Longman Warning and s165B

Brennan, Dawson, and Toohey JJ (would allow the appeal and find a “delay” direction should have been given)

1. An indictment was presented in the District Court of Western Australia at Perth charging the applicant, John Henry Longman, with several counts of unlawfully and indecently dealing with or assaulting each of three girls under the age of 14 years. The counts were severed and, after a trial on two counts, he was convicted on 21 October 1988 on both. The two counts were "that on a date unknown between the 22nd day of February 1962 and the 22nd day of February 1963 at Moora (he) unlawfully and indecently dealt with one (DRT) a girl under the age of 14 years" and "that on a date unknown between the 22nd day of February 1966 and the 22nd day of February 1967 at Moora (he) unlawfully and indecently dealt with" the same girl "a girl under the age of 14 years". Upon conviction, the applicant was fined $2,000 on each count and was ordered to be imprisoned until such fines were paid but so that the term of imprisonment for non-payment of each fine should not exceed three months. His appeal against conviction was dismissed by the Court of Criminal Appeal.

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4. In September 1987, the police interviewed the applicant. The police evidence was that the applicant admitted that the complainant's statement (which had been read to the applicant) was correct "except where she states I have been touching her genitals." The applicant gave evidence at the trial. He was then aged 57. He denied that he had ever indecently touched the complainant. His description of his dealings with her was entirely innocent. He spoke of the complainant as the backbone of the family. In his evidence, the applicant denied that the police had read the complainant's statement to him. However that may be, he denied to the police that he had interfered with the complainant. The defence led evidence of the applicant's good character.

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30. The Court of Criminal Appeal limited their enquiry unduly under a misconception of the scope of par.(b). The question which arose, and which arose under the latter part of par.(b), was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s.36BD requires) that there may be "good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence." 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, 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 20 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 of New South Wales, unreported, delivered 12 October 1989, pp 8,22-23,38-39,57-58) 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 20 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.

Deane J (would allow the appeal and find a more general warning about disadvantage to the Defendant should have been given)

19. The long effluxion of time (more than twenty years) between alleged offences and complaint and alleged offences and trial is of much greater significance. However, it would not, in my view, suffice of itself to produce the consequence either that it was not open to the learned trial judge to fail to be satisfied that a warning of the kind described in s.36BE(1)(a) was justified or that the verdict was unsafe and unsatisfactory in the absence of such a warning. True it is that such delay can be disadvantageous to an accused. In the context of the criminal onus of proof, it can be even more disadvantageous to the prosecution. Be that as it may, it does not seem to me that those possible disadvantages to an accused necessarily require a warning of the kind described in s.36BE(1)(a). The direction which would ordinarily be appropriate to deal with them would be one aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences. No direction in that regard was, however, sought by the applicant at the trial. It would seem likely that any difficulties which the applicant faced would have been thoroughly covered by his counsel in the course of his closing address since the learned trial judge expressly commented, in refusing to give a warning under s.36BE(1)(b), that "in relation to the effluxion of time comment from counsel can be made".

20. The real force of the applicant's case lies, however, in the combination of: (i) the circumstances of the alleged offences, and (ii) the possible effect, in the context of those circumstances, of the extraordinary lapse of time before complaint and trial. The gravamen of both offences was the alleged placing or pressing by the applicant of his hand on or against the complainant's genitalia. There was no suggestion of penetration, of violence or of contact with other than the applicant's hand. One of the alleged offences occurred when the complainant was six. The other when she was ten. On each occasion, the complainant was asleep immediately before the alleged offence. More than twenty years later, her recollection is that, on each occasion, she awoke to find the alleged offence being committed but pretended to remain asleep. She cannot remember whether she went back to sleep after the incident in the truck. After the other incident, the applicant carried her to her bed where she went back to sleep. It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance. The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant's evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinized with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant's guilt.

