Sheehan v Regina

Court of Criminal Appeal (NSW)|2006-08-16|Before: Handley JA, Kirby J, Hoeben J, Handley J

CITATION: Sheehan v Regina [2006] NSWCCA 233

JUDGMENT OF: Handley JA at 1; Kirby J at 2; Hoeben J at 135

DECISION: (1) Appeal allowed in respect of counts 1 to 7 inclusive; (2) In respect of counts 1 to 7, the convictions are quashed and the sentences set aside. There should be a new trial in respect of such counts; (3) In respect of count 10, the appeal is dismissed and the conviction confirmed; (4) The appellant and the Crown have leave to make further submissions in writing concerning sentence. The appellant should file and serve such submissions within 14 days and the Crown respond within a further 14 days. The submissions should indicate whether the parties seek to supplement their submissions by oral submissions.

CATCHWORDS: Criminal Practice & Procedure - aggravated sexual assault of young child - Longman warning - did not use word "warning" or "dangerous to convict" - many counts uncorroborated - one count corroborated - proviso - whether miscarriage of justice - whether Longman fundamental to trial.

Longman v The Queen (1989) 168 CLR 79 Crampton v The Queen (2000) 206 CLR 161 Doggett v The Queen (2001) 208 CLR 343 R v BWT (2002) 54 NSWLR 241 SJB (2002) 129 A Crim R 572 R v GS [2003] NSWCCA 73 R v WSP [2005] NSWCCA 427 JJB v R [2006] NSWCCA 126 R v Kesisyan [2003] NSWCCA 259 R v DBG (2002) 133 A Crim R 227 Christophers v The Queen (2000) 23 WAR 106 CASES CITED: Crisafio v The Queen (2003) 27 WAR 169 RBK v The Queen [2004] WASCA 216 Angliss v The State of Western Australia [2005] WASCA 162 R v GS [2003] NSWCCA 73 R v WRC (2002) 130 A Crim R 89 R v Stewart (2001) NSWLR 301 Festa v The Queen (2001) 208 CLR 593 Mraz v The Queen (1955) 93 CLR 493 R v Cohen and Bateman (1909) 2 Cr App R 197 Quartermaine v The Queen (1980) 143 CLR 595 S v The Queen (1989) 168 CLR 266 R v GPP (2001) A Crim R 1

PARTIES: Ronald John Sheehan (App) Regina (Resp)

COUNSEL: H Dhanji (App) P G Ingram (Resp/Crown)

SOLICITORS: J Pearson - LAC (App) S Kavanagah (Resp/Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/701

HANDLEY JA KIRBY J HOEBEN J

Wednesday 16 August 2006 Ronald John SHEEHAN v REGINA Judgment 1 HANDLEY J: I agree with Kirby J. 2 KIRBY J: Ronald John Sheehan stood trial before Coolahan DCJ at a jury in the District Court at Orange. The indictment may be summarised as follows: Count 1 : That between 14.7.81 and 31.12.81 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 6 years (s61D(1) Crimes Act 1900). Count 2 : That between 1.5.82 and 31.5.82 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 7 years (s61D(1)). Count 3 : That between 1.5.82 and 31.5.82 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 7 years (s61D(1)). Count 4 : That between 29.11.82 and 12.12.82 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 7 years (s61D(1)). Count 5 : That between 29.11.82 and 12.12.82 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 7 years (s61D(1)). Count 6 : That between 1.3.85 and 31.3.85 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 10 years (s61D(1)). Count 7 : That between 1.3.85 and 31.3.85 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 10 years (s61D(1)). Count 8 : That between 1.4.85 and 30.4.85 he had sexual intercourse without consent with a child under 16, namely, fellatio with the complainant then aged 10 years (s61D(1)). Count 9 : That between 1.4.85 and 30.4.85 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 10 years (s61D(1)). Count 10 : That between 1.1.86 and 30.6.86 he had sexual intercourse without consent with a child under 16, namely, vaginal intercourse with the complainant then aged 11 years (s61D(1)). 3 The charges were based upon the complaint of "Theresa" (a pseudonym), a woman aged 30 years at the time of trial. The appellant was her stepfather. He pleaded not guilty to all counts. After a trial lasting about a week, the jury returned a verdict of guilty in respect of all counts apart from counts 8 and 9 (where there were verdicts of not guilty). 4 The appellant appeals against his convictions in respect of the eight counts where he was found guilty. There was no appeal against sentence. The Notice of Appeal relied upon a single ground, expressed as follows: "The learned trial judge erred in failing to adequately warn the jury in accordance with Longman v The Queen (1989) 168 CLR 79." 5 Before dealing with the submissions, I shall describe the evidence given during the trial.

