Reported Decision : (2002) 54 NSWLR 241 (2002) 129 A Crim R 153 New South Wales Court of Criminal Appeal CITATION : Regina v B.W.T [2002] NSWCCA 60 FILE NUMBER(S) : CCA 60252/00 HEARING DATE(S) : 30 January 2002 JUDGMENT DATE : 12 April 2002 PARTIES : Regina B.W.T JUDGMENT OF : Wood CJ at CL at 1; Sully J at 42; Dowd J at 119 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/71/0141 LOWER COURT JUDICIAL Howie DCJ OFFICER : COUNSEL : L. Lamprati - Crown P. Hamill - Appellant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Appellant Crimes Act 1900 (NSW) LEGISLATION CITED : Evidence Act 1906 (W.A.) Crimes Act 1958 (Vict.) The Queen v Maric (1978) 52 ALJR 631 The Queen v Glennon [1992] 173 CLR 592 R v George (1987) 29 A Crim R 380 Reg v Channell [2000] NSWCCA 289 Longman v The Queen (1989) 168 CLR 79 Crampton v The Queen (2000) 176 ALR 369 Doggett v The Queen (2001) 182 ALR 1 Reg v Johnston (1998) 45 NSWLR 362 The Queen v Dixon [2001] NSWCCA 39 Reg v Roddom [2001] NSWCCA 168 Reg. v G.J.H [2001] NSWCCA 128 Reg v Ball [2001] NSWCCA 352 Reg v Murre [2001] NSWCCA 286 CASES CITED: Reg v Roberts [2001] NSWCCA 163 Reg v Folli [2001] NSWCCA 531 Reg v Spencer [1987] AC at p.141 Jago v District Court (NSW) 168 CLR 91 Crofts V The Queen (1996) 186 CLR 427 Reg v J.G.W [1999] NSWCCA 116 Veen v The Queen (No. 2) (1988) 164 CLR 465 Jones v The Queen (1997) 191 CLR 439 Wyong Shire Council v Shirt (1980) 146 CLR 40 M v The Queen (1994) 181 CLR 487 CSR Limited & anor v Bouwhuis - unreported - CA: 23 Augusut 1991 Reg v Zorad (1991) 19 NSWLR Reg v Williams - unreported - CCA: 10 October 1990 Reg v Knight - unreported - CCA: 19 December 1990 Pemble v The Queen(1971) 124 CLR DECISION : Appeal allowed; convictions recorded and sentences passed in Court below quashed; new trial ordered -IN THE COURT OF CRIMINAL APPEAL 60252/00 WOOD CJ at CL SULLY J DOWD J Friday 12 April 2002 REGINA v BWT Judgment 1 WOOD CJ at CL: This is yet another appeal which turns upon the question of whether or not the jury was given an adequate instruction in relation to the so-called Longman warning. By reason of the lengthy delay, it clearly was a case calling for such a warning – the only point relevant for this ground of appeal is whether sufficient was said. 2 After giving some general directions to the jury to the effect that they were "required to scrutinise" the evidence of the complainant, and to do so "with some care before [they] rel[ied] upon it", his Honour continued: " when assessing her evidence in relation to these matters of course you have to take into account that these incidents occurred many years ago and that in respect at least of the early allegations that they relate to a period when she was a very young child. You could also, when you are assessing the complainant's evidence and determining whether you can convict the accused on that evidence, the fact that these matters have come to the surface for trial so long after they are said to have occurred and it may now have resulted in some difficulties for the accused in defending himself. By reason of that delay he may have been deprived of the opportunity of finding witnesses who might indicate that what the complainant or her sister says could not possibly have happened. The delay has resulted in some vagueness as to when events occurred. It seems to have perhaps resulted in the conflict between the evidence of …[the complainant and DAW].. as about this incident when they were both in bed with the accused. The vagueness in the evidence, because of the delay, on matters of detail such as the dates really gives the accused little opportunity to rebut what she says except by way of general denial or calling evidence as to these other peripheral matters. And a general denial may sound less convincing than a defence, which can attack the substance of allegations made by a complainant shortly after it is alleged that those incidents occurred. Had there been no delay in these particular allegations coming to the trial the accused may have been able to bring other evidence which would indicate in some way that what the complainant is saying could not possibly be true either in one respect or more. Because of these difficulties, and because it is the only evidence on which the Crown relies, you have to scrutinise the evidence of the complainant carefully before you can convict the accused upon it. However in giving you that direction be perfectly clear I am not indicating to you my personal view at all about the way you should assess the complainant's evidence or how you should determine the particular allegations in this case. I have told you that I do not intend to convey my personal opinions. I am merely doing what the law requires me to do, and that is to point out to you the importance of the complainant's evidence in your deliberations and matters which might indicate or affect the weight of her evidence before you. Really I am only emphasising matters which are matters of common sense and which you would understand anyway. But I make it perfectly clear you are entitled to convict the accused on the evidence of the complainant alone but only once you have considered it carefully and only if you are satisfied beyond reasonable doubt that she is honest and accurate in relation to any or all of these allegations. " (Emphasis added). 3 There was no application, either by the Crown Prosecutor or by counsel appearing for the appellant, for any re-direction. It is now submitted however, that the directions given were inadequate in that: (a) they were not cast in the form of a warning employing the expression that it was " unsafe " or " dangerous" to convict, by reason of the delay, unless after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, the jury was satisfied of its truth and accuracy; and (b) the consequences for the appellant of the delay were dealt with in terms that they may have deprived him of the opportunity of testing or meeting the prosecution case, in the various ways mentioned, rather than in terms that they did have that effect. 4 I have read the judgment of Sully J in draft concerning this submission and agree, for the reasons outlined by his Honour, that it has been made good. In that regard, I respectfully agree with his Honour's summary of the directions which now need to be given in cases involving allegations of sexual assault, where there is significant delay between the offence charged and trial, arising out of the several decisions of the High Court mentioned in those reasons. I also respectfully concur with the additional observations contained in the addendum to the judgment. 5 I do, however, wish to record my concern in relation to some aspects of relevance for this appeal, and for similar cases. 