WILSON -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 161 (15 November 2023)

(a) it was necessary to guard against a miscarriage of justice by directing the jury to have regard to the forensic disadvantage suffered by the Appellant as a result of the delay between the alleged offence and trial;

(b) the primary judge directed the jury to take into account the forensic disadvantage suffered by the Appellant as a result of, relevantly, evidence which was unavailable by the time of trial, including:

(i) a witness 'Luke';

(ii) a vacuum pipe; and

(iii) the separated tip of a condom;

(c) however, the primary judge also directed the jury not to speculate as to the evidence that was not before them, and in the course of doing so specifically directed the jury:

(i) not to speculate about what evidence 'Luke' may have been able to give; and

(ii) not to speculate as to whether the separated tip of the condom may have been cut, as opposed to torn or otherwise damaged during the course of the incident, and said that there was no evidence that the condom was cut;

(d) the primary judge did not give the jury any explanation as to how to reconcile the directions referred to at paragraphs (b) and (c) above;

(e) the impact of that failure was to rob the direction concerning the forensic disadvantage suffered by the Appellant as a result of the delay between the alleged offence and trial of all meaning and effect; and

(f) in all the circumstances and when considered as a whole, the directions to the jury failed to adequately warn the jury of the risk of a miscarriage of justice arising from the forensic disadvantage suffered by the Appellant as a result of the delay.

1. By this ground of appeal, the appellant contends, in effect, that an orthodox direction that the jury should not speculate about matters not the subject of any evidence at the appellant's trial undermined or detracted from another direction, also given in orthodox terms, which warned the jury about the risk of a miscarriage of justice arising from forensic disadvantages suffered by the appellant because of the delay in prosecution.
2. To understand the ground of appeal, and the issues that it raises, we will briefly summarise the parties' respective cases at trial, and then set out the relevant parts of the trial judge's directions. We will then deal with the appellant's contentions in the context of explaining why we are not satisfied that the appellant has established that the trial judge's directions occasioned a miscarriage of justice.

1. The appellant was charged with two counts of aggravated sexual penetration without consent, contrary to s 326 of the Code. The prosecution case was that the appellant sexually penetrated the complainant's mouth with his penis, and that he then sexually penetrated her vagina with his penis, and that both of those acts took place without the complainant's consent. The two offences were alleged to have been committed in a circumstance of aggravation, namely, that immediately before commission of the alleged offences the appellant was armed with an offensive weapon, namely a vacuum cleaner pipe.
2. As the appellant had admitted to police that he did sexually penetrate the complainant's mouth with his penis, the jury's verdicts indicate that they were not satisfied beyond reasonable doubt that this occurred without the complainant's consent. The jury's verdicts also demonstrate that while at least 10 of them were satisfied that the prosecution had proved that the appellant had sexually penetrated the complainant's vagina with his penis, and that this occurred without her consent, they were not satisfied that it had occurred when the appellant was armed with an offensive weapon. This explains why a judgment of conviction was entered for the alternative offence of sexual penetration without consent, contrary to s 325 of the Code.
3. The prosecution alleged that on or about 3 February 2001, the complainant, who at the time was about 20 years of age and a sex worker, was asleep in bed at her unit in Victoria Park when she heard someone knocking on her front door. When she answered the door, she saw a person she knew as Luke, who lived in the same unit complex. With Luke was the appellant, whom the complainant had not met before. Luke and the appellant told the complainant that they had some cannabis that they wanted to share with her and so she let them into her unit. All three of them then sat down at the complainant's kitchen table and shared the cannabis.
4. After a while, both Luke and the appellant began to touch the complainant in a sexually suggestive way, but the complainant told them that she had a boyfriend and that she was not interested. At some later point, Luke left the complainant's unit, leaving the appellant and the complainant alone together. The appellant then continued to try to touch the complainant in a sexual way, before matters escalated and the appellant started to behave in a threatening manner. At one point, the complainant picked up a telephone to call the police but the appellant grabbed it from her, slammed it down on the table and then pinned her up against a wall.
5. The appellant told the complainant that he wanted to see her strip and said that he would leave if she did that for him. The complainant unwillingly complied, as she was scared and just wanted him to leave. While the complainant stripped for the appellant, he kept trying to touch her, however the complainant said that she did not want him to do that. She also refused to touch the appellant.
6. The prosecution alleged that the appellant did not accept the complainant's refusals to comply with his wishes. It was alleged that he picked up a vacuum cleaner pipe and held it in a threatening way, telling the complainant words to the effect that they could do it 'the easy way or the hard way'. When the appellant then told the complainant to suck his penis, she complied, feeling threatened. However, before the complainant sucked the appellant's penis, she first had him wear a condom.
7. At some point in time, the appellant told the complainant that he wanted to have sexual intercourse with her. When the complainant said 'no', the appellant grabbed her by the forearms, got on top of her and then penetrated her vagina with his penis while he was still wearing the condom. After the appellant ejaculated, he got off the complainant, removed the condom from his penis, and left the complainant's unit. However, he left the condom behind. The complainant then telephoned the police.
8. The police arrived at the complainant's unit early on the morning of 4 February 2001. Several items were seized, including the condom, and some photographs were taken. The complainant was taken to the Sexual Assault Resource Centre, where she was examined by a Dr Phillips, who took several samples from her. While examining the complainant, Dr Phillips found a small piece of synthetic material that resembled a condom tip in the complainant's high vagina. Dr Phillips gave evidence that this was an 'unusual finding'.[1] Dr Phillips also noted that the complainant had some abrasions on parts of her body.
9. Samples collected by Dr Phillips from the complainant's vagina were forensically examined and spermatozoa were observed under a microscope. Ultimately, DNA profiles were recovered from a high vaginal smear that were consistent with some of the DNA in the smear having come from the appellant. The condom seized from the complainant's unit was also forensically analysed, but no DNA profiles of relevance were identified. However, when the condom was examined, it was noted that its tip was missing.
10. The appellant was first interviewed by police on 12 March 2001. In that interview, the appellant admitted that he had gone to the complainant's unit, and that they smoked cannabis. He also admitted that the complainant had performed oral sex on him, but he said that this happened with her consent. He said that he left her unit after she had performed oral sex on him, and he denied that he had sexually penetrated her vagina with his penis at any time.
11. Although the complainant made an immediate complaint to police, she withdrew her complaint in November 2001 because, as she explained in her evidence, the police had told her that she 'had no leg to stand on' because she was a sex worker.[2] She also said that she had been having nightmares and that she just wanted to get some sleep.
12. Although the evidence adduced at the appellant's trial was somewhat unclear, it appears as though the police carried out a review or reviews of the complainant's allegations in 2008 and 2009,[3] after the complainant had requested that the matter be reopened. While conducting that review, the investigating officer was unable to locate the piece of synthetic material found by Dr Phillips in the complainant's high vagina, although the condom itself had been preserved. The investigating officer confirmed that the broken edges of the condom were not forensically examined while she was dealing with the matter, and she gave evidence that she was unsure what had happened to the piece of synthetic material. According to her evidence, it appeared as though the separated tip of condom may have been destroyed by the police. During the review, the investigating officer also contacted Luke. However, she was not successful in obtaining a witness statement from him at that time.
13. It appears the complainant again withdrew her complaint in 2008. However, a further police review was carried out into the complainant's allegations in 2020 and 2021. The officer in charge of that review gave evidence that in 2020 police still had possession of the condom, but that the piece of synthetic material purported to be the tip of the condom had either been misplaced or destroyed. She also gave evidence that the original investigating officer did speak with Luke in 2001, but that no witness statement had been taken from him at that time. There was no evidence to explain why no such statement was obtained. However, the same officer gave evidence that she had contacted Luke during her own investigation in 2021, and that he had '[v]ery vividly ... declined to provide a statement'.[4]
14. The appellant was again interviewed on 10 November 2020. The quality of the audio recording of that interview was very poor, but at his trial the appellant made several formal admissions which dispensed with the need to adduce evidence of the interview itself. Those admissions were:

Paul Alexander Wilson admits that on or about 2 February 2001 at East Victoria Park, [the complainant] engaged in fellatio on me.

On 10 November 2020 I was interviewed by police about the charges on this indictment.

During the course of the 2020 interview I told the police the following:

I could not recall the account I provided to police in 2001;

I could not recall the incident itself;

I can't remember because it was from a number of years ago and I have since suffered a brain injury that affects my memory;

The brain injury was 10 - 12 years ago;

I do remember the allegations;

I recall going to the Cannington Police Station at the time, possibly with my father;

I did not have sex with [the complainant];

I remember Luke and the block of flats he lived in; and

I remember having contact with someone's neighbour.

1. The State argued that the jury should be satisfied beyond reasonable doubt, based on the complainant's evidence, that the appellant was guilty of both offences. In his closing address, the prosecutor argued that despite 21‑year delay since the alleged commission of the offences, the jury should find that the complainant was honest and reliable when she gave evidence that the appellant had sexually penetrated her, without her consent, by putting his penis into her mouth and by then penetrating her vagina with his penis. He suggested that the issues for the jury to determine were, firstly, whether the act of penetrating the complainant's mouth occurred without her consent, and secondly, whether the appellant sexually penetrated the complainant's vagina with his penis. Importantly, in the context of the ground of appeal, the prosecutor submitted that the jury should not speculate about matters that could have been the subject of evidence but were not, including speculating about what people who did not give evidence might have said had they given evidence, and about what might have been the results of forensic examinations carried out on items that had been seized had those examinations been done.