McHugh J (would allow the appeal and find a more general warning about disadvantage to the Defendant should have been given)

12. In the present case, there were no circumstances which would justify the judge in giving the jury the traditional warning. Delay in making the complaints would not justify the giving of that warning.

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17. The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev.ed.(1964), at pp 269-270.

18. No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, "I don't hate him but I do hate what he's done and the problems it's caused in my life". However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred.

19. To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.

20. Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge.

Gleeson CJ (did not decide the Longman point)

5. There is another point in the case, which was taken (unsuccessfully) in the Court of Criminal Appeal, and in respect of which there has already been a grant of special leave to appeal. In brief, it is whether the directions of the trial judge complied with the requirements stated by this Court in Longman v The Queen. I agree that they did not. However, this is a new trial point, and the applicant, even if successful on it, wishes to press the argument concerning the construction of s 81A.

Gaudron, Gummow and Callinan JJ (allowing the appeal on the Longman point)

24.During the years 1978 to 1988 the appellant was a primary school teacher. He taught children with learning disabilities. Complaints were made in 1997 by two of his former pupils about sexual misconduct by him of various kinds in their presence. Those complaints resulted in five charges against the appellant. The jury were unable to reach agreement on four of them. Only one of the charges is therefore now relevant. As Barr J in the Court of Criminal Appeal of New South Wales observed, the trial had this unusual aspect:

"A peculiar feature of the trial was that although in his evidence about the second and third counts [the relevant complainant] said that [the other complainant] was present, no evidence was adduced from [the latter] about those events. Similarly, [the relevant complainant] gave no evidence about the events giving rise to the fourth and fifth counts, notwithstanding that [the other complainant] said that he was present."

25. The offence with which this Court is concerned was alleged to have occurred between 31 July 1978 and 1 October 1978. The complainant's evidence was that the appellant enticed him into a storeroom located at, and opening off, the front of the classroom. There, in the complainant's presence the appellant engaged in sexual activity the details of which are set out in the judgment of Kirby J. There was no voluntary participation by the complainant in the conduct. The appellant, who gave evidence, said that an activity of the kind alleged never occurred and no opportunity for it to occur ever arose or was created. He also said that when he used the storeroom, he never closed the door between it and the classroom.

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32. In the course of summing up to the jury her Honour made these comments:

"Clearly you have to look carefully at the circumstances in which there has been no complaint at the time. But those matters to which I referred are also matters which you must take into consideration and give some thought to. You had the chance to observe both young men in the witness box and to assess their level of sophistication, even now in their early thirties. It is important that you look at the way in which they told you about these matters and the explanation they gave for not having complained earlier, when they were asked about those issues in cross-examination.

Late complaint, of course, necessarily has some potential disadvantages to the accused because it reduces his opportunity to explore the matters complained of in some ways or it has that potential. First of all, of course, memory of events tends to decrease and become vaguer. However, in this case, the accused says it did not happen. Not only did it not happen, there was never an opportunity for it to happen, never an occasion when it could have happened, never an occasion when there could have been a misunderstanding about what was happening. It is quite clear that the accused says there is no occasion of this nature or occasion when it might have been misunderstood. Two things arise, of course, when there is a delay in complaint. One is the opportunity of the accused perhaps to look at matters which were happening at about that time and to raise them in evidence. Also, the capacity of the complainants to be accurate is probably reduced and that may raise some greater difficulty in cross-examination of them. It may also, of course, explain some errors in the recollection."

33. Counsel for the appellant asked her Honour to give redirections in respect of the passage we have quoted. The submission was that her Honour's directions fell short of what the decision of this Court in Longman v The Queen required. Her Honour acceded to the submission by giving a redirection in these terms:

"Finally, I just want to make it very clear about this, the matters are to be looked at separately. There is no supporting evidence so that the evidence in one cannot be used in another. The evidence of one complainant cannot be used to support the evidence of the other. There was a very long period in which there was no complaint. The complaint came late. You must take that into account and the circumstances in which it came into existence and what the complainant, that is [the relevant complainant] who was the only one who complained of course, had to say about that. There was no complaint as such from [the other complainant]. He told the police about it when he was approached by the police following the complaint by [the relevant complainant]. You will be aware that in the circumstances of a twenty year delay that clearly those are all matters which you are going to consider. You are going to consider motive, the opportunity to concoct, the reason why that might be. You are going to look very carefully at the nature and circumstances in which that complaint came into existence. Those are all matters that you will bear in mind when you consider the case for the accused."