6 Of immediate importance for the present appeal was the need for a warning as to the impact of delay upon the accused, arising out of the observations of Brennan, Dawson and Toohey JJ in Longman v The Queen (1989) 168 CLR 79, at 91, that: " 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, 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. " 7 The need for such a warning and not merely a comment, their Honours observed, arose because these was "one factor which may not have been apparent to the jury." That factor, they went on to say: " ..was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW)) and it was imperative that a warning be given to the jury. " (Emphasis added). 8 McHugh J (at 108-109) similarly noted the need for a particular warning in a case involving a substantial delay between the occurrence of the events alleged and the making of a complaint, so far as that raised a question as to whether the recollection could be acted upon safely, observing: " 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. 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, and 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 the 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." (168 CLR 108, 109). 9 In Crampton v The Queen (2000) 176 ALR 369, Gaudron, Gummow and Callinan JJ said, after noting this and other passages, in Longman, (at para 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." 10 Kirby J said (at paras 130 –132): "[130] The warning required by Longman must be, in the words of the joint reasons of 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 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. [132] The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. The idea is contrary to the repeated authority of the court in and since Longman. The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time – especially great time – may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms." (Emphasis added). 11 Hayne J, in confirming the need for a Longman warning, noted at 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 allegations. 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 directions. " 12 Next, in Doggett v The Queen (2001) 182 ALR 1, a case which had been fought at trial without the defence seeking to make capital of the delay, or of the resulting forensic disadvantage, Gaudron and Callinan JJ, in the course of identifying the reasons why the existence of corroborative evidence, in that case, had not relieved the trial judge of the need to give a Longman direction, said (at para 51): " Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witness were doing when the offences were alleged to have occurred." (Emphasis added). 13 These passages have been taken up, so it seems to me, as requiring that an instruction in equally positive terms, be given in every case involving a substantial delay, irrespective of whether or not there is any evidence, or basis beyond suspicion, that the absence of contemporaneity between the alleged offence and complaint, or trial has in fact (not 'might have') denied to the accused a proper opportunity to meet the charge or charges brought: see for example R v Roddom (2001) NSWCCA 168, R v GJH (2001) NSWCCA 128 and R v Roberts (2001) NSWCCA 163. 14 Put another way, the effect of these decisions has been to give rise to an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant's evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way. 15 The difficulty which I have with this proposition is that it elevates the presumption of innocence, which must be preserved at all costs, to an assumption that the accused was in fact innocent, and that he or she might have called relevant evidence, or cross examined the complainant in a way that would have rebutted the prosecution case, had there been a contemporaneity between the alleged offence and the complaint or charge. That consideration loses all of its force if, in fact, the accused did commit the offence. In that event there would have been no evidence available of a positive kind, relating for example to the existence or ownership of the premises, or of a motor vehicle or other item, associated with the offence charged, or going to establish an alibi for the relevant occasion, no matter how contemporaneous the complaint or charge was with the offence. 16 I do not seek by these observations to question the common sense considerations that delay can, and in many cases will, occasion difficulty to an accused who may have lost an opportunity to investigate whether a complaint of sexual misconduct could, or could not, have occurred at those places, or within the time frames alleged and, even more importantly, to gather physical evidence in the form of records, or evidence from other witnesses that would support such a proposition. The simple fact is that records can be lost or mislaid, and the memory of potential witnesses may dim, or they may not be capable of being found. 17 For these reasons, as Spigelman CJ noted in R v Johnston (1998) 45 NSWLR 362, in sexual assault cases which commonly turn upon a direct conflict or word against word, between a complainant and an accused, and where there is no independent verification of whether the event occurred, or of whether it was consensual, the contextual details of the alleged conduct will often prove to be "of definitive significance" (at p 370). 18 These are matters which can and should properly be placed before a jury, as relevant to its assessment of the prosecution case. My concern lies more with the unequivocal nature of a warning, which must be given by a trial judge who does not himself or herself know where the truth lies, that the accused was unable to adequately test and meet the prosecution case. 19 If in fact the accused did commit the offence charged, any such warning or direction would be misleading if not positively untrue. A similar consideration would apply if, in fact, the accused was not prejudiced, being able, in the particular circumstances of the case, for example to call positive and objective evidence in rebuttal, or where the absence of contemporaneity did not in any way deprive him or her of such an opportunity. 20 The latter circumstance might arise, for example, where the complaint related to a time and place where the accused was in fact living alone with the complainant, and in circumstances where, no matter what inquiries were made, the case became one of word against word, such that rebuttal evidence could never have been obtained. 21 I have no difficulty with the decision in Longman, or with the subsequent decisions, if understood as decisions on their own facts, that is, as cases where the delay was of such an inordinate degree that it was impossible for an accused even to begin to investigate the circumstances alleged. Nor do I have any problems with the warning now required, where there is evidence, or good reason to suppose positively, that the accused has been prejudiced. 