1. The appellant did not give or adduce any evidence at his trial. He relied on the account that he gave to the police in March 2001, and the formal admissions that he had made at the trial. The appellant otherwise suggested that the prosecution had not proved that he was guilty of either of the offences charged to the required standard.
2. The appellant was just over 18 years of age on the date of the alleged offences. Based on what he told the police in March 2001, he had been out with his friend, Luke, on the evening of the alleged offences. When they returned to Luke's unit in Victoria Park the complainant invited them both to join her in her unit on the top floor. Once inside the complainant's unit, they smoked some cannabis. After a while, Luke said that he was going to leave and the appellant made moves to leave with him, however the complainant asked him to stay, telling him that he didn't need any money. The appellant knew the complainant was a sex worker and when she told him that he didn't need any money he understood that to be a reference to not requiring payment for sex. According to the appellant's case, the complainant then started to undress voluntarily, and without any prompting from him. The appellant's position was that the complainant then began to perform oral sex on him, but he stopped her so that he could put a condom onto his penis. After the complainant had performed oral sex on the appellant, she removed the condom from the appellant's penis and the appellant then left the unit. As the appellant went to leave, he felt a 'whoosh' sound behind him, and when he turned around, he saw the complainant holding something that he initially thought was a baseball bat, but could not identify.
3. In her opening address, counsel for the appellant spoke about the small piece of synthetic material that had been found in the complainant's vagina. She said that the DNA findings were not surprising given the appellant had used a condom when the complainant performed oral sex on him, and that part of a condom was retrieved from the complainant's high vagina. However, she flagged that there may be issues about how the condom came to be in two separate pieces and said that there would not be any evidence about any examination of the condom itself or of the piece that was retrieved from the complainant's high vagina.
4. In cross-examination, the appellant's counsel put several propositions to the complainant concerning the man who accompanied the appellant to the complainant's unit, Luke. It is not necessary to refer to all those propositions. It is enough to note that the appellant's counsel cross‑examined the complainant about the way she had interacted with Luke and the appellant on the night of the alleged offences before Luke eventually left her unit, and put a number of propositions to her that were inconsistent with the complainant's evidence about those matters.
5. The cross-examination of the complainant also included the following passage, which is of significance in the context of the ground of appeal:[5]

Would the condom that Paul Wilson gave to you to get rid of - you retrieved that condom from the rubbish bag, didn't you? --- I did.

And you cut the tip of the condom and inserted it into your high vagina using your fingers or a stick, didn't you? --- No, I did not. No.

Can the witness be shown exhibit 5.5, please - sorry, 5.7?

THE WITNESS: Thank you.

[DEFENCE COUNSEL]: Can that be put on the document camera as well, please?

The pink item on the corner of the table is the pink condom? --- Yes.

What is that purple stick above it? --- I don't know.

It's your house, [complainant]? --- It's 21 years ago, [defence counsel].

Was it one of those sticks that women get for inserting suppositories for things like thrush? --- No.

I'm putting to you that you put the tip of the condom into your high vagina either using your fingers or that stick? --- That's ridiculous. (emphasis added)

1. As can be seen from that exchange, the appellant's counsel suggested to the complainant that she had deliberately inserted the piece of synthetic material into her vagina where it was later found by Dr Phillips. The implication of the cross‑examination was that the complainant had falsely accused the appellant of sexually penetrating her vagina with his penis and had planted evidence supporting her story. Further, the cross‑examination suggested that not only could the finding of the synthetic material not be regarded as corroborative of the complainant's allegation, but it also demonstrated that the complainant was a dishonest witness.
2. In her closing address, defence counsel submitted that, for several reasons, the complainant was not honest or reliable, and that her evidence that she had been sexually penetrated without consent should not be accepted beyond reasonable doubt. Relevantly, defence counsel argued that the delay between the alleged commission of the offences and when the appellant was charged (and when the trial later commenced, in 2022), had prejudiced the appellant. In that regard, counsel referred to the fact that there was, as a consequence of the delay, a 'lack of key witnesses'[6] and a 'lack of forensic examination of the condom and the piece retrieved from the high vagina'.[7] Counsel also suggested that how the tip of the condom came to be in the complainant's high vagina was 'a big question and something for you to deliberate'.[8]

1. Before setting out the trial judge's directions that are the subject of the ground of appeal, it is first necessary to say something about the discussions that took place between counsel and his Honour immediately after counsel had addressed the jury. Of particular relevance is the following exchange between his Honour and the prosecutor:[9]

STEVENSON DCJ: It is important, particularly having regard to the issues in this trial, when the Longman direction will make it very plain to the jury that obviously there is evidence which is not available by reason of the delay, and in part, perhaps, by reason of the way the matter was investigated, that they fully understand that simply because a proposition is put, that it is not part of the evidence unless it is accepted or there is some other part of the evidence which would support that proposition.

[PROSECUTOR]: Yes, no difficulty with those examples.

STEVENSON DCJ: Equally, in the course of my directions, to the extent that there's been reference to the condom having been cut, there is again no evidence that the condom was in fact cut. The position remains, of course, that the condom is available for forensic testing by either party, even though the tip is no longer available, but there is no evidence, forensically, that the condom was in fact cut. So again, I mention that as a matter of fairness in case anyone wishes to be heard in relation to that proposition.

It appears not. (emphasis added)

1. It can be seen from this passage that the trial judge specifically alerted counsel to the fact that he intended to give the jury the warning contemplated by the plurality in Longman v The Queen.[10] He also made it clear that he was intending to direct the jury that a proposition put in cross‑examination is not evidence unless it is accepted by the witness, or where there is some other evidence to support that proposition. He specifically said that he would remind the jury that there was no evidence that the condom that was used when the appellant penetrated the complainant's mouth with his penis had been cut. His Honour also gave both counsel the opportunity to make submissions about what he proposed to say to the jury, and neither counsel took advantage of that opportunity.
2. Shortly after this discussion took place, his Honour then raised with counsel what he proposed to say in the context of what he described as a 'Longman direction'. In that regard, his Honour indicated that the direction needed to refer to the:

extent of the delay and the impact that that has had on memories but there are a number of other forensic disadvantages suffered in particular by [the appellant] by reason of the delay ... [including] the absence of some evidence, obviously the tip of the condom, the fact that statements were not obtained, even if witnesses had been prepared to make statements at the time.