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36. Special leave to appeal was granted by Gaudron and Hayne JJ on 26 November 1999 on the following ground:

"The Court of Criminal Appeal erred in determining that the directions given to the jury by the learned trial judge on the delay of almost 20 years between the complaint and the conduct giving rise to it were adequate to meet the circumstances of the case."

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43. In our opinion, the appellant's appeal should succeed on the ground on which special leave has been granted.

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.

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 which 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. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion.

McHugh J (allowing the appeal on the Longman point)

67. I agree with their Honours that the case called for a Longman direction and that the conviction must be set aside. That being so, the question arises as to whether a new trial should be ordered or an acquittal entered in respect of the count which was the basis of the charge under s 81A of the Crimes Act 1900 (NSW).

Kirby J (allowing the appeal on the Longman point)

124. The foregoing conclusion requires that the appeal be allowed, the conviction quashed and a verdict of acquittal entered. Consequently, it is not strictly essential, in the approach which I take, to decide the point argued on the remaining ground of appeal for which special leave was originally granted. This concerned the appellant's complaint that the directions of the trial judge had failed adequately to warn the jury of the dangers of convicting the appellant given the delay of 19 years between the occurrence of the alleged offence and the initial complaint made against the appellant.

125. The law on this subject is stated in Longman. It has been repeated in a number of decisions involving delays very much shorter than that in the present case. It is important to note the distinction made by the majority in Longman between comment (which a trial judge may and sometimes should give to ensure the fairness of the trial) and a warning (which in circumstances of "long delay" it is "imperative", in the sense of obligatory, that the trial judge must give to the jury).

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130. The warning required by Longman must be, in the words of the joint reasons in this case, "unmistakable and firm". It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after 20 years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, 20 years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant.

131. Twenty years after the alleged offence, the first complainant was an adult whose life's experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability. Repeated answers to questions, searching the detail of the first complainant's testimony, such as "I can't remember" or "it's too long ago" made it extremely difficult to test that evidence in an effective way.

Hayne J (allowing the appeal on the Longman point)

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. That lapse of time inevitably meant that the accused was put at a significant disadvantage, of a kind and to an extent which a jury might not appreciate without proper direction. In Longman v The Queen, this Court described the instructions that should be given to the jury in these circumstances. As was said in the joint judgment:

"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."

141. The trial judge did not give such a direction in this case. Nowhere did the trial judge speak of the dangers of convicting the appellant on the complainant's evidence alone.

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, 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.

MacFarlan JA

1. I agree with Adams J.

Adams J

3. The appellant was charged with four counts of aggravated sexual assault (described as representative) of his then wife, the complainant, between 1 March 1992 and 31 December 1992, 1 June 1992 and 30 April 1993 (two offences) and 1 April 2003 and 30 April 2003. The alleged circumstance of aggravation was that, at the time of the assault, the appellant maliciously inflicted actual bodily harm on the complainant (in respect of the first assault, bruising and the others, internal injuries causing bleeding). In respect of each of the four counts, the appellant was convicted on 26 September 2011 of the statutory alternative of sexual assault. He was sentenced to an overall term of imprisonment of 7 years and 6 months with a non-parole period of 5 years commencing 26 September 2011. There is only one ground of appeal, namely that the learned trial judge erred in failing to inform the jury of the significant forensic disadvantage suffered by the appellant as a consequence of delay.