22 Otherwise, I would respectfully raise for consideration, whether some modification should be made to the warning which, it seems to me, must now be given, in invariable and emphatic terms, of the fact of prejudice. In that regard I do not consider it unimportant that, in the various passages cited, the reasons given for the warning have at times spoken in terms of the possibility, rather than the fact, of prejudice, as underpinning it (see also in this regard the observations of Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439 at 454 to 455. 23 Nor do I consider it irrelevant that the impact of delay is double edged, since it is just as likely to occasion practical difficulty for the prosecution in pinning down times and places, and in gathering relevant witnesses. 24 The concern which I have identified in this respect has not gone unobserved in other decisions of this Court. For example in R v Collins (2001) NSWCCA 386, no submission was pressed at the trial for a warning that delay had made it difficult for the accused to defend himself. In arguing this point on appeal, counsel for the appellant accepted that no particular loss of evidence or specific prejudice, stemming from the delay could be identified, but submitted that the "the judge should have warned the jury that in the ordinary nature of things the frailty of human memory was such that the lapse of time must have placed the accused at a disadvantage." (At para 71). 25 Mason P, with whom Sully J and Newman AJ agreed, held that there was no substance to this objection to the summing up, particularly because the appellant could not point to any specific loss of evidence or prejudice. 26 Mason P held that although it is well established that there is an obligation to give a warning about the difficulties inherent in a delayed complaint, whenever it is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case, the "need for, and content of, any comment or warning will depend on the circumstances of the case" (At para 77). 27 To similar effect was the decision in Regina v JGW (1999) NSWCCA 116. In Regina v GPP (2001) NSWCCA 493, complaint was made of the absence of any warning about the forensic difficulties which delay might have created for the appellant, the caution given having been confined to its possible impact on recollection. This was held to have been insufficient, and the appeal was allowed, applying the majority decision in Doggett. 28 In R v Johnston (1998) 45 NSWLR 312 Spigelman CJ, after reviewing the authorities touching upon delay, identified a number of proposition of relevance for the determination of the appeal, including the following: " (v) Whenever it appears to a trial judge that delay…may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. … (ii) Where it appears…that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that the delay, for which the accused had not been responsible, had created those difficulties. … (iii) …The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v)." 29 In that case it was held that a delay of five and a half years, compounded by the fact that the Crown used the delay as an explanation for inconsistencies in the complainant's evidence, and unfavorably contrasted this with the "amazing recollection" of the appellant on matters of detail, meant that a warning should have been given which identified the specific difficulties that the appellant faced because of the delay. 30 The need for directions of this kind, his Honour had earlier noted, arose from the following considerations (at 369): " It is important to emphasize that what is required by way of comment or direction must depend on the whole of the circumstances. These circumstances extend to encompass any aspect of the conduct of the trial including the scope of factual disputation, whether by express contradiction or cross-examination; and the salience given to particular matters of factual disputation, including by way of emphasis in addresses. The guiding principle on such matters is as stated by the High Court in Longman v The Queen (at 86): 'The general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.' That is a specific manifestation of the proposition in Crofts (at 451) that: 'The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. '" 31 For the reasons identified in Regina v GPP ([2001] NSWCCA 493), and by Sully J in this appeal, notwithstanding the number of times that the Longman direction has been considered, there still is a sharp division in the High Court (following Doggett v The Queen) as to the circumstances when, and the terms in which, the necessary warning should be given. Additionally, there is the concern upon which I have focused concerning whether or not the warning should be given in terms that the appellant has been forensically disadvantaged on the one hand, or might have been so disadvantaged, on the other hand. 32 It needs to be borne in mind that the direction presently under consideration is but one of a multitude of directions which now fall to be considered by a trial judge faced with the task of summing up to a jury in a sexual assault case. They include: (a) the Murray direction ( R v Murray (1987) 11 NSWLR 12) to the effect that where there is only one witness asserting the commission of a crime, the evidence of that witness " must be scrutinized with great care " before a conclusion is arrived at that a verdict of guilty should be brought in; (b) The Longman direction (as reinforced in Crampton and Doggett ), that by reason of delay, it would be " unsafe or dangerous " to convict on the uncorroborated evidence of the complainant 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. (c) The Crofts direction ( Crofts v The Queen (1996) 186 CLR 427), if a jury is to be informed, in accordance with s 107 of the Criminal Procedure Act , that a delay in complaint does not necessarily indicate that the allegation is false, and that there may be good reasons why a victim of sexual assault may hesitate in complaining about it, then it should also be informed that the absence of a complaint or a delay in the making of it may be taken into account in evaluating the evidence of the complainant, and in determining whether to believe him or her (but not in terms reviving the stereotyped view that complainants in sexual assault cases are unreliable or that delay is invariably a sign of the falsity of the complaint: Crofts at 451). (d) The KRM direction ( KRM v The Queen (2001) 75 ALJR 550) to the effect that, except where the evidence relating to one count charging sexual assault is admissible, in relation to another count or counts alleging a separate occasion of such an assault, the jury must consider each count separately, and only by reference to the evidence which applies to it; balancing that direction, where