97 The requirements of the Longman direction were next considered by the High Court in Doggett. That case was concerned with a trial in which the trial Judge told the jury that they should scrutinise the complainant's evidence very carefully, but did not warn the jury of the danger, given the delay between the alleged offences and the complaint, of convicting on the complainant's evidence. The judgments in Doggett consistently use the term "a Longman warning", but do not hold that the direction must include the word "warning".
98 The principles stated by Sully J in BWT were distilled from his Honour's careful survey of the decisions of the High Court in Longman, Crampton and Doggett. As noted by the Chief Judge in the present case, they include the following proposition at [95] (subparagraph [3]):
"It seems to me to be a reasonable inference from what their Honours have said that all the current Justices of the High Court, excepting the Chief Justice and McHugh J, take the basic position that in any criminal trial a feature of which is substantial delay in complaint of alleged sexual offences then charged against the particular accused, a Longman direction must be given. Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Doggett :
(a) The direction must be cast in the form of a warning . Any form of expression which is thought to have the character of a comment , or even of a caution will not sufficiently comply with what is required by law.
It seems to me to follow that any trial Judge who is framing a Longman direction ought to ensure that the direction is framed, in terms, as a warning ."
99 I do not read that passage as a statement of principle that a Longman direction must be preceded by the word "warn" or "warning". Those are not the only words or forms of expression by which the import of a warning is capable of being conveyed.
100 The distinction drawn by Sully J is between a direction framed "in terms" as a warning and a form of expression having the character of a comment or a caution. His Honour's reference to a form of expression having the character of a "caution" must, in my view, be understood in the context of the terms of the direction given that description in the joint judgment in Crampton.
101 I do not think that the judgment of Sully J in BWT holds that a direction may only be "framed, in terms, as a warning" by use of the word "warn" or "warning". As noted in the judgment of the Chief Judge, no set form of words is required in order to give an adequate Longman direction, and that has been acknowledged by Sully J himself: see R v Kesisyan [2003] NSWCCA 259 at [20]. His Honour there emphasised (at [21]) that the essential task is to ensure that the substance of what is conveyed accords with the substance of the principles established by the decision in BWT.
102 The essence of the distinction between a direction having the character of comment or a caution and a direction framed as a warning lies in the requirement for a warning to identify and explain the risk or danger inherent in the trial as one the recognition of which derives from the Court's specialised or accumulated experience, as opposed to merely advising the jury to "take care" or "use caution" in a particular aspect of the case: see for example Longman at 91.2 (joint judgment) and at 95.9 to 96.1 per Deane J; Crampton at [126] per Kirby J; Doggett at [85] per McHugh J.
103 I accept that the principles stated by Sully J in BWT have been applied in a number of decisions of this Court, including those referred to by the Chief Judge. However, none of those cases, in my view, is authority for the proposition that a Longman direction must use the word "warn" or "warning" in order to satisfy the requirement expressed by Sully J that it be "framed, in terms, as a warning".
104 BWT was first applied in this Court in R v SJB [2002] NSWCCA 163 (it was cited with approval two weeks earlier in R v Channell [2002] NSWCCA 187 but the judgment in that case does not disclose what the deficiency in the impugned direction was). In SJB, the Court's decision turned on the trial Judge's failure to incorporate, in his direction, the proposition that it would be "dangerous to convict": [2002] NSWCCA 163; (2002) A Crim R 572 at [53] per Levine J, Sheller JA and Simpson J agreeing.
105 Similarly, the decision of this Court in R v GEA [2002] NSWCCA 222 turned on the absence of any warning of the relevant danger. The trial Judge had introduced the direction with the words, "There is one other warning I have got to give you…" The Judge proceeded to note the period of delay between the alleged events and the trial and pointed to the forensic difficulties caused by that delay. His Honour told the jury that they should carefully consider those factors when assessing the evidence and the witnesses and the weight to be given to the evidence of the witnesses.