The jury of course have heard the evidence that the police were able to contact Luke but that he was not prepared to provide a statement or cooperate with their investigation. And of course there are the other forensic matters, including the telephone which has been referred to, not having been fingerprinted or tested.[11]

1. The trial judge also indicated that he would refer to other matters regarding delay and forensic disadvantage, which are not relevant to the determination of the ground of appeal. The only submission made by defence counsel in response was that any direction about the fact that the condom itself was still available for examination should not suggest that the defence bore any onus of proof. In the context of that discussion the following exchange took place:[12]

[DEFENCE COUNSEL]: Now, in relation to what your Honour said about the condom, that it is available for the State or defence to examine, of course we - the defence don't have to prove anything and I don't want the jury to believe that because the condom is still available, we wanted to, we could have, and I accept that we could have tested it but we don't carry any burden of proof.

STEVENSON DCJ: I understand that and the jury will be told not to speculate about whether it was cut or torn or nicked because there is no evidence.

[DEFENCE COUNSEL]: There's no evidence except from Dr Maureen Phillips.

STEVENSON DCJ: So they'll be told not to speculate about that.

[DEFENCE COUNSEL]: Yes, except from Dr Maureen Phillips in her report and what I said to the jury was a direct quote of Dr Phillips' report.

STEVENSON DCJ: Yes.

[DEFENCE COUNSEL]: And your Honour pulled me up when I did ask one of the witnesses whether the condom was cut and you said there's no evidence that it was cut and that I should refrain from using the word 'cut' and I did.

STEVENSON DCJ: Yes, and - - -

[DEFENCE COUNSEL]: All I said today to the jury was that it's a matter for them to determine how the condom came to be in two pieces.

STEVENSON DCJ: But do you accept that in this trial, it's important that the jury be told that they should not speculate as to whether or not the condom was cut, because there is no evidence that it was cut? They've heard evidence from Dr Phillips that it may have separated by being nicked or torn, but there is no evidence that it was cut.

[DEFENCE COUNSEL]: Or that it was by its use by date. Yes, I agree with your Honour that the jury should not speculate and I did specifically tell them not to speculate, or that your Honour would direct them not to speculate. But what's important is that the State has not done any forensic testing of the condom, to ascertain its durability, its age and all that kind of things that is - - -

STEVENSON DCJ: Well, when did the State become aware that it would be left before the jury that the complainant cut the end off the condom?

[DEFENCE COUNSEL]: Well, it's not only the cut, your Honour, it is the durability and the age of the condom and - - -

STEVENSON DCJ: Well, I appreciate you're now distancing yourself from that proposition, but you left - you planted the seed.

[DEFENCE COUNSEL]: Well, I was entitled to cross-examine and your Honour pulled me up and I backed away from that.

STEVENSON DCJ: I understand. All right. (emphasis added)

1. As he had foreshadowed in his discussions with counsel, the trial judge ultimately directed the jury not to engage in speculation and to decide the case based only on the evidence that had been adduced in the trial. His Honour told the jury that they were required to judge the facts based on the evidence that they had seen and heard in court, including any exhibits, using their collective common sense and life experiences, and nothing else. In directing the jury not to engage in speculation, his Honour also referred to some specific matters, based on the issues that had been raised during the trial:[13]

Do not guess or speculate about matters that are not in evidence.

For example, in relation to Luke, you heard evidence from the investigating officer during the trial that when she spoke to him recently he declined to make a statement.

You also know from the evidence that he was spoken to at the relevant time in 2001 and you know that the police file does not contain any statement made by him at that time.

Do not speculate why and do not speculate about what Luke might have been able to say if he had given evidence in this trial.

Do not speculate whether he is in contact with the accused still, bearing in mind, of course, he was with the accused initially at the relevant time on 3 February 2001.

Equally, members of the jury, do not guess or speculate about whether the tip of the condom was cut off after the incident, as opposed to torn or damaged during the incident.

You must not speculate about this.

There is no evidence before you that the condom was cut.

It is a fact that a part of a condom was recovered from the complainant's vagina in the manner described by Dr Phillips.

But there is no forensic evidence and there's no other evidence that the condom was cut.

And that therefore that [sic] is the explanation for the location of part of the damaged condom in the high vagina of the complainant.

Members of the jury you must decide this case on the evidence that is before you and you must not, as I have told you, speculate about any evidence that isn't before you.

1. The trial judge also gave the jury a direction that is commonly referred to in a shorthand way as a Longman direction.[14] This direction alerted the jury to the forensic disadvantages suffered by the appellant because of the elapse of time between the date on which he was alleged to have committed the offences and the date on which charges were preferred (and the date on which his trial commenced), and instructed the jury that this meant that they needed to scrutinise the complainant's evidence with care. Because of the nature of the issue raised by the ground of appeal it is necessary to outline his Honour's directions about delay in some detail. It was, relevantly to the following effect:

(a) Even though the complainant made an immediate complaint, there has been a delay between when the incident occurred and the trial.[15]

(b) The human memory is fallible. The longer the delay, the more opportunity there is for error. It is a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. That can be so even if you are mistaken in your recollection.[16]

(c) The defence case was that the complainant fabricated her evidence (apart from the act itself that was the subject of count 1), possibly because she had no income and was behind in her rent or, in any event, possibly because she was looking to be paid for the oral sex the subject of count 1.[17]

(d) The passage of time means that naturally some details will be lost to the memory of all the witnesses, including the complainant and the accused, if he had given evidence.