appropriate, by a reminder that if the jury has a reasonable doubt concerning the credibility of the complainant's evidence on one or more counts, they can take that into account when assessing his or her reliability on the other counts (see Regina v Markuleski [2001] NSWCCA 290 at paras 259-263). (e) Any warning which may be required by reason of a ruling that limits the use of evidence concerning a complaint, or delay in complaint, to the question of credibility (eg under s 108(3) of the Evidence Act as an exception to the credibility rule), or alternatively that allows it to be taken into account (under s 66 of the Evidence Act as an exception to the hearsay rule) as evidence of the facts asserted. (f) The Gipp warning (conveniently so called, although there was divided reasoning in Gipp v the Queen (1998) 194 CLR 106) concerning the way in which evidence of uncharged sexual conduct between an accused and a complainant can be taken into account as showing the nature of the relationship between them, but not so as to substitute satisfaction of the occurrence of such conduct for proof of the act charged; (g) Any warning that may be necessary in relation to the use of coincidence evidence (under s 98 Evidence Act ) where the accused is charged in the one indictment with sexual assault against two or more complainants, requiring the jury to be satisfied beyond reasonable doubt first of the offences alleged in respect of one complainant, and then of the existence of such a substantial and relevant similarity between the two sets of acts as to exclude any acceptable explanation other than that the accused committed the offences against both complainants; (h) A BRS direction ( BRS v The Queen (1997) 191 CLR 275) that where evidence revealing criminal or reprehensible propensity is admitted, but its use is limited to non propensity or tendency purposes, for example those considered proper in that case, then it is to be used only for those purposes and not as proof of the accused's guilt. 33 In combination with the other standard directions customarily given in a criminal trial, and in particular any further warnings which may be required under s 165 of the Evidence Act, a trial judge is faced with a somewhat formidable task in sufficiently directing a jury in this category of case. 34 The jury is similarly faced with a potentially bewildering array of considerations, some of which may appear highly technical, if not inconsistent, to the lay mind and which, in any event, are likely to vex an experienced trial lawyer, even though they related to a simple factual dispute arising very often within a domestic setting. Added to that is the circumstance that any direction, framed in terms of it being "dangerous or unsafe" to convict, risks being perceived as a not too subtle encouragement by the trial judge to acquit, whereas what in truth the jury is being asked to do is to scrutinize the evidence with great care. 35 In all of these circumstances, bearing in mind also the desirability of containing a summing up to an acceptable length; of ensuring its immediate relevance to the actual trial (Regina v Zorad (1991) 19 NSWLR at 91, Regina v Williams NSWCCA 10 October 1990, KRM v The Queen, and R v Chai [2002] HCA 12 at 18); of avoiding unnecessary judicial input into the fact finding process (Azzopardi v The Queen [2001] HCA 24 ); and of paying due respect to the tactical considerations which are best judged by trial counsel in the actual atmosphere of the trial, I consider it timely for there to be a further review of the evidentiary, and other requirements of procedural law that apply to cases of sexual assault, particularly those involving children. 36 As I have observed elsewhere (Regina v Markuleski (2001) NSWCCA 290 at para 244) special considerations do apply in relation to the sexual assault of children and particularly in relation to delay in the emergence of any complaint, and it is not at all clear to me that judges, even experienced trial judges, have any greater insight into this aspect of human behavior than lay citizens. 37 Moreover, it remains the case that, despite procedures involving the use, for example, of closed circuit television to shield vulnerable witnesses from an accused who has assaulted them, it does remain particularly burdensome for any such person to be called on to give evidence for a second time when a new trial becomes necessary for reasons which may have involved little more than a technical failure to deliver, in precise terms one or more of the directions earlier identified, or even a deliberate decision not to do so following a request by trial counsel. The risk of harm to a true victim is only multiplied in such a case. Particularly is that so if, by reason of the trauma potentially involved to the victim in having to go through a second trial, a decision is made to no bill the proceedings. 38 I emphasized that I do not, by these remarks, intend in any way to water down the presumption of innocence, or to make it any more difficult for an accused to have a fair trial. My purpose, while agreeing that the present appeal should be allowed, is to invite consideration of whether or not the number of directions required in this type of case could be reduced, and in particular whether a somewhat less emphatic and invariable direction should be given in relation to the effects of delay, where the aspect of prejudice remains a possibility, rather an actuality, demonstrated either upon the evidence, or because the delay involved could be fairly regarded as inordinate. 39 In summary, in relation to this specific aspect of this appeal, I repeat my concern that the direction currently required amounts to a warning that, in fact, the accused was unable by reason of the delay to test or to meet the prosecution case. Two problems emerge: (a) the giving of such a direction involves a finding of fact that this was the case, whereas it might not be so – indeed it may be positively incorrect; and (b) so far as it involves a finding of fact then it intrudes into the proper role of the jury. 40 Were it not for the binding authority of the decisions of the High Court previously mentioned, I would not have found fault with the directions given in the present case concerning either the need for care in scrutinizing the evidence, or the possible forensic effect of the delay upon the defence. In my view the directions given were clear and meaningful, and such that a jury using its common sense would have understood and applied them to its assessment of the evidence. 