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26. Ultimately, the sexual assaults were reported by the complainant to police on 28 September 2009. The officer in charge of the investigation requested a statement from a Dr Thompson at the Kariong Medical Centre concerning the treatment which the complainant said that she had received when at the women's refuge. However, she was advised by another staff member at the centre that Dr Thompson did not wish to complete a statement as the consultations were such a long time ago. Dr Thompson was not called as a witness. The officer also contacted Relationships Australia as to records of the counselling sessions with the complainant and the appellant but was advised that records were not available, as they are only kept for seven years.

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38. Before the close of the Crown case, after Sergeant Smith had completed his evidence, the judge asked counsel for submissions concerning the directions which each side wished to be given to the jury. His Honour referred to s 165B(2) of the Evidence Act 1995, and asked Mr Doyle for a "bullet points" summary of the particular forensic disadvantages which it was alleged had occurred, noting that this was not a situation where a witness had died or was unable to be located or any potential evidence had been lost.

39. Following some brief discussion involving the Crown prosecutor, Mr Doyle of counsel for the appellant referred the judge to s 165B(7)(b) (concerning the consideration that potential evidence has been lost or is otherwise unavailable), and mentioned two areas of evidence, which he called "forensic evidence" and "medical evidence". In respect of the former, he referred to semen. The judge (with respect, rightly) said it was immaterial as the only issue was consent rather than the fact of intercourse. This was conceded by Mr Doyle. As to medical evidence, Mr Doyle submitted there was no possibility, or not a useful possibility, of obtaining medical evidence about anal bleeding or the alleged bruising. He submitted that, because of the long delay in complaining, it was impossible to corroborate (or disprove) the complainant's evidence about these matters. The appellant was further disadvantaged by his not having any fresh recollection of what had occurred and, in respect of the bruising on the complainant's arms, no possibility of getting any independent evidence from any witnesses who may have observed her. In relation to this last matter, his Honour pointed out that the appellant had informed Dr Cassimatis that he had observed bruising. (The notes, however, do not state where the bruising was, the appellant conceding the complainant was bruised in her pubic area.) The next matter raised by Mr Doyle concerned the evidence of the appellant's sister about the complainant telling her she had visited a hospital - although this was denied by the complainant. Mr Doyle submitted that the medical records of all the hospitals in the relevant area at the time could have been subpoenaed but the effluxion of time meant that it was highly unlikely that those records still existed. Mr Doyle then asked to reserve his position and that is where the matter rested until after addresses.

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44. In the result, the trial judge made no reference in his summing up to the issue of delay in the context of the appellant suffering a forensic disadvantage. As it happened, Mr Doyle did not himself refer to this matter in his address, although of course, he was perfectly entitled to do so (and the judge must then have referred to the argument in the course of summarising the defence case).

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55. It will be seen from subsection 165B(5) that the section is the sole source of a judge's authority either to warn or inform the jury about any forensic disadvantage that a defendant or accused may have suffered because of delay. Of course, this would not prevent a judge from putting these matters to the jury as a part of the defence case if counsel had addressed the jury to that effect. Indeed, there would be a duty to do so.

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58. It seems to me, therefore, that the only matters which could have been considered by the trial judge on the appellant's application were those which were raised by Mr Doyle. The matters he referred to when the question first arose were not the same as those articulated on the second occasion. Perhaps the most significant of these was the inability to obtain medical evidence as to any injury to the complainant which gave rise to the repeated bleeding to which she referred. It is not clear why that matter was not pressed. In my view, however, the judge was entitled - indeed, bound - to act on the basis that the later list (which, after all, was produced after a period of reflection) superseded the former. In the result, the only matters ultimately identified as constituting significant forensic disadvantage arising from delay (with consequent imprecision as to dates) were the appellant's inability to obtain alibi evidence, the impossibility of gathering "fresh forensic evidence, say blood on sheets" (emphasis added) and, lastly, the possibility that witnesses "have perhaps forgotten important exculpatory material" of which Mr Doyle was unable to give an example.