The Alleged Offences. 6 The complainant lived with her family in a house in a country town in Spring Street. She was born on 21 February 1975. She was one of four children. She had a twin brother and two older brothers. Her mother married the appellant on 4 October 1980, when the complainant was five years old. 7 It was the Crown case that the complainant's stepfather (the appellant) repeatedly abused her sexually between the ages of six years and eleven years. He forced fellatio upon her, holding the back of her head. He had vaginal intercourse with her in a workshop under the house when she was seven years old, and repeatedly thereafter. On the Crown case, he only stopped in 1986, when the complainant's mother entered the workshop and saw him having intercourse with her daughter. 8 The Crown case therefore included many uncharged acts, in respect of which appropriate directions were given. The counts charged in the indictment, which I will describe shortly, represented particular occasions when the complainant could associate the abuse with particular events. 9 It was an aspect of the Crown case that the appellant was a violent man, who engendered fear. That evidence was relevant to two issues. First, according to the Crown, it explained why the complainant submitted to her stepfather and, secondly, why she made no immediate complaint. Again, appropriate directions were given concerning the relevance of that material. 10 The complainant, for instance, in the course of her evidence, said this: (T84/85) "Q. During the period between the time of the first incident in 81 and the last one you've given evidence about in 86, what was the behaviour of the accused like in your home? A. He was very violent. He used to do drink a lot. There was always arguments in the house. Q. You say he was violent; how did you see him being violent? A. I remember one day he flipped, he come in and pulled, we had a big china cabinet and he pushed it over on its side and picked the glass up and pegged it across the room. And Mum's got a portrait of us and the glass hit the portrait and it scratched all the portrait. He threw the beer bottle towards the wall and the beer bottle went through the wall." 11 The complainant's mother and her brothers said much the same thing. Her mother described how the complainant smashed things and punched holes in the wall (T153). She added this: (T154) "Q. What sort of things would he smash; you said holes in walls, anything else? A. Mm, yes, he'd knock things off the TV, like light and just throw cups of coffee." 12 The complainant's twin brother described his stepfather as "abusive". He would throw things around. The following question was put to him: (T213) "Q. How did it make you feel when you saw him doing that, throwing things around? A. A bit scared." 13 Evidence was given by a child who lived next door and played with the complainant. When she gave evidence she was, of course, a mature woman. She described one episode in these terms: (T223) "A. Mm, me and (Theresa) were playing in the middle bedroom at the house and basically, we always played in the house. One incident I remember, Ronnie Sheehan got very angry for some reason. I remember, I remember smelling alcohol in the air and it wasn't uncommon. He got really angry and started yelling and stuff and basically (Theresa) ended up grabbing me and basically shoving me under the bed, saying to hide. So I was under the bed. She got under the bed after me. We laid there under the bed really, really quiet. We were both scared. He was pacing up and down the hallway, you know, I have no idea what he was angry about but, oh ... " 14 This material provided the context in respect of each count. The complainant also described conduct before the incident which was the subject of the first count. The appellant entered her bedroom whilst she was asleep. She woke up. She saw him pull his penis out of his pants and start masturbating. She said that she felt frightened. 15 Some months later, in November 1981 when the weather was warm, the complainant's stepfather told her to follow him to the bird aviary. The aviary was at the end of the yard near the back fence. She drew a plan (Ex B). The aviary was enclosed at one end, where there were nesting boxes. There was wire mesh at the other end. The aviary was, according to the complainant, on the left of the yard but too far down to be seen from the house. As she accompanied the appellant, she remembered that she was in school uniform. She described what happened in these words: (T68) "Q. When you went to the bird aviary, what happened? A. I followed him in the door of the bird aviary and he took me over to near where the breeding boxes are. Q. Just take your time. A. And he took his penis out of his pants. He grabbed me from behind the head and made me put my mouth over his penis." 16 The appellant made her rub his penis up and down. Nothing was said. Once this stopped, the appellant told the complainant that she was not to say anything to anyone. If she did so, he would "give me a beat". She was frightened. He also said that no-one would believe her anyway. 17 The complainant's mother gave evidence relevant to this episode. She said that, from the house, you could only see into the wire mesh area of the aviary, but not much of the shed (T182). The aviary was later demolished. It was replaced with another. 18 The house in Spring Street is now occupied by someone else. There were photographs of the backyard, which is large (Ex G). The complainant, her brother and mother, had differing recollections as to whether the aviary was on the right or the lefthand side of the yard (cf Exs B, H and N), an aspect which affected its visibility from the house. 19 The appellant did not give evidence. However, after the complainant went to the police in the year 2000, the appellant was invited to participate in a record of interview. He said he would do so. The interview was conducted on 3 July 2003. The complainant's allegations were put to him and were denied. The transcript of the interview included the following: (p33) "Q. All right. So the aviary you've indicated is fairly long, from the back of the house to the back, back fence. A. Yeah, but it was right out in the open in the main driveway." 20 The interview continued: (p35) "Q. Just in relation to that aviary, mate, (Theresa) alleges that the way the aviary was positioned, there was an area that, where you couldn't, you couldn't see into the aviary ... A. No. Q. ... from the house. Is that true? A. No, it's not true, mate. Q. No? A. You could see it from all angles except for the back part ..." 21 The abuse which was the subject of the remaining counts took place, according to the complainant, under the house, where the appellant had a workshop. She said that the door giving access to the workshop had a latch. The appellant had rigged up a light, which she described in these terms: (T75/76) "Q. What was that? A. It was a light that he ran a cord down through the boys' bedroom and had a power board up on the wall and he had a light hooked up under there for that. Q. When you say he did have a light hooked up, did you see him hooking that light up? A. Yes. Q. What did he do so that he could hook that light up? A. He drilled a hole through the boys' bedroom floor and thread the cord, an extension cord through the hole and then he mounted a power board where you can switch it on and off at the power board up on the wall and then he ran a light on a lead to the power board and he had the light hooked up on the wall." 22 The complainant's mother said that she occasionally went under the house. There was a steel mesh door which you could not actually see through unless you went right up to it. A recent photograph of the door was tendered. The door frame was the same, but the door had changed. The mother said there was a slip bolt on the outside. Her husband kept his tools in the workshop. There was an electric light which she described in these terms: (T159) "Q. How was it set up? How was the light set up? A. It was just up on, like on an extension cord and it was on to the - coming off the - under the floor, like hanging." 23 The mother added: (T159) "Q. Was that like that when you moved into the house in Spring Street? A. No. Q. How did it come to be there? A. Ronnie put that there. Q. What did he do to set it up? A. Drilled a hole in the floor in the bedroom and threaded the lead up through into a power point in the bedroom." 24 In the record of interview, the police asked the appellant about this detail. He said this: (p19) "A. No, there was no lights underneath no house, mate. Q. No light? No light? A. I wouldn't know the first thing about electricity, let alone hooking lights up." 25 The police also asked whether he'd drilled a hole through the floor, passing cord through the hole. He answered in these terms: (p20) "A. I'm sorry, mate, I can't remember drilling through because I don't know much about electricity." 26 The appellant said he kept a lawnmower under the house and some tools. There was a door, but no bolt. He was shown photographs taken under the house and told to ignore the scattered possessions depicted in those photographs. He responded by saying, "it has all changed". The complainant and her mother were shown the same photographs. They both said that it looked much the same. 27 Moving then to the second and third counts, the complainant gave evidence that some months after the incident at the aviary, she was taken by the appellant to the workshop under the house. She said this: (T75) "Q. What happened when he took you under the house into this workshop? A. He put his - he made me put my mouth over his penis and then after that he made me lay on the ground and take my pants off and then he laid on top of me." 28 He then inserted his penis in her vagina. She did not know how long it went on. It "felt like about 20 minutes". According to her evidence, the appellant threatened her in these terms: (T75) "Q. What did he say to you? A. He had a big machete in his hand and he said if I said anything, he'd chop me up, and then if I told anyone they wouldn't believe me anyway. Q. Did you see where he got the machete from? A. Yes, from near the side of the door, on the right-hand side of the door on a ledge thing on the brick wall. The machete was up there." 29 The complainant drew a sketch of the machete. She acknowledged in cross examination that, when she first spoke to the police in October 2000, she made no reference to the machete. She made a number of statements. The machete was first mentioned about two years later (6 February 2003). She said that, at the time of her first statement, she was upset and emotional. She felt somewhat rushed. 30 The complainant's mother gave evidence that, amongst the tools in the workshop, there was a machete. She, likewise, provided a sketch. Her description of the machete and her sketch was, in each case, similar to that provided by her daughter. 31 The complainant said that the same conduct occurred again and again. The charges in counts 2 and 3 were specific occasions where she was able to fix the approximate date of the offending behaviour. She remembered having her tonsils out. She thought it was in October 1982. Medical evidence was tendered which established that the operation was on 13 May 1982 (Ex V). The counts were therefore framed as having occurred between 1.5.82 and 31.5.82. Her mother was in hospital at the same time. Arrangements had been made for the complainant to stay with a friend once she left hospital. Two days after her discharge, she came home to collect clothes. Her stepfather entered her bedroom. She was told to go under the house. She said she did so because she was frightened. He made her put her mouth on his penis. He then lay her on the ground and inserted his erect penis in her vagina. She was then seven years old. 32 Counts 4 and 5 relied upon conduct described in almost identical terms. The indictment alleged that the intercourse had taken place between 29 November 1982 and 12 December 1982. The complainant fixed these dates by reference to the death of the appellant's mother. The incident, according to her testimony, occurred several days after his mother's funeral. It was established that the funeral was on 1 December 1982. 33 Counts 6 and 7 alleged sexual intercourse between 1 March 1985 and 31 March 1985. The complainant was ten years old. The complainant was taken to the workshop. The abuse by the appellant was said to be the same. The complainant fixed the time by reference to the wedding of her aunt. A marriage certificate and wedding photographs were tendered, establishing that the wedding took place on 24 March 1985. 34 Counts 8 and 9 asserted sexual intercourse between 1 April 1985 and 30 April 1985. Again, the conduct alleged against the appellant was the same. The complainant fixed the time by reference to a barbeque at Spring Street which was held on her stepfather's fortieth birthday. His fortieth birthday fell within the span of time alleged in the indictment. She said that she was taken to the workshop on the morning of his birthday. She recalled that his sisters were present at the barbeque. When cross examined, she said she had no recollection of a barbeque attended by a number of people in 1982, when the appellant received compensation in respect of a back injury. 35 Two of the appellant's sisters gave evidence. Neither attended a fortieth birthday party at Spring Street. Both, however, remembered attending a barbeque at Spring Street to celebrate compensation received by their brother. The complainant's mother said that the appellant received compensation in 1982. She said there was a barbeque in 1982 or 1983, where a number of people were invited. She could not remember whether the occasion was the receipt of compensation or the appellant's birthday. 36 The Crown, in these circumstances, acknowledged, when addressing the jury, that the complainant may have been mistaken in associating these events with the appellant's fortieth birthday. The jury, as stated, returned verdicts of not guilty on both counts. His Honour, in his remarks on sentence, made the following comment in respect of the not guilty verdicts: (ROS 3) "... it was open for the jury to conclude, as they obviously did, that there was a reasonable doubt about not so much whether the incidents occurred, but rather whether they could have [been] said to have occurred, within the dates specified in the indictment. In my view, the verdicts of not guilty on those counts were not inconsistent with the guilty verdicts on the other counts for this reason." 37 The grounds of appeal do not include an assertion that the verdicts were inconsistent. 38 The final incident (the subject of count 10) alleged vaginal intercourse in the workshop between 1 January 1986 and 30 June 1986, when the complainant was 11 years old. She fixed these dates because she remembered that she was in Year 5 at a particular school. She named her teacher. Her teacher was called to give evidence. School photographs were tendered, as well as school records. 39 Her description of this incident was the same as her description of the appellant's conduct on other occasions. She was told to come to the workshop. Her mother was at home. Although she knew what was about to happen, she went. She said she did so because she was frightened of the appellant. However, on this occasion, he omitted to latch the door. He lay her on the ground. His jeans were around his ankles. He inserted his erect penis inside her vagina. 40 The complainant then saw her mother walk into the workshop. The appellant pulled back. He supported himself on his knees. Her mother pushed him and he fell to one side. She yelled at him: "What do you think you're doing?". She told her daughter to go to her room. Once in the house, the complainant heard the appellant say, angrily: "... Just because I fucked your daughter." Her mother came into the complainant's bedroom. She did not talk about what had happened. She simply told her daughter to forget about it. 41 The complainant's mother described the same incident. She said this: (T167) "Q. So you opened the door, is that correct? A. Yeah. Q. What did you see? A. (Theresa) was laying on the ground and she had her pants down around her ankles, down like, and Ronnie was kneeling sort of in between her legs." 42 She saw the appellant's penis and it was erect. His jeans were undone. When asked what he later said, the mother replied: (T169) "... oh, he just screamed at me, 'I fucked your daughter'." 43 Two or three months later the complainant's mother and the appellant separated. He left the house at Spring Street. The following questions were put concerning the mother's relationship with her husband before he left. She said this: (T170) "Q. Prior to him leaving for that two or three months, did you talk to him about what you'd seen in the room under the house? A. No. Q. Why didn't you? A. Because he's a very violent person and I was too scared to. Q. Did you speak to (Theresa) about what you'd seen? A. No." 44 The mother gave evidence that the appellant later asked to come back. He said that he had changed. She allowed him to do so. He remained about twelve months and then left again. He did not, thereafter, return. 45 The appellant, in his record of interview, denied any such incident. It was put to the mother when she was cross examined that there was no such incident. It was suggested the appellant did not say: "I fucked your daughter". The mother insisted that there was such an incident and he did say that. 46 Counsel for the appellant, in his address to the jury, emphasised a number of matters. First, the complainant fundamentally suggested that fellatio and intercourse occurred three times a week. That, he said, was simply unbelievable. Secondly, her account that the door to the workshop was latched was unsupported. No-one else spoke of a latch on the door, except on the outside. According to her testimony, her mother was able to walk into the workshop. Thirdly, the complainant said each incident took place in complete silence. That, it was suggested, was also unbelievable. Fourthly, a comparison of statements and evidence revealed some discrepancies, both in the complainant's account and that of her mother.

