Grounds 2 and 3
120Section 165B of the Evidence Act provides as follows:
"165B Delay in prosecution
(1) This section applies in a criminal proceeding in which there is a jury.
(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.
(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.
(6) For the purposes of this section:
(a) delay includes delay between the alleged offence and its being reported, and
(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.
(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:
(a) the fact that any potential witnesses have died or are not able to be located,
(b) the fact that any potential evidence has been lost or is otherwise unavailable."
121This section was inserted into the Evidence Act in 2007 to commence from 1 January 2009. The proceedings commenced on the charging of the appellant on 31 December 2009. As such the provisions in the Evidence Act applied: R v TJ [2009] NSWCCA 257; (2009) 76 NSWLR 167 at [14].
122In Longman v The Queen supra, Brennan, Dawson and Toohey JJ stated (at 91) that it was necessary to give the following warning in the case of delay:
"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."
123In R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 Sully J, after reviewing Longman v The Queen supra and the cases which followed it, particularly Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343, summarised the requirement of a Longman warning in the following terms (at [95]):
"The approach of the majority Justices in both Crampton and Doggett seems to me to entail that a trial judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: 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."
(Emphasis in original).
124The other members of the Court agreed with this formulation (at [4] and [119]).
125Section 165B(4) of the Evidence Act prohibits the giving of such a warning. The reason for the insertion of the section was said to have been that such a direction was considered an encroachment on the fact-finding task of the jury and open to the risk of it being interpreted as a direction to acquit: Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth) at [226].
126The appellant argued that s 165B(4) of the Evidence Act did not apply to a judge alone trial and only prevented the Longman warning from being given to a jury. However, the question was whether s 133(3) of the Criminal Procedure Act as explained in Fleming v The Queen supra required the judge to give himself such a direction and be seen to have done so.
127In my opinion this question must be answered in the negative. Section 133(3) of the Criminal Procedure Act requires the judge to give to him or herself a warning if one is required to be given to a jury by an Act or law. In the present case rather than requiring such a warning, the Act in fact prohibited it.
128The appellant also submitted that s 165B(4) of the Evidence Act was only engaged in the event an application for a direction was made under s 165B(2). He submitted that in the present case an application for a Longman warning was not made under s 165B(2) and the effect of s 9(1) of the Evidence Act was to require the common law direction to be given.
129I do not agree. Section 9(1) applies when the Evidence Act does not provide, either expressly or by necessary implication, to the contrary. In the present case s 165B(4) has expressly prohibited a Longman warning.
130However, as an application for such a direction was made, it would seem to me the effect of s 165B(2) of the Evidence Act was to oblige the judge, if he was satisfied the appellant suffered a significant forensic disadvantage because of the consequences of delay, to inform himself of the nature of the disadvantage and the need to take it into account when considering the evidence.
131The trial judge, in my opinion, did this. I have set out the warnings above (par [57]). The trial judge recognised that the delay had resulted in a significant forensic disadvantage to the appellant in relation to the calling of evidence, his own recollection and his inability to find witnesses.
132His Honour in those circumstances did not err in failing to give a Longman warning.
133Nor do I think that the trial judge erred in failing to give himself a Murray direction.
134The judge gave himself such a direction (see par [57] above). He pointed to the fact that there was no independent objective evidence and that the complainant was the only Crown witness capable of giving direct evidence about the events which occurred. He directed himself that he must scrutinise the complainant's evidence on each charge very carefully before determining whether he should accept it. He repeated that direction towards the conclusion of his judgment.
135In these circumstances it does not seem to me that the ground of appeal that the judge failed to give himself a Murray direction has been made out.
136The next question is whether the judge's reasoning disclosed that he gave effect to the direction. In that regard it must be remembered that consistent with Fleming v The Queen supra it was necessary for his judgment to expose his process of reasoning. A mere incantation of the warnings and directions without them being taken into account is insufficient: Fleming v The Queen at [33] (see also Pettitt v Dunkley (1971) 1 NSWLR 376 at 381-382, 385 and 388 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis v Dudley) at 257-258).
