders which he proposes and the reasons which he gives for holding that the judge's directions were defective. I wish to add some further comments. 49 In Reg v. Lawrence [1982] AC 510 at 517 Lord Hailsham LC said: "Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims…" 50 In that case their Lordships were lamenting a delay of 11 months between the commission of the offence on 13 April 1979 and 13 March 1980 when the trial commenced. It was a prosecution for reckless driving causing death. 51 In Brisbane South Regional Health Authority v. Taylor (1996-1997) 186 CLR 541, a case in which an extension of the limitation period was sought, McHugh J at 551, after referring to Lord Hailsham's speech in Lawrence, said: "Sometimes the deterioration [in the quality of justice] is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v. Wingo (1972) 407 US 514 at 532 'what has been forgotten can rarely be shown'. So it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed". 52 I would add a reference to the decision of Kirby J in R v. WRC [2002] NSWCCA 210 to which Buddin J has drawn attention, namely, that delay robs cross-examination of much of its potency. 53 Longman v. The Queen (1989) 168 CLR 79 recognised the problems arising from delay which may not be fully appreciated by a jury. There is the temptation, even on the part of lawyers, to imagine that it will be possible to point to all the prejudicial effects of delay and that a matter can be decided fairly on existing information. 54 In Longman the joint judgment of Brennan, Dawson and Toohey JJ referred to the inability to adequately test the evidence of the complainant after a long delay as being the occasion for the warning there stated. The joint judgment having stated the principle, it would need to be explained to the jury what was meant. Simply stating that after 20 years the complainant's story could not be adequately tested may not mean a great deal to a jury. The joint judgment explained what it meant by the loss of adequate testing, that is, had the complaint been made shortly after the alleged event it would have been possible to explore in detail the circumstances surrounding the alleged event and perhaps adduce evidence throwing doubt upon the complainant's story or confirming the appellant's story. After a lengthy lapse of time it is difficult to mount an attack upon the details of the alleged event exposing contradictions and unreliability - the evidence is likely to be more vague and bereft of the detail which may be used to expose unreliability. The complainant can also rely upon the passage of time to explain the absence of detail and any contradictions. 55 In Crampton v. The Queen (2000) 206 CLR 161 at par [45] in the joint judgment of Gaudron, Gummow and Callinan JJ it is stated: "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". 56 This represents a refinement of the instruction required and brings that instruction into line with the discussion in Longman. Just as the judge needed to add a word of explanation as to what was involved in testing evidence he would need to explain that meeting the evidence of the complainant includes tendering documents, calling witnesses and evidence, for example, if it be the case, that the accused was elsewhere at the time of the alleged incident or in the company of other persons. Of course, if the intercourse is admitted and the issue is consent or knowing that the complainant was not consenting the evidence required to meet the case of the complainant will be of a different order. In such a case surrounding circumstances and matters of detail are likely to be important. 57 In Crampton at para [126] Kirby J said: "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". 58 In Doggett v. The Queen (2001) 208 CLR 343 a majority of the High Court (Gaudron and Callinan JJ in a joint judgment and Kirby J in a separate judgment) again stressed the importance of a strong direction being given to the jury on the question of delay. The passage from the joint judgment in Crampton set out in the reasons of Buddin J was quoted. Gaudron, Callinan and Kirby JJ underlined the importance of the denial by effluxion of time to an accused of the forensic weapons that a timely complaint might allow. 59 In Doggett, the majority took the view that the corroborative evidence there led, did not dispense with the need for a Longman direction. On one view the corroborative evidence was capable of being regarded as strong but on another view it may not have been regarded as so telling. In the light of the High Court's approach in Doggett there are likely to be few cases where the corroborative evidence will be such as to warrant dispensing with a Longman direction. This remark applies even more strongly where the corroborative evidence is challenged. 60 I have not touched upon the additional matters referred to by Deane J and McHugh J in Longman. Where appropriate they should be included in the warning. 61 The issue of delay is a troublesome one. Where there is delay "the whole quality of justice deteriorates". Delay robs cross examination of much of its potency as the ability to examine the details and challenge reliability is much reduced. With delay, what has been forgotten and evidence which has disappeared or is no longer available may never be known. In many cases it is impossible to accurately assess the effect which delay has had. Delay will almost always have some effect on the quality of the evidence and consequently on the quality of justice. The difficulty lies in assessing the degree of that effect given the factors to which reference has been made. That effect (and perhaps lack of effect) is virtually incapable of proof. 62 As I understand the combined effect of the decisions of the High Court in Longman, Crampton and Doggett they start from the premise, which I would not wish to dispute, that significant delay must have some effect on the quality of the evidence able to be adduced and the quality of justice. They then highlight the difficulties which exist in both testing the evidence led by the Crown and in the accused meeting that evidence. They regard it as plain that the accused has been disadvantaged by the delay. I would not wish to query that view. They then hold that a warning must be given. In my opinion, as significant delay must have some effect and it is virtually impossible to assess that effect with any degree of accuracy particularly because of what is not or may not be known, the need for a warning along the lines specified is heightened. 63 It does not follow that because of the warning the jury will not convict. The effect of the warning is to alert the jury to matters of which they may not have been aware and make them very careful, thorough and cautious in their examination and assessment of the evidence. *********
Last Modified: 04/14/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Regina
GS
(2000) 206 CLR 161
(2001) 208 CLR 343
(1989) 168 CLR 79
(2001) 53 NSWLR 138
Appeal against convictions allowed. Convictions and sentences quashed. New trial ordered in relation to all counts.