106 In upholding the appeal against conviction, Hidden J said at [10] (Heydon JA and Blanche AJ agreeing):
"What does concern me, however, is that at no stage did his Honour warn the jury of the danger of convicting arising from the delay and the consequent need for careful scrutiny of the complainant's evidence. Nor did his Honour refer to the effect upon the reliability of the complainant's evidence of the delay, having regard to his relative youth."
107 The Court's approach in that case looked to the sufficiency of the direction according to its substance, notwithstanding the terms in which it had been introduced by the trial Judge; see also DBG [2002] NSWCCA 328 especially at [30] and [39] per Howie J; Meagher JA and Simpson J agreeing.
108 In the decision in WRC (cited by the Chief Judge), Kirby J concluded that the direction given by the trial Judge was "not framed as a warning": at [146]. Hodgson JA agreed that the directions given were inadequate: at [102]. The relevant direction is set out at [127] of the judgment. The trial Judge said:
"There is also one other matter that I bring to your attention, in which the law requires me to bring to your attention and it is a matter that has been also referred to you by counsel for the accused."
109 The Judge proceeded to tell the jury that because of the delay between the time when the events were alleged to have occurred and the time the allegations were brought to police, "the accused has necessarily had difficulties in meeting those allegations". His Honour identified some of the forensic difficulties resulting from the delay and concluded:
"I am just drawing your attention to these issues which have arisen in this trial, and the fact that you, the jury, are asked to reflect on and consider findings in relation to disputed issues that deal with matters that are some twenty-two or twenty-three years in the past".
110 The conclusion that those remarks were not framed as a warning was, with respect, plainly correct.
111 Kesisyan was a case in which an appeal against conviction was dismissed without extensive discussion of the particular grounds on which the Longman direction was sought to be impugned. The main judgment was given by Meagher JA, who stated at [8]:
"No specific words are required in a Longman direction and as long as the essential purpose of the direction is performed, that is all the judge needs to do."
112 Sully J agreed, "in the sense that BWT need not be understood as laying down an exact form of words" but emphasised that it is essential for trial Judges to ensure that the substance of what is conveyed accords with the substance of the principles stated in BWT (at [20] to [21]).
113 R v GS [2003] NSWCCA 73 was a decision of this Court which turned principally on the fact that the Judge had told the jury that they should ask themselves whether the accused had lost a chance of obtaining a fair trial by reason of the delay. The vice of that formulation was compounded when his Honour stated that they should ask themselves whether the accused had been put at a disadvantage by the delay or whether it was "difficult for him now to prove his innocence": at [8].
114 Buddin J expressed the view that the warning should not have been formulated as a question for the jury to ask themselves and concluded that the direction represented a departure from the requirements of Longman (at [28], Smart AJ and Santow JA agreeing).
115 The Chief Judge has emphasised the statement of Kirby J in JJB [2006] NSWCCA 126 at [42] that "there must be a warning, not simply a comment or a caution". I think Kirby J was, however, simply paraphrasing the relevant part of the summary of the principles stated by Sully J in BWT. It was not contended in that case that the direction had not been framed as a warning.
116 WSP [2005] NSWCCA 427 was heard by Spigelman CJ and Sully and RS Hulme JJ. In that case, the trial Judge had identified the gap of 13 years between the alleged offences and the time when the accused was formally charged. The Judge said, "In those circumstances it is most important that I give you these warnings" (at [175]). Her Honour proceeded to emphasise the importance of appreciating the effects of the delay on the ability of the accused to defend himself by testing the evidence. She told the jury that they could only convict the accused if they were satisfied beyond reasonable doubt about the truth and reliability of the complainant's evidence.
117 The Judge did not, however, include a formulation of the kind "it would be dangerous to convict". Hulme J concluded that, in the circumstances of that case, the jury should have been instructed in that form: at [181]. Hulme J also thought that the warning lacked the strength to conform to the last requirement identified in the summary of principles stated by Sully J in BWT, namely, that "the form of the warning must be such as bears unmistakably the imprint of the court's own authority": at [182]-[183].