Additional Confirmatory Evidence. 47 The mother's evidence, if accepted, provided corroboration of the complainant's account in respect of count 10, as his Honour instructed the jury. There was, in addition, other evidence that confirmed certain aspects of the complainant's account, although the evidence was not related to any particular count. The mother, for instance, gave evidence that a machete was kept under the house. The complainant also said this: (T122) "Q. Now, did you notice anything in relation to his penis? A. Yes. Q. What was that? A. He had a distinctive bend in his penis." 48 The complainant drew a sketch (Ex F). The appellant's previous partner gave evidence. She lived with the appellant for ten years. She said this: (T184) "Q. So far as his penis is concerned, when in an erect position what do you say about that? A. I say that it had an unusual bend in it and he said to me himself one day it had a bend in it like a banana." 49 This witness also drew a sketch, not dissimilar to that drawn by the complainant (Ex M). Counsel for the appellant put to the witness that there was no such bend. She said that there was. The complainant's mother, on the other hand, could not remember anything distinctive about the appellant's penis (T180). 50 The complainant's cousin gave evidence. He used to play with her brothers. He would regularly go to the house in Spring Street. He recalled an incident in the early 1980's. He gave the following evidence, referring to the workshop under the house: (T186) "Q. In relation to that room under the house, did you ever see, did you ever see the accused come out of that room? A. Yes. Q. Did you see him come out with anybody else on any occasion? A. Yes. Q. Who was that? A. (Theresa). Q. What did you see, can you describe it? A. Just seen (Theresa) and Ronnie come out and (Theresa) was straightening up her dress, like pulling it down sort of thing. Q. Who came out of the room first? A. I think it was Ronnie. Q. Then how long after did (Theresa) come out? A. Probably half a minute or minute, something like that." 51 One of the complainant's brothers gave evidence that the children were not allowed to go under the house, where the appellant stored his tools, unless they went with them. The same brother, incidentally, said that there was no lock on the door providing access to the workshop under the house. 52 As mentioned, the appellant did not give evidence. His sisters were called to establish that there was a barbeque at Spring Street in 1982, but no fortieth birthday party. They also said that, from time to time, the appellant stayed with one or other of them, and was absent from the house at Spring Street (a matter put to the complainant and her mother and denied).