137The trial judge delivered judgment the same day the complainant finished giving her evidence. His task involved consideration of whether, after scrutinising the evidence of the complainant very carefully and having regard to the other evidence and the inconsistencies in the complainant's evidence, he could accept the complainant as reliable on the critical issues, beyond reasonable doubt, taking into account the forensic disadvantage in which the appellant was placed.
138The trial judge accurately summarised the complainant's evidence in chief. He considered the 30 September 1992 diary entry, whilst not corroborative of the 30 September 1992 events, supportive of the complainant's evidence having previously noted the submission that the diary entry was ambiguous and did not refer to sexual intercourse.
139The trial judge referred to CW's evidence of the complaints made to her in 1992 that "[W] tried to do it again" or "[W] had done it again" in the context of a complaint to her in 1991 that [W] had been "fingering her". He noted the evidence of CW that at the meeting with JS in 1994 the complainant made no reference to the sexual assault.
140The trial judge also noted the evidence of the complainant's mother that the appellant did not move out of her bedroom until 1994.
141The trial judge also referred to a number of matters of note that emerged from cross-examination. He referred to the fact the complainant did not tell her friend Belinda of the incident of 30 September 1992 when she went to her home. He noted there was no reference in the diary to speaking to JS in August 1991 about the sexual assault in the context of the fact that she told the police in the statement made by her to them that there was such an entry. He also referred to the fact that there was no reference to the October incident in the diary.
142After referring to these matters and stating that he had considered what the appellant's counsel had to say about her reliability, the trial judge expressed satisfaction on this question.
143The appellant stated that the evidence of CW fell well short of corroboration. The trial judge did not suggest it was corroborative. He accurately summarised the complaints made to CW, to which I have referred above. So much was conceded by senior counsel for the appellant.
144Contrary to the appellant's submissions, I do not believe it was necessary to refer to the appellant's age or the fact there were some entries in the diary demonstrating feelings of guilt and anger towards the appellant. The obligation on the judge was to adequately expose his reasons in a case where, as he recognised, the evidence of the complainant needed to be scrutinised with great care. The relevant standard was set out in Pettitt v Dunkley supra in the following terms:
" ... where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law."
145This passage was approved by the High Court in Fleming v The Queen supra at [22]. However, the need to provide reasons is not only to enable a party to exercise appeal rights but as stated in Fleming v The Queen in the same paragraph, to enable justice to be seen to be done.
146The importance of the giving of reasons for a judicial decision was summarised by McHugh JA in Soulemezis v Dudley in the following terms:
"The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment 'is not only to do but to seem to do justice': The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability."
(The third reason given by his Honour as to the precedential value for future cases, is not relevant in this case.)
147However, as McHugh JA pointed out in Soulemezis v Dudley (at 280-281), the obligation does not require lengthy or elaborate reasons, although it is necessary that the essential ground or grounds on which the decision was based should be articulated and in many cases the reasons for preferring one conclusion over another should be given. However, where the resolution depends entirely on credibility, he stated it was probably enough that the judge simply finds one way over another: see also CJ v Regina [2012] NSWCCA 258 at [91], Alchin v Daley [2009] NSWCA 418 at [35], R v Keyte [2000] SASC 382; (2000) 78 SASR 68 at [56] and R v Power [2003] SASC 77; (2003) 141 A Crim R 203 at [52]-[57].
148In the present case the trial judge gave himself the requisite warnings, dealt with the evidence of the complainant, the evidence of the other witnesses, some of the inconsistencies in the complainant's evidence and stated that after taking the appellant's submissions into account, he accepted the complainant as reliable as to the occurrence of the events the subject of the charges on which the appellant was convicted. In these circumstances, in my opinion, he fulfilled his obligations under s 133(2) of the Criminal Procedure Act to expose his reasoning principles.
149In these circumstances Grounds 2 and 3 of the grounds of appeal have not been made out.