118 Sully J also concluded that the Longman direction as given was insufficient: at [73]. Spigelman CJ dissented. His Honour stated (at [3]) that the analysis in BWT had not been adopted in other cases, but concluded in any event that the direction under consideration met its requirements, expressing the view that to say the jury "can only convict if" is more forceful than to say it would be "dangerous to convict unless". His Honour reiterated that it is "wrong to treat any judicial statement, even in a judgment of the High Court, as the equivalent of a statutory formula" (at [13]). The judgment of Sully J included a firm rebuttal (with his Honour's customary grace) of the proposition that BWT had not been adopted in other cases (at [77] to [92]).
119 DRE [2006] NSWCCA 280 was decided the following year. The direction given by the trial Judge in that case is set out at [110] of the decision. The trial Judge had said to the jury that the accused had lost certain opportunities to challenge the complainant's evidence. After giving some examples of how these opportunities may have been lost, his Honour continued (my emphasis):
"I do not think there is any need for me to take you through them in extenso , but I am required to remind you of these disadvantages which the accused has suffered because of the delay, these lost opportunities and tell you that it would be unsafe to convict in those circumstances where there has been delay, on the unsupported evidence of the complainant … unless you are satisfied, having examined that evidence in detail with particular care and having borne this warning in mind , unless you were satisfied beyond reasonable doubt that he was telling you the truth, these things did happen in the way in which he said they happened. So that is delay.
I do not think there is any more in the way of cautions that I am required to - oh, there is one other aspect of delay, I suppose, and that is that if there is a delay between the occurrence of an alleged assault and the reporting of that assault, then that delay is consistent with there not having been an assault to begin with. In other words, if nothing happens, there is nothing to complain about."
120 The appellant's arguments on appeal (summarised by Simpson J at [68]) included complaint as to the absence of any express "warning" and the use, instead, of the phrase "but I am required to remind you of these disadvantages". Complaint was also made as to the use of the word "cautions" which it was contended was inadequate to meet the requirement that a "warning" be given.
121 Spigelman CJ stated (my emphasis):
"The second matter on which reliance was placed was the proposition that at no stage did his Honour specifically "warn" the jury of the real disadvantages that the accused had suffered by reason of the delay. In this Court, in contrast with the position in Western Australia, a strict approach has been taken to the requirement that what must be conveyed to the jury is a "warning" in terms . (See R v BWT at [95]. The other case law is referred to in R v WSP [2005] NSWCCA 427 at [3] and [77]-[85])."
122 His Honour's statement that what must be conveyed is a "warning" in terms suggests acceptance of the proposition that the word "warning" must be used. I note that, in BWT, Sully J had not used inverted commas around the word "warning". His Honour said that the trial Judge ought to ensure that the direction is framed, in terms, as a warning.
123 I accept that Spigelman CJ appears (at [18] to [22] of the judgment) to assume as a premise that the decision in BWT does require the trial Judge to use the word "warning" in a Longman direction. Whether his Honour accepted that premise is less clear (particularly having regard to his dissenting judgment in WSP). The relevant remarks in DRE were made in the context that his Honour would have refused leave to argue the point under rule 4, and would in any event have rejected it because the trial Judge had used the word "warning", albeit not at the outset of the direction.
124 More significantly, however, his Honour then stated:
"Shortly after BWT , in R v Kesisyan [2003] NSWCCA 259, this Court, with the express agreement of Sully J, held that no specific words are required in a Longman warning. (See at [8], [20]-[21], [23].)
The issue in this case is similar to that which arose in WSP supra. The basic structure of the Longman warning is "dangerous to convict unless …". In WSP the trial judge had used the formulation "you could only convict the accused if …". I was of the opinion that the requirements of the Longman warning were satisfied. However, I was in dissent on this matter."