The "Longman" Warning. 53 The events, the subject of this prosecution, were said to have taken place between 1981 and 1986. The complainant went to the police in 2000. The police confronted the appellant in 2003. By that time the allegations were very old (between 17 and 22 years). There was a further two year delay before the trial. Counsel then appearing for the appellant addressed the jury emphasising that they were old allegations. He said this: (T273) "... It brings the lack of proper and cogent evidence. Imagine, for instance, if these allegations had been brought at about the time, between 1982 and 1986, then there would be, for instance, the opportunity for a medical examination of the complainant. So old matters bring a lot of problems. You imagine if you, as a man, or your husband or your son, your father, police knock on your door and you are confronted by police with allegations that are 20 years ago, you are taken off to the police station and interviewed, how difficult would your position be for that of your father or brother or son? His Honour no doubt will tell you very clearly about those problems and give you directions of law about being dangerous to convict. You see, what this case relies upon is the word of (Theresa) and the memory of (Theresa), (Theresa) being a very young girl at the time. ..." 54 At the conclusion of counsel's address, there was a discussion about the directions that should be given in the summing up. The discussion included the following exchange: (T290/91) "HIS HONOUR: Mr Walsh, you referred to a direction that you anticipated I would give, that it would be dangerous to convict. WALSH: Yes, your Honour. HIS HONOUR: I take it you are asking for that direction. WALSH: That is part of the Longman direction. Yes, I am asking for that your Honour. HIS HONOUR: It is not an essential part of the Longman direction. It is not always given in cases where there is a long delay in the absence of complaint. What is usually or always given is the Murray direction, that the complainant's evidence would have to be scrutinised with great care. WALSH: I press that your Honour give them a direction it would be dangerous to convict. HIS HONOUR: What do you say, Mr Crown? CROWN PROSECUTOR: The Murray direction goes to the corroborated evidence of the complainant and in this case your Honour there is certain corroboration in relation to count ten on the indictment and strong corroboration the Crown submits to your Honour." 55 His Honour said that he would give the issue some thought. The following day, shortly before the summing up, his Honour said this: (2.3.05: T2) "I don't intend to sum up on the evidence but I'll put the cases for both sides. I don't intend to give a warning that it would be dangerous to convict but I'll certainly give a strong warning about the need for them to scrutinise the evidence with great care, particularly in the light of the long time that has elapsed between when these alleged incidents occurred and now." 56 Before examining his Honour's summing up and its alleged shortcomings, it is useful to be clear about what his Honour was obliged to say in conformity with Longman v The Queen (1989) 168 CLR 79 and the cases that have followed. 57 There are similarities between the facts in Longman and this case. The delay in Longman exceeded 24 years. The complainant was a 32 year old woman. She described events which took place when she was a six year old child. She said that her stepfather had indecently assaulted her. Counsel for the accused asked the trial Judge to warn the jury of the danger of acting upon the uncorroborated evidence of the complainant. He declined to do so and Longman was convicted. However, the Court set aside the convictions and ordered a new trial. Brennan, Dawson and Toohey JJ said this: (Longman v The Queen (supra) at p91) "... But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer [1987] AC at p 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) (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 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." 58 That passage is the source of the Longman warning. The message was repeated and reinforced in two cases that followed (Crampton v The Queen (2000) 206 CLR 161; and Doggett v The Queen (2001) 208 CLR 343). Crampton v The Queen concerned a charge of indecency by one male upon another. The accused was a teacher working at a school for the disabled. It was said that he committed an act of indecency in 1978. The complaint against him was made in 1997, a delay of nineteen years. There was further delay in bringing the matter to trial. 59 The Court (Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ, McHugh dissenting) agreed that the directions given by the trial Judge did not conform with Longman. Gaudron, Gummow and Callinan JJ said this: (at 181) "44. As the appellant submits, the first reference by the trial judge to delay was followed by an observation which could have diminished the effect of the caution - it did fall short of a warning - against acting on the evidence of the complainant of a complaint so long delayed. To say what her Honour did in the first passage from her summing up that we have quoted was to say too little, too unemphatically, and less than what Longman required be said in the circumstances of this case. The redirection, which we have also quoted, suffered from some of the same or similar deficiencies." 60 Their Honours added: (at 181) "45. The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to what 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." 61 Hayne J said this: (at 211/12) "142. The trial judge did comment about the fact that the complainant made no complaint about the appellant until long after the incident was alleged to have occurred. As the trial judge said to the jury, this deprived the appellant of an opportunity to 'look at matters which were happening at about [the time of the alleged incident] and to raise them in evidence' and it probably reduced the capacity of the complainant to be accurate. As the joint judgment in Longman points out (248), 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." 62 His Honour added, referring to the judgment of the Court of Appeal: (at 212) "143. ... Although reference was made to Longman , it seems to have been treated as holding no more than that a trial judge must 'bring home to the jury the need for caution and careful examination of the evidence' (250) and, in particular, that delay in complainant produced difficulties for the appellant (251). That, as I have pointed out, is not a sufficient or complete statement of what was held in Longman . There was a miscarriage of justice at trial." 63 The High Court returned to the issue in Doggett v The Queen (supra), the difference being that there was, in that case, corroboration of the complainant's allegations. The complainant first made her allegations in 1998. She alleged indecent assault and attempted rape by a man who looked after her whilst her mother was away. She identified seven occasions between 1979 and 1986. Having approached the police, she made a telephone call to the accused. The call was lawfully intercepted. He made a number of admissions. There was other evidence as well, which was capable of being regarded as corroboration. 64 In directing the jury, the trial Judge said that they should scrutinise the evidence very carefully, but lack of contemporaneous complaint did not prove that the offences did not occur. 65 The Court, by majority (Gaudron, Kirby and Callinan JJ, Gleeson CJ and McHugh J dissenting) held that, notwithstanding the corroboration, the Judge should have given the Longman warning. Gaudron and Callinan JJ said this: (at 356) "51. ... 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, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred." 66 Gleeson CJ, however, made the following comment: (at 348) "9. ... If, by a Longman warning, it meant a warning that it was unsafe to convict on the uncorroborated evidence of the complainant, in the circumstances of this case such a warning, to be of practical assistance to the jury, would have required the trial judge to go into the matter of corroboration, to direct the attention of the jury to the evidence capable of being regarded as corroborative, and to explain its possible significance. Why would defence counsel invite that? As far as he was concerned, the less said about corroboration the better. 10. Longman v The Queen 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. Furthermore, in the present case, the jury could not reasonably have found that the evidence of the complainant was uncorroborated." 67 McHugh J (dissenting) said that in Longman the jury was being asked to convict on the uncorroborated evidence of the complainant after a 20 to 25 year delay (para 80). His Honour added: (at 364/65) "81. But the present case is very different. There was no chance of the complainant being mistaken. She was either telling the truth or lying. There was very strong corroborative evidence of her evidence. As a general proposition, it cannot be dangerous to convict on the evidence of a person whose evidence is corroborated. Nor did the jury need to be warned that it was dangerous to convict on her evidence because of delay or the circumstances of the alleged offences. ..." 68 There followed a number of appeals to Courts of Criminal Appeal where it was said that the warning had not been given, or not given in terms which were adequate. In R v BWT (2002) 54 NSWLR 241, Sully J (Wood CJ at CL and Dowd J agreeing) helpfully sought to encapsulate the principles emerging from these authorities. Where there had been substantial delay, there must be a warning, not simply a comment or a caution. It must be correctly focused and framed. It must identify particular problems which delay may have occasioned to the accused. It must not be simply a repetition of counsel's arguments, but must have the unmistakeable authority of the court (at 273/4). The terms of the warning, Sully J suggested, must cover the following propositions: (at 273) "... first, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly , that it would be, therefore, dangerous to convict on that evidence alone; thirdly , that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly , that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly , 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 sixthly , 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." 69 The formulation by Sully J has since been adopted in a number of cases (SJB (2002) 129 A Crim R 572; R v GS [2003] NSWCCA 73; R v WSP [2005] NSWCCA 427). However, as pointed out in JJB v R [2006] NSWCCA 126 (para 43), some courts, and some judges, have seen the need for greater flexibility, when assessing compliance with the Longman requirements, than R v BWT would appear to allow (R v Kesisyan [2003] NSWCCA 259, esp at para 8 per Meagher JA and paras 19-21 per Sully J). In R v DBG (2002) 133 A Crim R 227 (a case involving delay of only four years), Howie J (Meagher JA and Simpson J agreeing) said this: (at 234/5 para 30) "In the present case, I am unpersuaded that it was necessary, either as a matter of law or in order to ensure a fair trial to the appellant, that the trial judge use the phrase 'dangerous to convict' in warning the jury as to the approach to be taken when assessing the complainant's evidence. No such warning was sought by an apparently competent defence counsel." 70 The approach in Western Australia has been similar (Christophers v The Queen (2000) 23 WAR 106 at [37]; Crisafio v The Queen (2003) 27 WAR 169 at [1], [20]-[31]; RBK v The Queen [2004] WASCA 216 at [34], [99]; Angliss v The State of Western Australia [2005] WASCA 162 at [15]). In R v WSP (supra), the trial Judge drew the attention of the jury to the 11 year delay before the accused was told of the allegations. She then said this (as set out in the judgment of Hulme J): (at para 175) "In those circumstances it is most important that I give you these warnings. It is most important that you appreciate fully the effects of the delay - that is that delay between 1989 and 2002 - on the ability of the accused to defend himself by testing prosecution evidence or by adducing evidence in his own case to establish a reasonable doubt about his guilt." 71 Her Honour then reminded the jury of the evidence of the complainant. Her summing up continued in these terms: "As Mr Buckman has made clear to you, it is obvious that, with the passage of time, the accused is not in a position to cast his mind back or to consult records or to come up with any evidence of where he might have been on any of those occasions, in a way which might have allowed him to call evidence to cast doubt on the Crown case. It is that particular feature of the delay - between 1989 and 2002 - which you must take into account when you come to consider the evidence of CJ, and when you come to determine, whether or not, you can rely upon her evidence as a witness of truth. In other words, you could only convict the accused if you were satisfied beyond reasonable doubt of the truth and reliability of the complainant's evidence, with respect to each of the seven charges in the indictment, and only after taking into account to fact that the passage of time, since these events, has direct[ly] affected the ability of some of the Crown witnesses to accurately recall the chronology and the surrounding circumstances of these events, and you will recall, of course, KK - her memory is equally affected by the passage of time - as was, I would have thought, the complainant's brother who came to give evidence as well." 72 Hulme J (with whom Sully J agreed) reached the following view: (at para 177) "On behalf of the Appellant it was submitted that although her Honour used the word 'warnings' the words that followed possessed more the characteristics of a 'comment' or 'caution'; that her Honour's remarks did not comply with the propositions Sully J had introduced by the terms 'first' [that because of the passage of time the evidence of the complainant cannot be adequately tested], 'fourthly' [that the jury cannot be satisfied without having scrutinised the evidence with great care] and 'sixthly' [that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warnings as to the danger of conviction]; and such warning as was given was not so framed as to bearing the imprint of the courts' authority and collective wisdom in adjudicating sexual cased involving great delay." (parenthesis added) 73 His Honour also accepted that the extent of the delay and the absence of significant corroboration meant that the trial Judge should have instructed the jury in the form of the words used in Longman "that it would be dangerous to convict". Hulme J concluded as follows: (at para 182) " ... I am satisfied that the summing-up does not reflect the strength of the warning which the majority of the High Court said should be given. Thus I do not see reflected in the summing up the strength inherent in the combination of the words, 'scrutinising', 'with great care', 'considering the circumstances relevant to its evaluation and paying heed to the warning'." 74 The Chief Justice took a different view. He analysed the warning which had been given. He observed first, that it was a warning and not a comment; secondly, that her Honour had added the authority and weight of the court to her instructions; thirdly, that the trial judge had identified why it was necessary to administer a warning, namely, that delay (between 1989 and 2002) had adversely affected the ability of the accused to defend himself by testing the prosecution evidence or by adducing evidence; fourthly, that her Honour had expressly linked the warning to the task which the jury was required to perform, requiring them to take account of the delay in making the critical assessment about the truthfulness and reliability of the complainant. The Chief Justice added: "[13] It is wrong to treat any judicial statement, even in a judgment of the High Court, as the equivalent of a statutory formula. The issue is whether or not the critical features of the Longman warning were, as a matter of substance, transmitted to the jury. In my opinion they were."