41 However, for the reasons identified by Sully J, I agree with the orders proposed by him. 42 SULLY J: The appellant, B.W.T, stood trial in the District Court at Wagga Wagga, and in three separate trials. Each trial was a jury trial; and the presiding Judge in each trial was his Honour Judge Howie QC, as Howie J of this Court then was. In each trial the appellant was charged upon indictment with a variety of offences of sexual misconduct against a named complainant. In two of the three trials, the complainants were daughters of a de facto relationship between the appellant and one, J.M. In the third trial the complainant was a daughter of J.M by a relationship other than her relationship with the appellant. 43 The three trials were heard back to back. The appellant was acquitted by the jury of all the charges preferred against him in the first trial. The appellant was convicted by the jury of all the charges preferred against him in the second trial. The appellant was acquitted by the jury of all the charges preferred against him in the third trial. 44 The complainant in the first trial has the identifying initials D.A.W. In what follows I shall refer to her by those initials. The complainant in the second trial has, also and coincidentally, the same identifying initials. In what follows I shall refer to her simply as "the complainant". The complainant in the third trial has the identifying initials G.H. In what follows I shall refer to her by those initials. The complainants D.A.W and G.H were Crown witnesses in the second trial. 45 In the second trial the appellant was presented upon an indictment containing ten counts. Four of the counts, counts 3, 5, 7 and 9, charged the appellant with the offence of carnal knowledge of a girl of the age of 10 years and under the age of 16 years. As the law then stood, any such offence contravened section 71 of the Crimes Act 1900 (NSW) and attracted upon conviction a statutory maximum penalty of penal servitude for 10 years. A further four counts, counts 1, 2, 4 and 8, charged the appellant with the indecent assault of a female. As the law then stood, such an offence contravened section 76 of the Crimes Act and attracted upon conviction a statutory maximum penalty of penal servitude for 6 years. Count 6 charged an act of incitement to commit an act of indecency. As the law then stood, such an offence contravened section 76A of the Crimes Act 1900 and attracted upon conviction a statutory maximum penalty of imprisonment for 2 years. Count 10 charged an offence of sexual intercourse without consent. As the law then stood, such an offence contravened section 61D of the Crimes Act and attracted upon conviction a statutory maximum penalty of penal servitude for 7 years. 46 When Howie DCJ came in due course to sentence the appellant, his Honour included in his remarks on sentence the following succinct and helpful summary of the essential allegations that had been made at trial against the appellant: "The facts for the purpose of sentence to be found in the evidence of the complainant are that she alleged that between 1976 and 1982 the prisoner indulged himself in a continual course of sexual assaults upon her. Her evidence was that the counts in the indictment did not represent the totality of the prisoner's indecent conduct towards her, but were merely incidents which she could specifically recall in detail. The first count referred to the first time that the complainant was indecently assaulted by the prisoner, and the tenth count arose from the last time that the prisoner sexually abused her. The other eight counts represented four other occasions when she said that the prisoner had, on each of those occasions, acted indecently towards her and then had intercourse with her. The complainant was born in May 1965, and until about 1977 the complainant lived with the prisoner, her mother and her siblings. Around about that time her mother separated from the prisoner, and thereafter the prisoner was the prime carer of the children in the household, being his step children, including the complainant and those children born of the marriage between the prisoner and the complainant's mother. In 1976, when the complainant was aged 10 years, and before her mother left the family, the complainant, the prisoner and the rest of the family were staying at the complainant's grandmother's home over the Christmas holidays. The complainant gave evidence that she shared a bed with the prisoner during that time, and on one occasion she woke in the early morning to find the prisoner touching her on the outside of her vagina. She told the jury she tried to pull away, but he held her tightly and continued this conduct until she started to cry. This incident gave rise to the first count on the indictment. The offence was an indecent assault of a child under the age of 16 years, contrary to the now-repealed s 76 of the Crimes Act , and carried a maximum penalty of 6 years' imprisonment. The second and third counts on the indictment related to an incident which occurred on the complainant's twelfth birthday, which occurred after her mother had left the family. The complainant gave evidence that, during the day's activities, she became saturated with water when she was sprayed by one of her sisters. She went inside and was told by the prisoner to take off her wet clothing and get into bed. She said the prisoner got into bed with her and touched her on the vagina and inserted his finger into her. This conduct gave rise to the second count on the indictment of indecent assault. The complainant said that the prisoner then had sexual intercourse with her by inserting his penis into her vagina. This was the third count on the indictment, being an offence of carnal knowledge under now-repealed s 71 of the Crimes Act , which carried a maximum penalty of ten years' penal servitude. The complainant said that this was not the first occasion when the prisoner had sexually penetrated her. The third incident, which gave rise to the fourth and fifth counts on the indictment, occurred in 1978. The complainant ran away from home and went to stay at a hut near Tumut. She was found by a friend of the prisoner and taken back home. The complainant gave evidence before the jury that the prisoner entered her bedroom that evening and indecently assaulted her, by touching her on the vagina, and then had sexual intercourse with her. This incident gave rise to the counts of indecent assault and carnal knowledge. The sixth and seventh counts also related to an incident alleged by the plaintiff to have occurred in 1978. She gave evidence that one evening the complainant and her sister ………. (DAW) ……..were together in bed with the prisoner when he said to them, 'If you touch each other, I will tell you a secret about Carol'. Carol was a lady friend of the prisoner at the time. Both the children refused to act indecently with each other, and the prisoner then said to the two children, 'Who wants to be first. Whoever goes first gets the longest'. The prisoner then, according to the complainant, had intercourse with her. This incident gave rise to a charge