(e) The long delay between when the alleged offences occurred and the trial has meant that the appellant has lost opportunities to test the complainant's account. That is so even though the appellant was made aware of the allegations against him within days.[18]

(f) It is harder for defence counsel to explore the truthfulness of an account in cross‑examination by means of pinning down fine details when a complainant or other witness is testifying about something which occurred many years ago.[19]

(g) Because of the long delay between the occurrence of the alleged offences and the commencement of the prosecution, the appellant had lost the opportunity to explore and perhaps bring forward matters of defence and to test the details of the evidence of the complainant.[20]

(h) Some relevant witnesses were no longer available by reason of being deceased, uncontactable or not cooperating.[21]

(i) In accordance with Dr Phillips' evidence, the piece of condom that Dr Phillips located has been lost and is no longer available for examination. The same is true, from the evidence of the complainant, that the piece of vacuum pipe and the complainant's telephone are no longer available. That creates a forensic disadvantage for the appellant, in that it is not possible for those items to be tested for fingerprints or tested forensically.[22]

(j) The appellant has, in the intervening period, suffered a brain injury that affects his memory.[23]

(k) Consequently, the delay has put the appellant at a forensic disadvantage in the trial, not merely a theoretical disadvantage but a real disadvantage.[24]

(l) The direction was given based on the experience of the courts of the difficulty that accused people have in cases such as this, where there has been a delay of years between an alleged event and the matter coming to trial, in circumstances where some of the evidence is no longer available and there has, in any event, been a long passage of time between the events and the trial impacting upon memory.[25]

(m) Because of this delay and the forensic disadvantages to the appellant, it is important for the jury to scrutinise the evidence of the complainant with special care, and to evaluate her evidence bearing in mind the judge's direction. It would be unsafe for the jury to convict the appellant on the evidence of the complainant alone, unless, having looked at the evidence carefully and having taken the matters the judge mentioned into account, the jury were satisfied beyond reasonable doubt as to the truth and accuracy of the complainant's evidence as to the essential elements of each alleged offence.[26]

1. At the conclusion of the trial judge's directions to the jury, very experienced counsel who appeared on behalf of the appellant at trial was asked by the trial judge whether she wished to raise any matters arising out of those directions. Trial counsel indicated that she did not have any issues to raise with his Honour. Specifically, trial counsel did not take issue with any aspect of his Honour's warnings against engaging in speculation or about his directions about the forensic disadvantages suffered by the appellant because of delay.

Consideration of the ground of appeal Appellant's submissions

1. The essence of the ground of appeal is that the judge's direction failed to adequately warn the jury of the risk of a miscarriage of justice arising from the forensic disadvantages suffered by the appellant from delay, for the following reasons. The judge's direction not to speculate specifically encompassed not speculating about what evidence Luke may have given and not speculating as to whether the separated tip of the condom may have been cut. The judge also told the jury that there was no evidence that the condom was cut.
2. Thus, the ground of appeal refers to the trial judge's directions not to speculate about two specific matters, namely, any evidence that Luke may have been able to give if he had been called to give evidence at the appellant's trial, and whether the tip of the condom that was found in the complainant's vagina had been cut from the rest of the condom. However, neither the written nor the oral submissions relied on by the appellant explain how the directions not to speculate about Luke impacted on the Longman direction. Instead, all the appellant's submissions were focused on the purported effect of the directions not to speculate about the tip of the condom.
3. We note that the unavailability of the vacuum cleaner pipe at the appellant's trial is also referred to in the ground of appeal. However, as the jury was not given any specific direction not to speculate about what the vacuum cleaner pipe might have revealed if it had been available to be examined, and the appellant does not suggest that any such direction relevantly undermined the trial judge's warning about the forensic disadvantage occasioned by delay, this aspect of the case may be put to one side. We also note that the appellant's counsel did not make any written or oral submissions about this topic.
4. Particular (e) of the ground of appeal suggests that the purported failure to reconcile the directions rendered the Longman direction devoid of 'all meaning and effect'. However, the appellant's written submissions in support of the ground of appeal are not as ambitious. The appellant's written submissions may be summarised as follows:

(1) The judge's direction as to the forensic disadvantage suffered by the appellant as a result of delay was inadequate because the judge's direction not to speculate, including by specific reference to what evidence Luke may have been able to give or what a forensic examination of the condom might have revealed, undermined and detracted from the Longman direction, thereby preventing it from adequately guarding against the relevant risk of a miscarriage of justice.[27]

(2) The judge referred to specific missing evidence in the course of the warning not to speculate about what the evidence might have been, and reiterated the direction not to speculate immediately after giving the Longman direction. These aspects of the direction gave rise to a danger that the jury would have understood that they could not turn their mind to the specific missing evidence or consider the subject matter it could have borne upon when taking account of the delay. At the least, the combination of directions created a risk of confusion in the jury as to how the appellant's forensic disadvantage could be taken into account.[28]