The Summing Up. 75 I will shortly set out his Honour's instructions to the jury. It will be apparent that his Honour did not, when dealing with the Longman issue, use the language of the High Court. He did not use the word "warning". He did not use the expression "dangerous to convict". He did not incorporate the phrase "testing the complainant's allegations". He should have done so, elaborating where he saw the need. By not doing so, an issue has been created on this appeal, whether, in substance and in strength, he captured the important components of the Longman warning. 76 An understanding of whether his Honour's instructions to the jury were in substance a warning, given with the authority of the Court, makes it necessary to refer to earlier passages in the summing up. The Crown said they provided the context which was important to an understanding of what was said. 77 His Honour began the summing up by telling the jury that he would be dealing with issues of law. He said this: (SU 1) "Members of the jury, in a longer trial a Judge's summing-up normally falls into two parts. There are the directions of law that I am about to give you and the Judge also normally summarises the evidence. You might not think so, but as things go this has been a relatively short trial. I therefore do not intend to summarise the evidence for you, hopefully it will be reasonably fresh in your mind ..." 78 He then explained to the jury the different roles they each performed. He told them that his directions of law were binding upon them (SU 2). He gave the usual directions concerning the assessment of witnesses and the need to consider both honesty and accuracy. Having identified the elements of the offence, his Honour dealt with the fundamental importance of the complainant's evidence to the proof of each element. 79 His Honour then dealt with the issue of complaint, or rather, the absence of complaint, making it clear that his instructions were directions of law. He said this: (SU 15/16) "That brings me, members of the jury, to this issue of complaint. The complainant did not complain, that is to say, tell anyone about these alleged offences soon after they were allegedly committed. Lack of complaint may indicate that the allegations have been fabricated. You are entitled to, in considering the whole of these matters, to have regard to the fact that there was no complaint to anyone immediately or soon after any of these alleged acts were committed. As I say, it may indicate fabrication. But the law recognises that there may be many good reasons why a person who has been sexually assaulted does not make an immediate complaint. Here, of course, you would take into account the complainant's age at the time and of course the Crown relies upon her evidence that she did not tell anyone because she was frightened of the accused, he had threatened her with violence and he had told her that even if she told anyone she would not be believed." 80 Having referred to delay, his Honour moved directly to the Longman warning. He said this: (SU 16/17) "There then was not any complaint, members of the jury, it appears, until the year 2000. You are entitled of course to take that further long period into account in determining whether there is a possibility that these allegations are fabricated. But you also have to bear in mind as I said, that the law does recognise that people who have been sexually assaulted sometimes do not complain and sometimes for long periods and that there may be good reasons for that. But the fact that no complaint was made for such a long period of time does have some important ramifications and it is important for you to bear them in mind. The law recognises that as time goes by memory becomes more frail, the longer the period of time the less likelihood your memory is to be reliable. The law recognises that as time goes by your memory of events, particularly events in childhood, can fade or become distorted even. But more importantly in this case, the law recognises that because of the long period between when these acts are alleged to have been committed and when the accused was first appraised of them in 2003, he has been put at a significant disadvantage in meeting those allegations. As I said to you before, the accused does not have to prove anything nor does he have to disprove anything but like any of us who are charged with a criminal offence, he is entitled to mount a challenge to those charges. His ability to do so in this case, well as a matter of commonsense, has been significantly hampered because of the fact that he was not made aware of the nature of these charges until many, many years after they are said to have occurred. And that is a matter which you must take into account when it comes not only to consider the case presented for the accused in this trial but in relation to the whole of the evidence in the trial itself and there are examples during the course of this trial as to how that long period of time has affected people's memories." 81 His Honour then gave an illustration, referring to a witness who had been called by the accused, which the appellant submitted was an unfortunate example. His Honour said this: (SU 17/18) "One of the sisters of the accused gave some evidence and it was quite clear, you might think, it is a matter for you, that she had difficulty in remembering back that far. The Crown itself asks you, in essence, to say if you do have a reasonable doubt about the complainant's evidence on the 40th birthday party, that that is an understandable mistake because of the lapse of time from when that event allegedly occurred and when she gave evidence." 82 The summing up continued: (SU 18) "So that you can see, members of the jury, very readily that anyone who is forced to face allegations and to challenge allegations relating to events that occurred many years ago, will have real difficulties in doing so. Memory fades, forensic testing that might have been available such as a medical examination can no longer occur, it may be that had the accused been made aware of these allegations soon after the acts were allegedly committed he may have been able to investigate things such as alibis and so on. His ability to meet the charges has been very significantly compromised by the fact that he was not appraised of them until many, many years afterwards and as I say that is an important factor for you to consider when it comes time for you to assess all the evidence in the case and particularly when it comes time for you to assess the evidence of what he said to police in his interview with them." 83 His Honour, in this context, referred to the issue of corroboration. He said this: (SU 18/19) "The next thing is this, members of the jury, in relation to all counts in the indictment except count 10, there is no corroboration. Corroboration is evidence from a source independent to that of the complainant which would tend to support her account of events. I can tell you as a matter of law that in counts 1 to 9 there is no corroboration. In count 10 if you were to accept the evidence of (the complainant's mother) that could amount to corroboration, that is to say evidence which supports the allegations made by the complainant in relation to that count. Whether or not you do accept the evidence of (the complainant's mother) or not is entirely a matter for you. Because in relation to counts 1 to 9 inclusive there is no corroboration and indeed because of the length of time that has elapsed between when the complainant and her mother give evidence about these alleged events and when they occurred, before you could return verdicts of guilty in respect of any of these counts you would have to scrutinise the evidence of the complainant and her mother with great care. You might think that that direction simply accords with commonsense. These are old complaints, in nine of them there is no evidence of corroboration, in one of them there is." 84 Having said these words, his Honour then reminded the jury that he did not intend to sum up on the facts. He referred briefly to the arguments put by the Crown and counsel for the accused. 85 Having completed the summing up, his Honour invited comments from the Crown and counsel for Mr Sheehan. In the absence of the jury, a number of issues were raised. Mr Walsh, counsel then appearing for the accused, said this: (SU 29/30) "WALSH: ... And also your Honour in relation to the delay, in the light of the case of Johnstone (1998) 45 NSWLR 362 it was also referred to in the case of R v BDG unreported [2002] NSWCCA 328, that to quote the case of BDG, 'If it can be shown actual prejudice has been caused to the accused in defending himself that prejudice is to be identified for the jury with particularity'. HIS HONOUR: Well what actual prejudice is there that I haven't referred to? WALSH: Well the destruction of hospital records, the destruction of legal records, the destruction of the aviary, the fact that the, it appears that the door has changed at the house, suggestion in the interview, the ERISP interview by the accused that underneath the house has changed, matters such as that your Honour. HIS HONOUR: Anything else, any other that you can think of? WALSH: The, the death of persons, there was some evidence that the accused stayed with his father at Hereford Street, Bathurst, the father is now deceased. I think they're the main matters, your Honour. HIS HONOUR: Yes I think I should refer to those, Mr Crown. CROWN PROSECUTOR: Yes, your Honour. WALSH: Nothing other than those, your Honour." 86 The jury was brought back. His Honour supplemented his instructions on the Longman issue as follows: (SU 31/32) "The final thing is this, I gave you some general ideas about the way in which the ability of the accused to mount a challenge to the charges preferred by the Crown has been affected by the long delay in them being brought to his attention, particularly in relation to failing memory and so forth, but there are some other specific matters that have been identified. For instance, there is evidence that relevant hospital records have since been destroyed, legal records have since been destroyed, the aviaries have been destroyed, there is evidence that the door to the underground section of the house has changed. There is evidence that there may have been some change to the underneath area of the house. There was evidence that from time to time in the relevant period the accused stayed with his father in Hereford Street and his father has now since died. They are some particular examples of the way in which the ability of the accused to mount a challenge to the case brought by the Crown has been detrimentally affected by the long delay in having these allegations brought to his attention." 87 The jury retired at 11.37 am. It returned verdicts of guilty on all but counts 8 and 9 at 4.07 pm.

