…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.