(3) The jury was given no assistance in identifying the 'fine line' between what is required by a Longman direction and what may amount to an impermissible speculation; nor was it given assistance in 'staying on the right side' of that line in having regard to the appellant's forensic disadvantage.[29]

1. In his oral submissions the appellant's counsel appeared to have a somewhat different focus. He argued that the trial judge was obliged to, but failed to, draw to the jury's attention the fact that the loss of an opportunity to examine the tip of the condom was a significant matter that was relevant to an assessment of the complainant's credibility generally, and which bore on evidence that was relied on as corroboration of the complainant's allegation that the appellant had sexually penetrated her vagina with his penis. Counsel contended that the trial judge did not sufficiently draw the jury's attention to the significance of this lost opportunity. Counsel complained that the judge failed to tell the jury that the reason why this loss of opportunity was significant was that it 'might provide a competing answer to the complainant's testimony which otherwise had the appearance of being somewhat unremarkable'.[30]
2. Unsurprisingly, the appellant does not challenge the correctness or the desirability of the trial judge's warning that the jury should not engage in speculation, and that they were required to decide the case on the evidence. Specifically, the appellant does not suggest that it would have been permissible for the jury to speculate about what a physical examination of the tip of the condom may have demonstrated, or to speculate about what Luke might have said had he been called to give evidence at the appellant's trial. Accordingly, the real question raised by the ground of appeal and by the submissions made in support of that ground, is whether the Longman direction was, in the context of the direction not to speculate, adequate for the purposes of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice.

1. There are several reasons why the trial judge's Longman direction was adequate in the circumstances of this case, and why it was not undermined or otherwise affected by the instructions given to the jury that they must not speculate about matters that had not been the subject of any evidence.
2. First, having regard to the purpose and effect of a Longman direction, the ground and its supporting submissions are founded on conceptual confusion.
3. The purpose of, and circumstances calling for, a Longman direction were discussed by this court in SPB v The State of Western Australia[31] and in Eravelly v The State of Western Australia.[32] A Longman direction is an example of a warning that is given when it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. The concern that animates the need for a Longman warning is that judicial experience demonstrates difficulties with particular classes of evidence or particular evidence with which a jury is unlikely to be familiar.[33] The rationale for giving a Longman direction was explained by Buss JA in SPB, namely that:[34]

[A] jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence.

1. A Longman warning may also be required where there has been a substantial delay between the occurrence of the alleged offending and the accused being charged, despite a complaint having been made and the accused having been informed of the complaint promptly after the occurrence of the alleged offending. See Longman;[35] Tully v The Queen;[36] RMD;[37] DWM v The State of Western Australia [No 2];[38] and Eravelly.[39]
2. Ordinarily, in considering whether a direction is required in order to avoid a perceptible risk of a miscarriage of justice, it will be relevant to consider whether there is a question about the reliability of some important aspect of the evidence against the accused, whether that arises from a factor the significance of which may not be appreciated by the jury, whether the evidence in question is corroborated, and whether, and if so to what extent, the accused suffers a forensic disadvantage.[40]
3. As to the content of a Longman direction, as this court observed in DWM v The State of Western Australia [No 2]:[41]

When a Longman direction is necessary, the trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice.

However, a Longman direction has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice. (footnotes omitted)

1. It can be seen, therefore, that the object of a Longman warning is to ensure that the jury appreciate that as a result of a substantial delay between the occurrence of the alleged offence on the one hand, and the accused being informed of the complaint or charged on the other, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The terms of such a warning instruct the jury that because of the delay it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances that have a logical bearing on the truth and accuracy of that evidence. Thus, a Longman direction is directed to the manner and framework in which the jury must evaluate the complainant's evidence in deciding whether they are satisfied beyond reasonable doubt as to the charged offence(s). The direction not to speculate tells the jury not to bring a conclusion based on speculation to bear in making findings and in coming to their verdict. In that light, orthodox instructions not to engage in speculation, including speculation about what might have been produced as evidence had there been no delay, are incapable of undermining a Longman direction. These two directions - the Longman warning and the direction not to speculate - operate in different spheres of the jury's discharge of their function in accordance with the judge's directions. They do not collide and are in no sense inconsistent.
2. The forensic disadvantage occasioned by delay is the loss of a potential opportunity to bring forth evidence that might have cast doubt on a complainant's evidence or that may have supported an aspect of the defence case. A jury's appreciation of the existence of such a disadvantage, and reaching an understanding that it is a factor to be taken into account when assessing the honesty and reliability of a complainant's evidence, does not involve, much less require, speculation about how successfully an accused might have challenged a complainant's evidence, or how the defence case may have been presented differently, had there been no delay. In other words, as Grove J (with whom Spigelman CJ & Sperling J agreed) observed in R v BKK,[42] a Longman direction is not an invitation to speculate as to what the accused may have been able to prove, or we would add, as to the respect(s) in which the accused may have been able to create doubt as to the complainant's account, had the delay and consequent forensic disadvantage not existed. To the contrary, as Grove J observed, a Longman direction must be framed so as to avoid the error of inviting the jury to speculate upon what the accused may have been able to prove.
3. Consequently, contrary to the appellant's submission in [38(3)] above, there is no 'fine line' to be navigated by the jury between what is required by a Longman direction and what may amount to an impermissible speculation. In that regard, the appellant's reliance on what was said by Vanstone J[43]n R v Ford43 is misplaced. In that case, Vanstone J said that there was a fine line between what Longman and Crampton require in terms of explaining the forensic disadvantage that delay can cause, as against putting suggestions as to a potential forensic disadvantage to the jury which have no evidentiary base, and which could amount to speculation. In this passage, her Honour was considering a complaint that the judge had failed to adequately identify the forensic disadvantages suffered by the appellant in that case arising from the delay. The identification by the judge of a forensic disadvantage is quite distinct from directing the jury that they may or should speculate as to the position had the forensic disadvantage not been suffered. Thus, what her Honour said does not assist the appellant.
4. Secondly, assuming a direction was required, the judge's direction was comfortably sufficient to avoid any perceptible risk of a miscarriage of justice. In this case the jury's attention was drawn to the relevant facts and circumstances based in the evidence adduced at the appellant's trial. The jury was specifically directed that the appellant had 'lost the opportunity to explore and perhaps bring forward matters of defence and to test the details of the evidence of the complainant'. In that context, the jury was reminded about specific opportunities that had been lost, again based on the evidence, including witnesses who were 'no longer available by reason of being deceased, uncontactable or not cooperating'. Although the trial judge did not specifically refer to Luke in this part of his directions, the reference to witnesses who were unavailable because they were 'not cooperating' could only have been understood by the jury as being a reference to Luke.
5. In relation to the evidence about the tip of the condom, the jury was told that:

the piece of condom which Dr Phillips located has also been lost and not retained and is therefore not currently available for examination even thought the condom itself is still presently retained by the police.[44]

1. It may be accepted that the trial judge did not specifically explain to the jury the potential significance of the appellant's inability to examine the tip of the condom. However, assuming that such an explanation would not have invited speculation, there is no realistic prospect that the jury did not appreciate its significance having regard to the way in which the trial was conducted.
2. In our view the directions were comfortably sufficient to avoid any perceptible risk of a miscarriage of justice. We note, in that regard, that the appellant's very experienced trial counsel, who we have no doubt was immersed in the issues that had been raised at the trial and was therefore well placed to identify any perceptible risks of a miscarriage of justice, did not at any stage suggest that the trial judge's directions were deficient in any respect. Specifically, the appellant's trial counsel did not submit that the warnings against engaging in speculation were erroneous or that they had any adverse effect on the Longman direction. The absence of objection to a judge's directions is not fatal to reliance on an error if it occasioned a miscarriage of justice,[45] but it may tend against a finding that a perceptible risk of a miscarriage of justice was present at the trial.[46]
3. Thirdly, the circumstances of the case reveal no risk of any miscarriage of justice of the kind which a Longman direction is concerned to avoid. It may be accepted for the purpose of this appeal that the appellant did suffer from potential forensic disadvantages that resulted from the lengthy passage of time that had elapsed between the date of the alleged offending and the time that he was first prosecuted. However, the appellant's inability to examine the tip of the condom may not have had anything to do with the delay, and the fact that Luke did not give evidence at the trial had nothing to do with delay. In any event, the jury would have readily appreciated the significance of any forensic disadvantage resulting from an inability to examine the tip of the condom, and from the absence of Luke as a witness, and the relevance of any such disadvantage to their assessment of the complainant's evidence. Accordingly, and contrary to the appellant's contentions, the directions that were given to the jury not to speculate about those matters did not have, and could not have had, any material adverse effect on the adequacy of the Longman direction to the extent to which it dealt with those same matters. We proceed to explain this conclusion in more detail.
4. The evidence at the appellant's trial established that the tip of the condom that Dr Phillips found during her examination of the complainant's vagina was forwarded to the pathology laboratory on 7 March 2001, shortly after the appellant was alleged to have committed the offence on or about 3 February 2001. The tip of the condom was then returned to the police from the pathology laboratory on 28 May 2001, without it having been examined or tested. However, there was no evidence about what exactly happened to the tip of the condom after it had been returned to the police, other than that it could not be located when the complainant's allegations were reviewed in 2008 and 2009. As the police officer who reviewed the complainant's allegations at that time said in her evidence:[47]

In terms of the broken condom piece were you able to ascertain what had happened to that? --- No, I was unsure what had happened. I believe it may possibly have been destroyed but I wasn't 100 per cent. There was no policy in 2001 to retain serious crime exhibits so it could have been destroyed.