The Submissions. 88 It was submitted on behalf of the appellant that the instructions by his Honour failed to comply with Longman v The Queen and suffered from the following shortcomings: · first, the instructions were not framed as a warning, · secondly, they lacked the required strength, · thirdly, the instructions were undermined by other directions given; and · fourthly, his Honour failed to warn of the difficulties of testing the evidence as a result of the delay. 89 Let me shortly describe the submissions made by each party. Since there is overlap between the various criticisms made by the appellant I will, except where I regard the issue as clear, refrain from expressing a view until the end. 90 Dealing with the first issue, that the instructions were not framed as a warning, the appellant relied upon the fact that his Honour at no stage said that he was giving a warning. The jury was simply told: (SU 16) " ... But the fact that no complaint was made for such a long period of time does have some important ramifications and it is important for you to bear them in mind." 91 Such an instruction was, according to the appellant, more in the nature of a comment than a clear indication that what followed was a warning. 92 The Crown responded first, that, within the context of the summing up, the jury were left in no doubt that his Honour was providing directions of law, which were binding upon them. His directions, it was submitted, had the authority of the court. Secondly, whilst not using the word "warning", his Honour's directions did warn the jury. They contained an unmistakable message that caution was required. Immediately following the passage relied upon by the appellant, and set out above, his Honour three times uses the phrase "the law recognises". He said the law recognised that, with time memories fade and are apt to become unreliable. The law recognised that memory of events, particularly childhood events, can fade or become distorted. More importantly, his Honour said, the law recognised that "because of the long period between the acts and when first (apprised) of the allegations in 2003, the appellant" has been at a significant disadvantage in meeting those allegations. His Honour, it was suggested, was providing the jury with instructions based upon the accumulated experience of courts. 93 Moving to the second issue, the directions, according to the appellant, lacked the required strength. His Honour refused to use the phrase "dangerous to convict", or even "dangerous to convict on the complainant's evidence alone", referring to counts 1 to 9, as well as uncharged acts. The words chosen by his Honour did not, according to the appellant, capture the substance of the warning, which was a composite idea expressed by the High Court in these words: (at 91) "... that 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." 94 Using the words of the Chief Justice in his minority view in R v WSP (supra), it could not be said, according to the appellant, that the instructions given to the jury achieved the same end as the Longman requirements. 95 The Crown emphasised in reply that no form of words was required, provided the instructions in substance conveyed the essential elements of Longman. It was submitted that, in substance, his Honour's instructions did so. The jury was told of the adverse effects upon reliability of delay. It was told of the disabling effects of delay upon an accused's ability to mount any sort of challenge. His Honour directed the jury that there was no corroboration concerning the allegations in counts 1 to 9, but evidence capable of amounting to corroboration (if accepted) in respect of count 10. The Crown relied especially upon the following instructions given by his Honour: (SU 19) "Because in relation to counts 1 to 9 inclusive there is no corroboration and indeed because of the length of time that has elapsed between when the complainant and her mother give evidence about these alleged events and when they occurred, before you could return verdicts of guilty in respect of any of these counts you would have to scrutinise the evidence of the complainant and her mother with great care. You might think that that direction simply accords with commonsense. These are old complaints, in nine of them there is no evidence of corroboration, in one of them there is." 96 His Honour repeated this direction shortly thereafter, having referred to counsel's arguments, although it must be acknowledged that he diluted the effect of the repetition by adding the words "but you might think". 97 The Crown drew attention to the redirections at the end of the summing up, where specific examples of ways in which the appellant had been disadvantaged were provided. The jury was told of the need to scrutinise the evidence of the complainant and her mother with great care. According to the Crown, in substance the only thing that was missing was the phrase "dangerous to convict". 98 The third complaint was that his Honour's directions on delay were undermined by other directions also given. The appellant pointed to two passages where, having given a direction, his Honour added that his direction was no more than commonsense. In the analysis provided by Sully J in R v BWT (supra), his Honour, in the context of Longman, cautioned against describing something as simply "commonsense". His Honour said this: (at 273/4) "... 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 commonsense of the jurors would in any event have indicated. ... " (emphasis added) 99 The first passage which is criticised by the appellant, where his Honour referred to "commonsense", was in these terms: (SU 17) "As I said to you before, the accused does not have to prove anything nor does he have to disprove anything but like any of us who are charged with a criminal offence, he is entitled to mount a challenge to those charges. His ability to do so in this case, well as a matter of commonsense , has been significantly hampered because of the fact that he was not made aware of the nature of these charges until many, many years after they are said to have occurred. And that is a matter which you must take into account ..." (emphasis added) 100 Almost at the end of his instructions concerning Longman, his Honour again referred to "commonsense". He said this: (SU 19) "... before you could return verdicts of guilty in respect of any of these counts you would have to scrutinise the evidence of the complainant and her mother with great care. You might think that that direction simply accords with commonsense . These are old complaints, in nine of them there is no evidence of corroboration, in one of them there is." (emphasis added) 101 The appellant submitted that these directions significantly undermined the instructions concerning delay. The Crown rejected that argument, making the following submissions: "48. ... the directions here impugned emphasised for the jury that the requirement that the adverse effects of the delay upon the Appellant's ability to undermine the Crown case and/or mount a positive defence case (SU 17.5) and the requirements to scrutinise the evidence to (Theresa) and her mother (SU 19.4) were not merely imperatives prescribed by law, they also accorded with commonsense. 49. The directions did not identify the subject matter merely as a matter of commonsense. Rather, the directions associated the application of the relevant legal principle/consideration with what the jury would regard as good, sound commonsense." (emphasis in original) 102 I agree with the Crown's submissions. Whilst there are other matters of concern, I do not accept that the reference to commonsense undermined the instructions given. 103 The final complaint is that the trial Judge failed to refer to the difficulty which the appellant had "in testing the evidence of the complainant (and her mother) as a result of the delay". Every formulation of the Longman principle includes this aspect (cf JJB v R (supra) (para 95)). The appellant, in written submissions, referred to a number of passages in R v GS [2003] NSWCCA 73, including the following passage from my judgment in R v WRC (2002) 130 A Crim R 89: (at 138) " 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), page 602), 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 (at 440, para 118)." 104 Returning to R v GS (supra), Smart AJ said this (Santow JA agreeing): (at para 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." 105 The appellant acknowledged that his Honour said that he was at a disadvantage "in meeting" the allegations of the complainant, in the sense of bringing a positive case. He gave an example of the loss of opportunity of forensic testing in medical examinations (SU 18), but he did not, according to the appellant, deal with the difficulties he faced in testing the complainant's evidence in the sense of exposing inconsistencies or unreliability through cross examination. 106 Responding to these arguments, the Crown referred to his Honour's repeated use of the phrase "mount a challenge" (SU 17/18) and the difficulties delay created in respect of memory. Having given the redirections (SU 31), his Honour concluded with these words: (SU 31/32) "... They are some particular examples of the way in which the ability of the accused to mount a challenge to the case brought by the Crown has been detrimentally affected by the long delay in having these allegations brought to his attention."