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61. WSP is therefore not authority for the proposition that, where an early informal complaint is made, the fact that there is a significant delay before the alleged offender is confronted with the complaints by the police is irrelevant. The significance of delay will plainly always be a matter of fact and degree and whether a warning should be given will depend upon whether a significant forensic disadvantage has been identified. If it has been identified then it is clear that the warning ought to be given, simply because it is or can be a very important factor to be taken into account when assessing the respective prosecution and defence cases and its importance may not be appreciated by the jury. The fundamental question is whether there has been a significant forensic disadvantage, which will depend on the nature of the complaint and the extent of the delay in the circumstances of the particular case. The extent of delay is not the test. Rather, it is the consequence of delay which is decisive. The focus on the length of delay has, I think, arisen because of the notion of presumptive prejudice, especially as to reliability of recollection, which was earlier regarded as giving rise to the need for a warning.

62. Accordingly, the trial judge's dismissal of the significance of the delay in reporting the alleged misconduct to the police because the complainant immediately complained to the appellant about his misconduct is, with respect, an error of law. However, this does not dispose of the matter. As I explain below, the matters ultimately identified by the counsel for the appellant at trial did not identify any forensic disadvantage which could fairly be regarded as significant.

Button J

67. I agree with Adams J

Basten JA

1. The applicant was convicted of several offences of sexual assault on the complainant, identified as JT, a 12 year old friend of the applicant’s daughter. The offences took place on the evening of Friday, 29 June 2007. The applicant was charged in 2009, but the trial did not come on until November 2012, when the applicant was convicted by a jury on each of four counts. He has remained in custody from the date of conviction, namely 30 November 2012.

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51. In Longman v The Queen [1989] HCA 60; 168 CLR 79 at 91, the joint judgment of Brennan, Dawson and Toohey JJ stated:

“The fairness of the trial had necessarily been impaired by the long delay ... 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.”

52. The applicant contended that this was such a case, although the delay was not of the same order. However, the applicant accepted that, the prosecution having been commenced after 1 January 2009, the relevant law was to be found in s 165B of the Evidence Act 1995 (NSW). That section reads:

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53. The effect of this provision is:

(a) to prohibit the judge from directing the jury “about any forensic disadvantage the defendant may have suffered because of delay” otherwise than in accordance with the section (subs (5));

(b) there is a duty to warn, but only where the judge is satisfied that the defendant has “suffered a significant forensic disadvantage because of the consequences of delay” (subs (2));

(c) the obligation to warn is subject to a rider where there are “good reasons” for not taking that step (subs (3));

(d) the judge is prohibited from suggesting that it would be dangerous or unsafe to convict “solely because of” the delay or the disadvantage (subs (4));

(e) subject to the last prohibition, no particular form of words need be used (subs (4)).

54. Consistently with this scheme, the judge must identify the significant forensic disadvantage and must inform the jury of the nature of that disadvantage; the direction will therefore need to be case specific. In directing the jury of the “need” to take that disadvantage into account, it will usually be expected that a direction would identify, so far as it is not obvious, how the disadvantage may affect the jury’s consideration of the evidence. This aspect of any direction will not be straightforward: the usual consequence of delay is the loss of evidence or the loss of opportunity to test evidence; each involves a counterfactual assumption.

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59. To assess the challenge to the trial judge’s refusal to give the proposed form of direction, it is desirable to identify how the question should be approached. However, the operation of s 165B should not become encrusted with judicial exegesis of the kind surrounding the “Longman direction”, which led to its enactment. Suffice it to say, there are a number of broad considerations which bear upon its application in the present case.

60. First, the proper focus of the section is on the disadvantage to the accused; it does not reflect any degree of prejudgment of the reliability of a complainant’s evidence with respect to a sexual offence, aspects of which underlay certain observations in Longman: see Spigelman CJ in JJB v The Queen [2006] NSWCCA 126; 161 A Crim R 187 at [4]- [8].