1. Accordingly, there is considerable room for doubt about whether the appellant suffered any forensic disadvantage because of his inability to examine the tip of the condom that was the result of any delay in a prosecution that was commenced in 2021. The appellant may have been unable to examine the tip of the condom for reasons other than the delay in prosecution, including because it was destroyed after the complainant initially withdrew her complaint.
2. In any event, in the circumstances of this case there was no risk that the jury would have failed to appreciate that the appellant was disadvantaged because he was unable to examine the condom tip in order to test whether it: (i) supported the prosecution case that it had been torn in the course of sexual intercourse; or (ii) suggested that the complainant had cut the tip off the condom and then inserted it into her vagina for the purpose of falsely accusing the appellant of sexually penetrating her vagina with his penis without consent. In her cross‑examination of the complainant the appellant's trial counsel made it abundantly clear that it was suggested on behalf of the appellant that she had cut off the tip of the condom and inserted it into her vagina. Trial counsel also made submissions about that same topic to the jury in her closing address. The jury would have well understood what was being suggested by the defence. The jury would also have readily appreciated that because the tip of the condom had disappeared at some point in time well before the appellant was charged, he had been deprived of the opportunity of having it examined to see whether it undermined the complainant's evidence and supported his argument.
3. Further, based on the evidence that was adduced at trial, the appellant was not denied the opportunity of adducing relevant evidence from Luke by reason of the delay in prosecution. The investigating police officer assigned to the case in 2020 gave unchallenged evidence that she spoke to Luke during her investigation and that he had made it very clear to her that he did not wish to cooperate. This was not a case in which the appellant was forensically disadvantaged because the delay in prosecution meant that he had difficulties in recalling the names of witnesses who may have been able to give relevant evidence, or because it meant that there were difficulties in identifying and locating potential witnesses. Luke did not give evidence for the prosecution at the appellant's trial because he refused to cooperate with the police, not because of a delay in the commencement of the prosecution.
4. It follows that there was no relevant perceptible risk of a miscarriage of justice arising from any forensic disadvantage visited on the appellant because of the unavailability of the condom tip or because Luke was not called as a witness at the trial. To the extent that the appellant suffered any relevant forensic disadvantage because of those matters, it was not of such a nature that the jury may have failed to appreciate its significance, and, in any event, it did not arise because of any delay. The trial judge's specific warnings about those matters were unnecessary and were unduly favourable to the appellant. It follows that even if the trial judge's direction not to engage in speculation had the effect contended for by the appellant, there is no room for a conclusion that the directions failed to adequately warn the jury of the risk of a miscarriage of justice.
5. This conclusion is reinforced by the following. In considering whether the directions were sufficient to avoid a perceptible risk of a miscarriage of justice, it is informative to properly contextualise the alleged forensic disadvantage relating to the appellant's inability to examine the tip of the condom found in the complainant's vagina. In that regard, it must be remembered that at trial the appellant suggested that the complainant had deliberately cut the tip from the condom and, in an effort to falsely accuse a man who was a stranger to her of sexually penetrating her vagina with his penis, took the further step of deliberately inserting the tip of the condom into her vagina. The complainant must have then persisted with her allegations over 20 years later, in circumstances in which she had withdrawn her complaint on two occasions during that period.
6. We agree with the complainant's response to this suggestion when it was put to her in cross‑examination: it was 'ridiculous'.[48] In our view, this reinforces the unlikelihood that the appellant suffered a material forensic disadvantage because he was deprived of the opportunity of examining the separated tip of the condom.
7. There is one final matter that should be mentioned. In the appellant's written submissions, it was also argued that the circumstances of this case were such that the trial judge was required to give the jury a 'stronger warning, which referred to it being dangerous to convict'.[49] However, that submission was not expanded upon in written submissions, nor was it developed to any extent during oral submissions.
8. It is settled that the sufficiency of a Longman direction does not depend on whether the word 'dangerous' is used in the course of the direction.[50] The direction is required to convey, with appropriate emphasis and as a direction of law that must be followed, the forensic disadvantages suffered by an accused person because of delay that may not be apparent to a jury, and the risk of a miscarriage of justice arising from those disadvantages. This court has repeatedly emphasised that there is no requirement to use a particular form of words.[51]
9. In this case, the trial judge directed the jury that '[i]t would be unsafe to convict the accused on the evidence of the complainant alone'.[52] There is no reason to conclude that the use of the word 'unsafe', as opposed to the word 'dangerous', occasioned or gave rise to any risk of a miscarriage of justice. On the assumption that the appellant did suffer a forensic disadvantage because of the delay in prosecution, which may not have been apparent to the jury, we are of the view that the trial judge's Longman direction sufficiently explained, with appropriate emphasis, those disadvantages as well as any associated degree of risk of a miscarriage of justice.

1. The ground of appeal does not have a reasonable prospect of succeeding. Leave to appeal should be refused and, given that there is only one ground of appeal, the appeal is then taken to be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[10] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[14] A shorthand reference to the direction that was held to be required in Longman v The Queen 91.

[27] Appellant's submissions [5] - [8], [43](a).

[28] Appellant's submissions [43](b) - [44].

[31] SPB v The State of Western Australia [2012] WASCA 136.

[32] Eravelly v The State of Western Australia [2018] WASCA 139.

[34] SPB [51]; see also RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [129], [198].

[36] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [181], [186] (Crennan J, Heydon J agreeing).

[38] DWM v The State of Western Australia [No 2] [2019] WASCA 143 [36].

[42] R v BKK [2001] NSWCCA 525 [32].

[43] R v Ford [2006] SASC 311 [12].

[45] Mahmood v The State of Western Australia [2009] WASCA 220 [65].

[46] Da Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [35].

[50] EPD v The State of Western Australia [2011] WASCA 264 [80].

[51] YNT v The State of Western Australia [2021] WASCA 89 [122].