Conclusion. 107 The Longman warning is not, as the Chief Justice remarked in R v WSP (supra), a statute. No particular form of words is required. There are obvious advantages, nonetheless, in adopting the words used by the High Court, since it is important that the message not be diluted. Having said that, there are also obvious advantages, with a lay jury, in elaboration and illustration of the essential message. What, then, is the essential message in Longman? There are three elements (cf R v Stewart (2001) 52 NSWLR 301, per Howie J, at 317ff). · First, an explanation as to why there is danger. · Secondly, a warning concerning the danger. · Thirdly, advice as to how the danger may be avoided. 108 Let me elaborate by dealing with each aspect. In respect of the first, it is, no doubt, obvious to a lawyer, used to preparing cases and cross examining witnesses, that delay, and especially significant delay between the incident and notice of the allegation, creates difficulties. Hayne J in Crampton v The Queen (supra), said this in the context of the Longman warning: (at 211, para 140) "The critical feature of the circumstances I have described is that many years had elapsed between the time of the alleged conduct and the accused being put on notice of the allegation." 109 In JJB v R (supra), the following was said: "64. Once an accused is apprised of the case he has to meet, he can cast his mind back to the time of the alleged offence. Only then can he begin to assemble the forensic weapons that may demonstrate that the complainant's account is untrustworthy or unreliable. Obviously, the longer the interval, the greater the prejudice. Was he there? Did he have the opportunity to commit the offence? Who else was there? Having regard to the circumstances, as he remembers them, what aspects of the complainant's account are wrong or unreliable? How can he demonstrate that inaccuracy?" 110 The High Court, in Longman v The Queen, was concerned that the difficulties which an accused faces in effectively cross examining, and calling evidence in rebuttal, may not be obvious to a lay jury. The jury therefore needs to be told of that difficulty. That difficulty creates the need for the warning. 111 The second aspect is the warning itself. Because of the difficulty in exposing unreliability, either through cross examination or calling witnesses in rebuttal after such a long time, the jury must be warned. It must be told of the danger of injustice. The High Court in Longman's case used the words "dangerous to convict". It would be enough, no doubt, to tell the jury that there was the danger of a miscarriage of justice. But something must be said that unmistakably puts the jury on its guard. 112 One then comes to the third aspect, that is, the advice given to the jury as to the way in which that danger may be avoided. The High Court in Longman said it may be avoided by scrutinising the evidence of the complainant with great care, conscious of the danger, and paying heed to the warning. Only then, where the jury is nonetheless convinced that the evidence is both truthful and reliable, should it find the accused guilty of the offence. 113 Here, his Honour told the jury of the difficulties which delay occasioned to the accused in presenting a case in rebuttal. He mentioned a forensic examination of the complainant and an alibi. His redirection at the end of the summing up provided illustrations of the disadvantage he laboured under by reason of delay. However, the summing up did not deal, in terms, with the companion disadvantage, which may be more formidable, in challenging the complainant's account in cross examination. The method of cross examination is an examination of detail. With the passage of time detail is lost. The complainant, and those who might contradict her, are likely to have forgotten the surrounding detail as time passes. Where the complainant's account is stripped of detail, such that when asked about a particular aspect she is only able to say "I don't remember", it is difficult to cross examine and thereby expose unreliability. 114 His Honour repeatedly used the phrase "mount a challenge" (cf Smart AJ in R v GS (supra)). On balance, I accept that such a phrase would have been understood by the jury as including cross examination of the complainant. It is reasonable to conclude that his Honour fulfilled the first requirement, that is, he alerted the jury to the reasons for the warning. 115 Having laid the ground, however, I do not believe that his Honour then administered a warning. His instructions were in the nature of a comment. The fundamental need for caution, lest there be a miscarriage of justice, was not conveyed. In this respect his Honour's refusal to include the words "dangerous to convict" in circumstances where counts 1 to 9 were not corroborated, was puzzling. The phrase was used in Longman. It was endorsed by the majority in Crampton v The Queen (supra) (Gaudron, Gummow and Callinan JJ at p181, para 45; and Hayne J p211/2 para 142). It was reaffirmed by the majority in Doggett v The Queen (supra) (p356, para 52). His Honour should have used the formulation of the High Court, including this phrase, or words as strong, especially since Counsel had specifically asked that he do so. His Honour may perhaps, in framing his directions, have differentiated between counts 1 to 9 and count 10 (cf Gleeson CJ in Doggett v The Queen (supra)). 116 Turning then to the third requirement, the advice concerning the way in which the danger may be avoided, the jury was told of the need to scrutinise the evidence of the complainant and her mother with great care. This aspect was satisfied. 117 This Court, as demonstrated by R v WSP (supra), has taken a rather strict view concerning the instructions to be given to the jury in conformity with Longman v The Queen. The directions given by the trial Judge in R v WSP were unquestionably a warning and were expressed in much stronger terms than the directions given by his Honour in this trial. Yet the Court, by majority, held that they were not adequate. By that measure, and indeed by the measure of the dissenting opinion in WSP of the Chief Justice, the Longman directions in this trial were not adequate. In the context of significant delay and allegations (at least in respect of counts 1 to 5) of a very young girl, I believe that error has been established.