61. Secondly, the concept of delay is relative and judgmental. Where both complainant and law enforcement authorities have acted with all reasonable expedition, it is not usually apt to describe any lapse of time as involving “delay”. Delay is suggestive of hesitation or indecision of the complainant or inefficiency on the part of authorities. That is not to say it involves blameworthy conduct: quite significant lapses of time may be reasonable in the context of a child who is the victim of sexual assault. Whether that which is not unreasonable constitutes “delay” for the purposes of s 165B will depend upon particular circumstances.

62. Thirdly, although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the permissible exception in s 165B(3). In the present case, the complainant alleged that the applicant had said to her, “this is our little secret and if you tell anyone I’ll kill myself”: ERISP Tcpt, Q47. It is doubtful whether such a manipulative threat of self-harm, made by the father of a 12 year old girl’s best friend, is any less deplorable than a threat of harm to the victim. If the trial judge had been satisfied that such a threat had been made (and it appeared to be corroborated by the documented circumstances of the applicant’s admission to Richmond Clinic when he understood a charge might be laid against him, he then being suicidal) that would have provided a good reason not to treat the direction as required or, if the power were engaged, a good reason for not exercising it.

63. Fourthly, if the accused is put on notice of the complaint, any failure to make inquiry or investigation thereafter will not normally constitute a consequence of the delay, but a consequence of the accused’s own inaction. The applicant complained that the trial judge took that into account, but he was wrong to do so. However, the circumstances of his admission to the Richmond Clinic in October 2007 were inconsistent with the position of a person told of a potential allegation for the first time or even after warning, where he knew the complaint was utterly false. If he had wanted further details from the complainant as to the time and place where the offence was said to have been committed, there was no evidence that such information would not have been provided, even if she declined to be interviewed. (At that time it seems the police knew few details.) Further, since he feared gaol, it would not have been unreasonable for him to seek legal advice at that time, as he did in March 2009, when the police had a basis to charge him. However, there was also no basis in the evidence for inferring that, if told of the general nature of the charge, he would have made inquiries at that time of his daughter.

RA Hulme J

91. I agree with Basten JA

Campbell J

92. I have had the benefit of reading the judgment of Basten JA in draft. Subject to two matters, I agree with his Honour’s reasons.

Price J

1. On 15 June 2015, after a trial by jury before Wells SC DCJ (“the judge”), TO (“the appellant”) was found guilty of three offences, namely: one count of aggravated sexual intercourse with a person under the age of ten, the circumstance of aggravation being that the child was under the appellant’s authority, contrary to s 66A(2) of the Crimes Act 1900 (NSW) (“Crimes Act”); one count of attempting to have sexual intercourse with a child under the age of ten contrary to s 66B of the Crimes Act; and one count of assaulting a child under the age of ten with intent to have sexual intercourse contrary to s 66B of the Crimes Act.

2. The Crown case was that the victim of all of the offences was ZK (“the complainant”), the 9 year old daughter of the appellant’s former partner. The complainant, her mother, the appellant and two of his three sons lived together in a house in Wilsons Creek.

3. It was the Crown case that between 19 June 2012 and 21 June 2012, whilst the complainant was in the shower, the appellant inserted his penis into her anus (count 1) and attempted to put his penis into the complainant’s mouth (count 2). Later on the same day, in the appellant’s bedroom, the appellant pulled the complainant’s pants down and tried to have vaginal intercourse with her (count 3).

…

8. The appellant appeals against his convictions on the following grounds:

“Ground 1: Her Honour’s refusal to discharge the jury as a consequence of aspects of the Crown Prosecutor’s address to the jury occasioned a miscarriage of justice.

Ground 2: A miscarriage of justice was occasioned by trial counsel’s failure to seek a direction pursuant to s165B of the Evidence Act 1995 regarding the forensic disadvantage suffered by the appellant by reason of the delay in complaint.

Ground 3: The verdicts are unreasonable and cannot be supported by the evidence.”