of inciting an act of indecency, and a further count of carnal knowledge. A fifth incident gave rise to the eight and ninth counts in the indictment, and is alleged to have occurred in either 1978 or 1979 after the prisoner had returned from a holiday in New Zealand. The prisoner picked up the children from an aunt's place where they had been staying and, according to the complainant, that night again indecently assaulted her and then had carnal knowledge of her. The tenth count on the indictment was the last occasion that the complainant said she was sexually assaulted by the prisoner. She alleged it occurred in 1982, a couple of days before she finally left the home permanently. The complainant was told by the prisoner on this occasion that it was her turn that night. He went to bed with her and, notwithstanding that she was crying, had sexual intercourse with her. This incident gave rise to a charge of sexual intercourse without consent, contrary to s 61D of the Crimes Act , and carries a maximum penalty of seven years' penal servitude. In effect, the complainant's evidence was that sexual activity occurred between the prisoner and her at least twice a week over the period of seven years to 1982 when she finally left home." 47 The appellant gave evidence at his trial and called witnesses in his case. 48 The appellant's own evidence denied outright all of the allegations of sexual misconduct that were alleged against him. He denied that there had been any occasion when the children had been given alcohol to drink, an allegation that had been made by D.A.W during the course of her evidence in the Crown case. The appellant denied that he had been violent or aggressive with the children; or that he had ever disciplined them by beating them with a belt; or that he had ever taken them in a car to a particular hotel and left them unattended in the car while he drank inside the hotel; all of which allegations had been raised, variously, in the evidence of D.A.W and of G.H, as witnesses in the Crown case. 49 The son of the appellant was called to give evidence that the appellant had never given him alcohol to drink when he was a child, and had never disciplined him with a belt. The son gave evidence that the appellant had previously taken his children to the particular hotel for Christmas parties. 50 A step-daughter of the appellant was called to describe the sleeping arrangements in the complainant's grandmother's home. This witness said that the girls would share a bed, and that her mother and the appellant would share a separate bed. She could not recall where the son slept. She, too, said that the appellant had never given her any alcohol to drink when she was a child; and that he had not ever used a belt to discipline her. She could recall having gone to the particular hotel on one occasion for a Christmas party. She said that the children had never been left unattended in a car outside that hotel. 51 The final witness in the appellant's case at trial was one, Caroline Celles Driscoll, who had been sharing accommodation with the appellant for some 20 years. She said that she had first met the appellant in 1979 when she used to visit him and mind the children for him. She said that she had not noticed on the occasion of any of those visits any alcohol in the appellant's house. She said that she had never seen him discipline his children with a belt; and that she had never seen marks on the children suggestive of their having been beaten with a belt. 52 The following grounds of appeal were notified: "1. There was a miscarriage of justice, in that (a) The learned trial judge erred in refusing the adjournment application made by counsel then appearing for the appellant prior to the trial commencing on 8 December 1999 and the trial miscarried as a result; and/or (b) There is a serious risk that the trial miscarried as a result of pre-trial publicity which deprived the appellant of a fair trial. 2. The trial miscarried as a result of the failure of the trial Judge properly to direct the jury in relation to the extensive delay in complaint. 3. There was evidence not led or not cross-examined upon at the trial which has led to a miscarriage of justice, specifically, (a) There is evidence, not led at trial, of the good character and reputation of the accused; (b) There is evidence, not led at trial, that the appellant had an alibi in relation to the first count; (c) There is evidence, not led at trial, that the appellant had an alibi in relation to the eighth and ninth counts; (d) There is evidence, not led at trial, (i) confirming the appellant's evidence that the witness DAW provided him with a character reference, and (ii) of photographs showing DAW, the appellant and their families, after the alleged events giving rise to counts 6 and 7; (e) There is evidence, not led at trial, refuting a specific allegation made by the complainant, namely that she was struck with a fishing rod by the appellant. 4. The verdict is unreasonable, cannot be supported having regard to the evidence or otherwise represents a miscarriage of justice. 5. The sentence imposed is excessive." 53 The fifth ground thus notified was not pressed at the hearing of the appeal. Ground 1 54 It is convenient to deal together with both limbs of this ground. The relevant facts are as follows: [1] On 6 December 1999 the first trial of the appellant, that is the trial in which the complainant was D.A.W, commenced. [2] On the following day, 7 December 1999, the Wagga Wagga local newspaper, the Daily Advertiser , published an article concerning that trial which was then part-heard. A copy of the article was admitted as Exhibit A1 at the hearing of the present appeal. The article is spread across four columns at the top of the particular page of the newspaper. The article is headed in very prominent and emphasised print: "ALLEGED RAPIST TOLD GIRL HE MISTOOK HER FOR HER MOTHER COURT HEARS" . The ensuing article is not, as these things go, particularly long, and it is convenient to set it out in full: "A 51-year-old Riverina man appeared in Wagga District Court yesterday on charges of sexually assaulting a 10-year-old girl – 24 years after the events are alleged to have occurred. The defendant has been charged with three counts of carnal knowledge of a girl aged between 10 and 16 in relation to incidents alleged to have taken place in the mid-1970s. After Judge R. N. Howie read out the charges, the accused man pleaded not guilty to all three. (The Crown Prosecutor) ………..told the jury of seven men and five women the charges related to three separate incidents that occurred at Cootamundra between February 1975 and February 1976. The first incident is alleged to have occurred when the girl, who cannot be named, was about 10 or 11 and was in Year 5 at school. (The Crown Prosecutor) said this was the first