The Proviso. 118 Neither the Crown nor the appellant raised the proviso to s6(1) of the Criminal Appeal Act 1912. Under the proviso, of course, even though there be error, the Court may nonetheless dismiss an appeal where the Crown can establish "no substantial miscarriage of justice". 119 The proviso was analysed in some depth by McHugh J in Festa v The Queen (2001) 208 CLR 593 at 627-633. The statement of principle which has been regarded as authorative is to be found in the judgment of Fullagar J in Mraz v The Queen (1955) 93 CLR 493, where the following was said: (at 514) "It is very well established that the proviso to s6(1) does not mean that a convicted person ... must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried." 120 Fullagar J, as McHugh J pointed out, found support in various English authorities, including the following passage from the judgment of Channell J in R v Cohen and Bateman (1909) 2 Cr App R 197: (at 207/8) "Taking s4 with its proviso, the effect is that if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso. In that case the Crown have to shew that, on a right direction, the jury must have come to the same conclusion. A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words 'any other ground', so that the appeal should be allowed according as there is or is not a 'miscarriage of justice'. There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted, and therefore, as there is no power of this Court to grant a new trial, the conviction has to be quashed. If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso, notwithstanding that the verdict actually given by the jury may have been due to some extent to such an error of the judge, not being a wrong decision of a point of law." 121 In Festa v The Queen McHugh J said this: (at 631) "The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case. ..." 122 The proviso is only available where the error was not so fundamental that it went to the root of the proceedings, such that no proper trial has taken place (Quartermaine v The Queen (1980) 143 CLR 595; S v The Queen (1989) 168 CLR 266). 123 In Doggett v The Queen (supra), Kirby J, in his analysis of the issues, did not regard the failure to give a Longman warning as going to the root of the proceedings. His Honour said this: (at 384/5) "153. To reach the conclusion that no substantial miscarriage of justice has occurred, this Court has to be of opinion that the appellant had not lost a real chance of acquittal because of the failure of the trial judge to give the Longman warning. It has to reach an affirmative conclusion that the identified error was immaterial in the particular circumstances. Such a conclusion can be reached. In two recent appeals involving child sexual offences I have favoured application of the 'proviso', although on each occasion I was in a minority on the point. In R v Whittaker , the Court of Criminal Appeal of New South Wales observed, correctly in my opinion, that it was 'fair to say that there is a diminished inclination in recent times to invoke the proviso (even in otherwise very strong Crown cases) where misdirection has been shown upon an important ingredient of the law applicable to the trial.' The authority of this Court was cited in explanation of why this was so. This assessment of the recent approach to applications of the 'proviso' was recently approved in this Court by Callinan J. It accords with my own impression and also with my inclination. 154. That the prosecution's case was a strong one is not enough to outweigh the accused's entitlement to a trial in which necessary directions and warnings have been given to the jury. To displace this entitlement, an appellate court must reach the conclusion that, in effect, the conviction of the appellant was inevitable on the evidence. Is this the case here? If the appellant had confessed in the recorded telephone conversation to the specific crimes charged, a court might reach that conclusion, But he did not." (footnotes omitted) 124 His Honour ultimately came to the following conclusion: (at 386) "158. Conclusion: proviso inapplicable: Into the equation of the assessment of the evidence of the appellant and of the complainant, including as revealed in the telephone conversation, it was necessary to inject reference to the particular forensic considerations identified in Longman . Otherwise, the jury might have completely overlooked such considerations. Preferring the evidence of the complainant to that of the appellant was not sufficient to convict the appellant. Being convinced that the complainant's testimony was honest and had not been significantly dented by a lengthy cross-examination, was also insufficient. Before giving effect to such conclusions, the jury needed to take into account a warning based on particular considerations, derived from the law's experience. This they did not receive. Because it is impossible to determine 'the basis on which the jury founded their verdict', it is impossible to be satisfied that the absence of the warning in this case did not deprive the appellant of a chance of acquittal. 159. Lay people and some lawyers may have unbounded faith in the capacity of jury trial to yield an accurate and just result. Ordinarily it does. But after very long delays in complaint in cases of this kind there are particular dangers of miscarriage of justice. Juries should be warned of such dangers so that, in their deliberations, they take them into account. that is what Longman requires. In this case, a jury, warned of these dangers, might indeed still have convicted the appellant. The prosecution case against him was very strong, particularly because of the recorded telephone conversation. But conviction was not inevitable. The judicial warnings to the jury did not comply with the law established by Longman . The defect was not immaterial. The appellant therefore lost a real chance of acquittal. The 'proviso' does not apply." 125 Consideration was given to the application of the proviso somewhat earlier, in R v GPP (2001) 129 A Crim R 1, where there had been significant delay and an inadequate Longman warning. Heydon JA (as he then was) (Wood CJ at CL and Carruthers AJ agreeing) said this: (at 39) "The Crown contended that the proviso to s6(1) of the Criminal Appeal Act should be applied, that is, that the appeal should be dismissed on the ground that 'no substantial miscarriage of justice has actually occurred'. The application of the proviso depends on the error not being one which is so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and on the conviction being 'inevitable', so that the appellant can be said not to have lost a chance which was fairly open to him to have been acquitted; see Glennon (1994) 179 CLR 1 at 8-10; 70 A Crim R 459 at 463-465. This error is not fundamental in the sense just described. Attention must therefore be directed to the strength of the Crown case." 126 Having set out the competing submissions of the Crown and the appellant, Heydon JA said this: (at 39) "... But once it is assumed, as it must be, that the prejudicial effect of delay on the forensic position of the appellant was not obvious to the jury, unless it had been explained to it, the warning which was not given could have caused them to experience a reasonable doubt. Hence the proviso cannot be applied." 127 Should the proviso be applied in the context of this trial? A distinction should be made between counts 1 to 7 and count 10. In respect of counts 1 to 7, there was no corroboration. The delay (especially in respect of counts 1 to 5) was significant and the allegations concerned the complainant when she was very young. Although the evidence of the complainant was convincing and aspects were confirmed by other evidence, it cannot be said that the appellant would inevitably have been convicted had the jury been properly warned as required by Longman. The proviso, therefore, is not available in respect of counts 1 to 7. 128 However, the position in respect of count 10 is, I believe, quite different. Count 10 involved an allegation of intercourse in 1986, when the complainant was 11 years old. The delay before complaint was 14 years (2000). The accused (the appellant) was first told of the allegations in 2003, a delay of 17 years. By any measure, the delay was significant. However, the complainant's account was corroborated by her mother, who claimed to have witnessed the appellant having intercourse with her daughter. The sequence which followed was consistent with the marital disruption that you might expect following that episode. The appellant and his wife separated within three months. Although they later came back together for a period, the marriage did not last. Neither the complainant's account, nor that of her mother, was dented by cross examination. But, more than that, there was, I believe, significant confirmation of the complainant's account of abuse by the appellant. The Crown case, in my view, was overwhelming. 129 The conviction in respect of count 10 followed an incomplete, but almost complete, Longman warning. Assuming a full Longman warning, the conviction of the applicant in respect of that count was, in my view, inevitable. The appellant did not lose a chance fairly open to him of being acquitted. Accordingly I am persuaded that there was, in respect of count 10, no miscarriage of justice. 130 Moreover, I am persuaded beyond any doubt that the conduct, the subject of count 10, occurred in the context of other similar conduct involving the complainant, not the subject of any specific charge. It was not, in other words, an isolated act. It is not possible, however, to say how often or for how long such conduct had occurred. 131 There should, accordingly, be a new trial in respect of counts 1 to 7. The evidence in respect of count 10, although obviously not the fact of conviction, may be called at the new trial.

Sentence. 132 Here, there was no appeal against sentence. However, when fixing appropriate sentences in respect of the various counts, his Honour said this: (ROS 14) "Whilst it is always difficult to determine what sentencing practice was that long ago, from my own experience the one thing I can say is that accumulation was rare indeed. For those reasons I am of the view that concurrent sentences should be imposed. In relation to all but count 10 I am of the view that those sentences should be fixed terms of imprisonment which should reflect the objective seriousness and escalating conduct of the offender in debauching a young girl who should have been able to rely on him for protection, not the sort of abuse that he perpetrated upon her." 133 In view of the order I propose, it is appropriate that the appellant and the Crown should have an opportunity to make submissions in respect of the sentence on count 10.

Appeal allowed in respect of counts 1 to 7 inclusive.

In respect of counts 1 to 7, the convictions are quashed and the sentences set aside. There should be a new trial in respect of such counts.

In respect of count 10, the appeal is dismissed and the conviction confirmed.

The appellant and the Crown have leave to make further submissions in writing concerning sentence. The appellant should file and serve such submissions within 14 days and the Crown respond within a further 14 days. The submissions should indicate whether the parties seek to supplement their submissions by oral submissions. 135 HOEBEN J: I agree with Kirby J. **********

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.

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Cases Cited (21)