(4) the direction concerning the disadvantage to an accused caused by delay in making a complaint was inadequate. In particular, his Honour did not refer to the evidence in the case and attempt to relate the effect of delay to the evidence highlighting specific difficulties faced by the appellant because of it.
38 There was some uncertainty about the extent of delay between the happening of the incidents the subject of the counts in the indictment and the complainant's first complaint about any alleged sexual interference by the appellant. On her account she had, in general terms, complained to her mother at a time reasonably proximate to the incident the subject of the second count (the McDonalds incident). By the time that incident took place she had given up hope that her mother might intervene on her behalf and accordingly she did not complain in terms about it. This account was not supported by the evidence of the mother who said the first complaint had been made to her around Christmas 1996. There was evidence of complaint to LN in 1994. The first time the matter was brought to the notice of the police was in September 1997 and the first knowledge that the appellant had of these allegations was in October 1997 when he was interviewed by police about them.
39 In these circumstances the question of delay in the making of complaint and the significance of that fact to the issues raised in the trial needed to be the subject of careful direction by the trial Judge. The directions given, prior to the request for re-directions, went exclusively to the s.405B considerations.
40 It was clear that the complainant had moved out of the family home around Christmas 1993. At that time she was aged 16 years. Thereafter she appears to have lived independently while maintaining some level of contact with her mother and the appellant.
41 In the light of the lengthy delay in bringing this matter to official attention (and having regard to the complainant's age and her independent living arrangements in the period 1994 to 1997) it was appropriate for the trial Judge to direct the jury that the delay in making a complaint may be taken into account in assessing the complainant's credit; Regina v Davies (1985) 3 NSWLR 276. It was necessary to give such a direction to restore the balance of fairness; Crofts v The Queen (1996) 186 CLR 427 at 449-451; Longman v The Queen (1989) 168 CLR 79 at 91.
42 The failure to determine the basis on which the evidence of complaint was admitted was reflected in the directions the trial Judge gave on this topic. He did not identify what use the jury might make of the evidence. If leave is given to adduce evidence of complaint pursuant to s.108(3) (and this appears to be the only basis on which the evidence of the mother and LN of complaint might have been received) in the ordinary course consideration might have been given to whether its use might be limited; s.136.
43 The trial Judge did not review any of the evidence during the course of the summing up. The assessment to be made of the complainant's credibility in the context of the complaint evidence might turn on whether the jury accepted her account, namely, that she had complained to her mother that the appellant used to "grope" her and thereafter become disheartened by the mother's lack of support and not pressed further complaints. Alternatively, an acceptance of the mother's account might have been thought to raise a live issue as to the complainant's credibility. In this case it was important for the trial Judge to remind the jury of the evidence which had been led from each of the witnesses on this topic and to link that evidence to the directions concerning complaint; Regina v Lynch (unreported, NSWCCA, 12th March 1999).
44 The matter was complicated by the circumstance that evidence was led, over objection, concerning an incident in which the appellant told police he had "half accidentally half purposely" squeezed the complainant on the breast. She had chided him and he felt guilty and gave her $10. He said this occurred in the course of a wrestling match. This evidence is discussed in more detail below in the context of ground 4(b).
45 It is not suggested that any complaint, prior to the complainant's contact with the police in September 1997, was detailed as to the conduct the subject of the charges. Evidence that the complainant had told her mother that the appellant kept trying to "grope" her was not evidence of a complaint as to the assaults with which he was charged. The complaint to LN was that the appellant had sexually abused the complainant when she was living at home with her mother. Again, this was not a complaint clearly referable to any of the particular counts in the indictment. In the context of a trial in which there was evidence of other sexual conduct, not charged, it was necessary for the trial Judge to direct the jury that the evidence of complaint both to the mother and LN was not evidence of complaint as to the assaults charged.
46 I turn now to the adequacy of the further direction given by the trial Judge in response to the Crown Prosecutor's request that a Harvey direction be given. This court has considered the question of the nature of directions to be given where there has been significant delay in reporting alleged sexual offences on a number of occasions recently; Regina v DJK (1997) 96 A Crim R 443; Harvey; Gillard. In Regina v Johnston (unreported, NSWCCA, 31st July 1998) the Chief Justice drew together the authorities and set out seven propositions to be derived from them:
"(1) Whenever it appears to a trial Judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial he or she should make such comments and give such warnings as will ensure that the trial is fair.
(2) A comment of warning is required if it appears to the trial Judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt.
(3) The need for, and content of, any comment will depend on the circumstances of the case.
(4) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case.
(5) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties.
(6) Where the summing up identifies difficulties pursuant to (5), the trial Judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate.
(7) In some cases a warning which uses terminology such as 'dangerous' or 'unsafe' to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (5)."
47 I consider that this case called for a comment or warning in accordance with the second proposition enunciated above. A jury might not appreciate from its own experience the effects of delay on the ability of the appellant to defend himself. The trial Judge did, in response to the Crown Prosecutor's invitation, give a warning. However, it was confined to general terms. It spoke of the possibility of the appellant having lost what was described as a "defence advantage" such as a "provable alibi". This did not provide much in the way of practical assistance to the jury in the light of the issues raised by the trial.
48 All the offences were said to have occurred at a time when the complainant and the appellant were living in the Muswellbrook home. It was the appellant's account that he had not lived with the complainant and her mother in those premises in the period between 14th July 1992 and Christmas 1993. Doubt would be cast on the complainant's account, at least as to counts 3 and 4, if the jury considered it reasonably possible that throughout the period particularised in respect of those counts the appellant had been living in rented accommodation elsewhere.
49 When first spoken to by police the appellant recalled that he had separated from his wife for a time. He put it as an interval longer than six weeks, perhaps four months. He said that during the period of his separation from his wife he had visited her regularly. Later in the interview he qualified this assertion by saying that the contact with his wife had been occasional. In his evidence at trial it was his account that there had only been one occasion, in August 1993, when he had visited the Muswellbrook home. He led evidence from the complainant's sister, SS, which supported that account to some degree. Not surprisingly, in cross examination he was challenged as to the suggested inconsistency between answers given in the recorded interview and his evidence at trial.
50 After the lapse of five years there was room for debate about where the appellant had been living and the frequency of his visits to the family home. Had the matter been investigated shortly after the happening of the events one would have expected there to be little scope for controversy in this regard. If it be the fact that the appellant was living elsewhere throughout the relevant period it can hardly be doubted that he suffered some disadvantage in first seeking to prove that fact years after the event. The issue was a real one. The appellant tendered documents to support his assertion that he had leased residential premises in the Muswellbrook area in the period between August 1992 and December 1993.
51 This was a case which called for directions (in accordance with proposition (5) above) in which the issue of delay and the disadvantage to the appellant potentially occasioned thereby were linked to the evidence. A direction as to the care with which the jury should scrutinise the prosecution case such as that contemplated by proposition (6) was also appropriate.
52 The complainant's account was uncorroborated. The evidence of complaint may have assumed considerable significance in the mind of the jury. There is an issue as to whether, having regard to the provisions of the Evidence Act, the evidence was admissible. It having been admitted the directions given by the trial Judge as to the use the jury might make of it were plainly inadequate in a number of respects. I would propose that leave be given under r.4 in respect of both grounds 1 & 2. I consider they have been made good. A number of other grounds were advanced and it is appropriate to deal with them before determining what should be the order of the Court.