The trial judge's directions
18 The appellant submitted that the learned trial judge's directions on the impact of delay were inadequate. Before dealing with the question of delay, his Honour pointed out that there was no independent support for the complainant's evidence of a sexual assault and directed the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that this evidence was both honest and reliable. His Honour then directed the jury, as to the evidence of all three principal Crown witnesses, that its reliability may have been adversely affected by the passage of time. His Honour directed the jury as follows -
"[Finally], in relation to this aspect of the passage of time or delay, as you would appreciate, it can operate unfairly to an accused where there has been a delay in the authorities being notified of an allegation. As I say, the delay here is in the order of 25 years, that is, a quarter of a century. That sort of delay can operate unfairly to an accused because he or she has lost the opportunity of fully testing or challenging the complainant's account and credibility and has lost the opportunity of presenting material to a jury to rebut the allegations or raise a reasonable doubt about the complainant's veracity.
In this case, you have heard about the incomplete nature of RTA records relating to the registration of motor vehicles as far back as 1972, the absence of school records and the fact that the accused says that he destroyed his own diaries for that period."
19 His Honour then went on to deal with the reasons that might suggest that the evidence of the three witnesses was unreliable, dealing with the history of communications that might have caused contamination of their recollections and the risk of unconscious confabulation.
20 These directions concluded with the following -
"As I have said, the two features that I have been discussing, the passage of time and the possibility of contamination mean that the evidence of the complainant, Tim Franklin and Michael Casey may be unreliable. I warn you that it would be dangerous to accept the evidence of any of these three witnesses unless and until you have scrutinised it with the utmost care, bearing in mind the warning I am giving you and the reason for it. You would need to satisfy yourself that their evidence was both honest and reliable and you would need to satisfy yourself that you could, beyond a reasonable doubt, exclude the possibility that their evidence is the product of mistake or contamination before you accept it.
Do not think, members of the jury, that I have given you this warning in order to send you some coded message about what my views are concerning the credibility of these witnesses. In all cases with features of this type that I have identified, all judges are required by an Act of Parliament to give the warning that I have given you in order to guard against miscarriages of justice and innocent people being convicted. They are not intended and you should not treat it as being an attempt by me to convey a view I might or might not have about the credibility of the witnesses."
21 The appellant submitted in this Court that these directions were inadequate to warn the jury of the dangers of convicting where there was such a substantial delay, despite the failure of counsel at the trial to seek further directions.
22 In R v Longman (1989) 168 CLR 79, Brennan, Dawson and Toohey JJ said (at 91) -
"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them...That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the complainant'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 of New South Wales (1989) 168 CLR 23...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 20 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." (My underlining.)
23 McHugh J called attention to the particular problems arising out of childhood memories being recounted many years after the recollected events and added -
"To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony." (My underlining.)
24 In Crampton v The Queen [2000] HCA 60, (2000) 117 A Crim R 222, Gaudron, Gummow and Callinan JJ made the point (at [45], 233) -
"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 [set out above] (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." (My underlining.)
25 Kirby J set out in greater detail the prejudice suffered by the appellant which should have been brought to the attention of the jury as an emphatic warning and then added ([131], 256) -
"Twenty years after the alleged offence, the first complainant was an adult whose life's experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability…
The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected…That idea is contrary to the repeated authority of this Court in and since Longman . The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons… The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms."
26 Hayne J said ([142, 258) -
"The trial judge did comment about the fact that the complainant made no complaint about the appellant until long after the incident was alleged to have occurred. As the trial judge said to the jury, this deprived the appellant of an opportunity to 'look at matters which were happening at about [the time of the alleged incident] and to raise them in evidence' and it probably reduced the capacity of the complainant to be accurate. As the joint judgment in Longman points out…it was proper to remind the jury of considerations relevant to the evaluation of the evidence and these were considerations of that kind. But what has come to be known as a ' Longman warning' is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. That warning was not given." (My underlining.)
27 The learned trial judge's directions in this case, as set out above, certainly warned the jury about the possibility that the delay in this case operated unfairly to the accused for the reasons that he mentioned. With unfeigned respect, I consider that these directions fell significantly short of a positive warning in unqualified terms of the crucial point that the defence was in fact unable adequately to test the complainant's - or, for that matter, the other witness' - evidence, so that the disadvantage to the defence and the danger of convicting in the circumstances was not merely potential but real. This was especially important because the jury might have mistakenly thought that, because of the cross-examination that did occur, the evidence for the prosecution had been fairly and adequately tested. Moreover, it is necessary to consider the impact of delay on any positive case that the accused might wish to raise. The jury would very likely have gathered from his Honour's direction that the only respects in which the appellant had been prejudiced by delay was the loss of the car registration and school records and the appellant's diary. But, of course, the appellant had lost much more than the records in question. The circumstantial network of his working and social life, which may have confirmed the change of ownership of his car at the crucial time or accounted for his movements in the winter of 1972, would have obviously long since dissolved. The same is true of the Crown witnesses. This problem was exacerbated by the inability of the prosecution to be precise about the date and place of the offence, a difficulty made all the more significant because the defence case, essentially, was that the accused had never attended such a camp. The inability of the complainant to identify the campsite may have reflected on his reliability as a witness, an argument of which his Honour reminded the jury, although it is likely that this was explained away in the manner pressed on this Court by the Crown Prosecutor, namely, it would not be surprising if, after all these years, the site could not be found. However, this is to demonstrate the problem rather than resolve it. Part of the problem with assessing the significance of imprecision and inconsistency in cases such as this is the strong temptation to explain them away by the passing of time. Imprecision and inconsistency, which in the ordinary case, would be significant, are discounted in favour of the prosecution. The extent to which these matters may have assisted the defence or the prosecution is necessarily uncertain, but that very uncertainty gives rise to the danger about which the jury must be warned. The risk that the jury will not appreciate that the case it is hearing may well be, to a greater or lesser extent, an artefact, which has been shaped, as it were, by the corrosive effects of time, is a very real one, requiring emphatic directions. With unfeigned respect for the learned trial judge, I consider that his Honour's directions fell significantly short of the warnings required by Longman and Crampton.
28 To my mind, the reference by his Honour to the obligation to give the warning as arising by Act of Parliament was, with respect, likely to have qualified its force. It is of the essence of the extracts that I have cited above from the various judgments in the High Court of Australia that the warning must be expressed as arising from the experience of the Courts. Juries are not likely to think that Members of Parliament know very much about the evaluation of evidence in a criminal trial. It also seems to me that the concluding words of his Honour may have been taken by the jury to mean that, in the circumstances it was considering, the warning may not apply and the danger might not be present, when the opposite was the case.
29 No application was made at the close of the summing up for further directions. Nevertheless, I have concluded, with respect, that the learned trial judge's directions were so flawed as to give rise to a miscarriage of justice and, accordingly, I would allow the appeal. In light of matters referred to below, it is unnecessary for me to consider the remaining ground of appeal, namely that "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence" under s 6(1) Criminal Appeal Act 1912.