time anything of an 'indecent or sexual nature' occurred. The court heard that after the alleged incident, the man apologised to the girl, saying he had mistaken her for her mother. The only person to give evidence yesterday was the alleged victim, who is now 35. The second charge relates to an incident alleged to have occurred when the girl was in the double bed she shared with her sisters. The complainant said she was about 10 or 11 at the time of the incident, but could not recall the time of year. The final charge related to an incident alleged to have occurred in 1976 when the girl was in bed watching television. When questioned by the Crown prosecutor the woman listed a number of other occasions when she was allegedly sexually assaulted by the same man. She said these assaults began when she was about 10 years old and continued two or three times a week until she was 18. However, the defence barrister questioned the accuracy of the woman's memory, stating the details recounted in court were sketchier than those included in statements she had written in May 1992 and April 1997. The victim denied the defence barrister's claims she was lying. The trial continues today." [3] Later on that same day, 7 December 1999, the appellant's first trial concluded when the jury returned with verdicts of acquittal on all counts in the indictment. It would seem that the verdicts were returned at or about 4.30 p.m. [4] On the following day, 8 December 1999, a further article appeared in the Daily Advertiser . It appeared on a page headed "COURT" . A copy of the relevant page was admitted as Exhibit A2 at the hearing of the present appeal. The relevant portion of the page contains reports of four separate cases. The report of the appellant's trial is the smallest item of the four. It is headed in prominent print: ' NOT GUILTY' ; and reads: "A 51-year-old Riverina man was found not guilty of three charges of carnal knowledge of a girl aged between 10 and 16 when he appeared in Wagga District Court yesterday. On the second day of the trial the jury of five women and seven men retired to consider their verdict at 1 pm and took three-and-a-half hours to find the accused man not guilty of all charges." [5] On that same morning, 8 December 1999, the second, and consecutive trial of the appellant was due to commence. As soon at the Court had assembled, a non-publication order was made and an application was made by the Crown to stand the matter down for 20 minutes. The Crown Prosecutor told the Judge that there was a difficulty arising "following a press report and the evidence of the first count in the trial which concluded yesterday" . There followed a brief exchange between the Crown Prosecutor and the Judge as to possible similarities between matters raised in the first trial, and matters expected to be raised in the second trial. His Honour said that he could see the difficulty; and continued: "That's one of the matters I went through with you yesterday as to how similar the charges were in relation to this child as were the other child. And I suppose there is two things about it, even if the jury did conclude that the same accused involved in similar conduct, of course there was an acquittal in respect of the other matters and that acquittal, as I understand it, was reported this morning. ………………………………… So one doesn't quite know what prejudice might flow or not flow in relation to that. But look, I'll leave it to the parties to think about what might be done. I haven't formed any view as to whether or not I would grant an adjournment if one was sought and, as I understand it, one might be sought in relation to the trial by reason of the press publicity. But it seems to me that the appropriate thing to do at this stage is to give you the time to see if there is some solution which might meet the exigencies of the situation and you might be happy on both sides to proceed. If not, then I will decide whether or not I'll grant the adjournment if an application is made." [6] There ensued a short adjournment. After the Court had resumed the Judge was told that the Crown Prosecutor and counsel then appearing for the present appellant had resolved some of the outstanding issues. Counsel then appearing for the present appellant made thereupon an application for an adjournment. The only thing that is reported of this application, apart from the judgment ultimately delivered in connection with it, is the following: "(Application by accused for adjournment on basis of newspaper articles regarding previous trial, too many coincidences. Crown opposed.)" [7] The Judge gave judgment ex tempore . His Honour briefly related the general background facts. His Honour noted that neither of the two newspaper reports identified the appellant by name. His Honour noted the reference to age, observing that he was not aware of any evidence in the first trial concerning the present appellant's age; and noted, also, that it was not expected that there would be any need to lead in the second trial any evidence of the appellant's age. His Honour then continued: "Certainly there are some similarities in that the offences are of a sexual nature, that the offences in each trial involved the daughter of the accused, and in each trial the offences or some of them relate to a period in 1976. Other than that, as I understand it, the evidence which is going to be presented to this jury is not of a similar nature to the evidence which was presented to the jury in the earlier trial and which was to some extent detailed in the article. I do not believe there is a real risk of a jury in this second trial being unfairly prejudiced against the accused. Firstly, it has to be assumed that a juror has read the article in the paper on Monday afternoon with such an eye for detail that the juror would remember the facts and circumstances set out in that article. With great respect to the newspaper, I very much doubt that a juror would read and retain such detail. Secondly, I think it would be very unlikely that any juror would assume that a person who was on trial on a Monday would also be on trial again on a Wednesday in the same court. Thirdly, the accused was acquitted of the charges yesterday and one assumes that a person who read the article on Monday with such detail as to remember the facts of that particular trial as contained in that article would follow the matter up yesterday and would see that there was an acquittal in the trial. The jury will be directed by me, as I did in the first trial, to determine this matter on the evidence and only the evidence before them, and I am confident that the jury will do so. It has been indicated on many occasions that this Court should accept that jurors will act in accordance with the directions given to them and will not be influenced unduly by material outside the Court. I have no doubt in my mind that the trial should proceed." 