…

Ground 2: A miscarriage of justice was occasioned by trial counsel’s failure to seek a direction pursuant to s165B of the Evidence Act 1995 (NSW) regarding the forensic disadvantage suffered by the appellant by reason of the delay in complaint

Submissions

156. At the commencement of the hearing of the appeal, Mr Barrow obtained leave, without objection, to read an affidavit of Mr Watts sworn 17 May 2016. It is convenient to recount the affidavit before proceeding to Ground 2:

“2. During the course of the trial I did not consider seeking a direction from the trial judge to the jury pursuant to s165B of the Evidence Act 1995.

3. Had I considered the issue I would have sought such a direction with regard to the significant forensic disadvantage suffered by the applicant as a consequence of the delay in complaint.

4. The most significant feature of the disadvantage occasioned by the delay at the trial was the difficulty experienced by the applicant’s son, OJ, in recalling the events in question.”

…

167. The following is a summary of the effect of s 165B:

(1) The duty on the judge to give a direction in accordance with subsection (2) arises only on application by a party and what is said to be the particular significant forensic disadvantage must form part of the application: Groundstroem v R [2013] NSWCCA 237 (“Groundstroem”) at [56].

(2) Subsection (5) prohibits the judge from directing the jury “about any forensic disadvantage the defendant may have suffered because of delay” otherwise than in accordance with the section: Jarrett v R(2014) 86 NSWLR 623; [2014] NSWCCA 140 at [53] (“Jarrett”).

(3) There is a duty to inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence, only when the judge is satisfied that the defendant has “suffered a significant forensic disadvantage because of the consequences of delay”: Jarrett at [53].

(4) Subsection (3) provides a rider to the obligation to inform where the judge is satisfied there are “good reasons” for not taking that step: Jarrett at [53].

(5) Subsection (4) prohibits the judge from suggesting that it would be dangerous or unsafe to convict the defendant “solely because of” the delay or the disadvantage. Otherwise, no particular form of words need be used: Jarrett at [53].

(6) Whether there has been a significant forensic disadvantage depends on the nature of the complaint and the extent of the delay in the circumstances of the case. The extent of delay is not the test. It is the consequence of delay which is decisive: Groundstroem at [61]. The proper focus of s 165B is on the disadvantage to the accused: Jarrett at [60].

(7) The concept of delay is relative and judgmental. Although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the exception in s 165B(3): Jarrett at [61]–[62].

(8) If the accused is put on notice of the complaint, any failure to make inquiry thereafter will not normally constitute a consequence of the delay, but a consequence of the accused’s own inaction: Jarrett at [63].

…

173. Section 165B replaced the common law position enunciated in Longman v R (1989) 168 CLR 79; [1989] HCA 60 at 91, which required the jury to be warned that by reason of delay, it would be dangerous to convict on the evidence of a complainant alone.

Button J

241. I agree with the proposed order and reasons of Price J with regard to the appeal against conviction. In particular, on my own assessment, ground 3 is not established.

Fagan J

245. Regarding ground 3 I have independently examined the trial evidence, particularly that of the complainant and especially in relation to count 2. Like Price J I consider it was open to the jury to resolve all of the issues concerning the complainant’s evidence, as raised by defence counsel in final address and which have been agitated on the appeal, in favour of accepting her account of the events of each charge, beyond reasonable doubt. I do not consider that the jury must have been left with a reasonable doubt on any of the counts.

246. The evidence in relation to count 2 had to be evaluated with care because of the manner in which the complainant’s first mention of this emerged. That is, during a conversation with her mother after her initial interview with police and then, in a subsequent police interview, under prompting and leading questions based upon the recollection she had earlier passed on to her mother. The jury were appropriately directed to scrutinise the complainant’s evidence on count 2 with particular care in the passages that of the summing up quoted by Price J at [220] and [221]. It was open to the jury to accept the complainant’s evidence on this count, beyond reasonable doubt, if they saw fit after reviewing it in accordance with these directions.