55 The following propositions of law are relevant: [1] The nature of the present appeal, correctly understood, is that it is not an appeal against the refusal of the trial Judge to adjourn the trial. The appeal is, rather, an appeal against the convictions which were the ultimate results of the trial. If those convictions are to be challenged successfully, then the appellant must establish, relevantly to Ground 1, that the refusal of the adjournment so clearly entailed an unfair supervening trial, that the ultimate convictions are founded upon a fundamental miscarriage of justice, and should therefore be set aside: The Queen v Maric (1978) 52 ALJR 631. [2] "The central prescript of our criminal law that no person shall be convicted of a crime otherwise than after a fair trial according to law dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial. Ordinarily, that risk will be obviated by appropriate and thorough directions and, if the circumstances also require it, a temporary stay for the minimum period adjudged necessary for the pre-trial publicity to abate. The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary. Nonetheless, one cannot exclude, as a matter of law, the possibility that an 'extreme' or 'singular' case might arise in which the effect of a sustained media campaign of vilification and pre-judgment is such that, notwithstanding lapse of time and careful and thorough directions of a trial judge, any conviction would be unsafe and unsatisfactory by reason of a significant and unacceptable likelihood that it would be vitiated by impermissible prejudice and pre-judgment. In such a case, a permanent stay may be granted. If it is not, a subsequent conviction will necessarily constitute a miscarriage of justice." The Queen v Glennon [1992] 173 CLR 592 per Deane, Gaudron and McHugh JJ at 623 – 624. [3] "It is undisputed that ……………(the trial Judge) ………… was exercising a discretionary power and the principles applicable to the restraint upon intervention by appellate courts have been stated so often as not to require re-statement now. Counsel for the appellant and for the Crown have diligently collected cases which have dealt with complaint about potential prejudice to fair trial by reason of adverse publicity. Each case must turn upon its own facts and the situation was neatly summarised by Street CJ in R v George (1987) 29 A Crim R 380 when he said: 'The principle is essentially one that places responsibility upon the trial judge to determine, in the light of the atmosphere of the trial and the nature and extent of the publicity, whether it is necessary to discharge the jury in the interests of ensuring a fair trial.' " Reg v Channell [2000] NSW CCA 289 per Grove J, (Beazley JA and Kirby J concurring), at paragraph 13. 56 Detailed, thorough and helpful written submissions were put in by learned counsel for the appellant. They propound as follows the essence of the case made for the appellant in connection with Ground 1: "The trials relating to the allegations of D.A.W and G.H were separated from the present trial in order that the jury not be aware that others had made allegations against the appellant and to avoid the unfair prejudice that such knowledge would create. The newspaper article was such that the very prejudice sought to be avoided may have arisen." 57 This written submission was amplified in the oral submissions put by learned counsel for the appellant at the hearing of the appeal. It was contended that the refusal of the adjournment had put the appellant, on the given facts of the particular case, into a position where he was faced in reality with a choice of evils: either he asked for directions, or otherwise raised the question of potential prejudice, in front of the jury, in which case there was a risk that a bad situation would be made worse; or he said nothing, in which case there remained at large the possibility that one or more of the jurors, understandably but improperly had been tainted by the pre-trial newspaper publicity. 58 The appellant did not contend that his case was of the extreme and unusual kind calling for a permanent stay of the proceedings against him in accordance with the principles extracted above from the joint judgment in Glennon. The submission was, rather, that the nature and extent of the pre-trial newspaper publicity were such that there was a risk, so clear and so significant, of unfair prejudice that nothing short of an appropriate temporary adjournment could suffice to neutralise that risk. 59 In my opinion, much depends for present purposes upon the results of a careful consideration of the way in which the learned trial Judge dealt with the problem "in the light of the atmosphere of the trial and the nature and extent of the publicity". 60 In that connection: [1] Before a jury was actually empanelled, his Honour briefly addressed the jurors-in-waiting. His Honour told the jurors-in-waiting, and among other things: "What we require of people who are going to be jurors is for those people to be able to take an objective, dispassionate, perhaps cold view of the facts, or a cold view of the evidence, in order to be able to act as jurors in the matter. And if for some reason there is a difficulty for one or more of you in bringing a dispassionate, or a cold, or a calculating, or an objective view to a determination of evidence in respect of such matters I would ask you to bring that to my attention. ……………………………. (W)hat I do want to know is if searching your conscience and being aware of your public duty to act as a juror in this matter, if there is for some reason you believe that you could not bring a dispassionate, objective state of mind to the determination of this evidence then you should bring that to my attention before we empanel the jury." His Honour then immediately invited the jurors-in-waiting to let him know should it be the case that any one of the jurors-in-waiting recognised, inter alia, the appellant. There does not appear to have been any positive response from any juror-in-waiting. [2] A jury having been, thereafter, empanelled, his Honour addressed the jury prior to the opening address of the Crown Prosecutor. These remarks of his Honour to the jury were extensive. They occupy from the bottom one-third of page 5 of the relevant transcript to the foot of page 14 of that transcript. His Honour told the jury, among other things: "I have indicated to you that these are merely allegations, and that is all they are. They remain allegations until you decide that the allegations have been proved, and you can only do that based upon the evidence. The first thing that you are going to have to try to do is to put out of your minds any preconceptions you might have about matters such as accused people, or criminal trials, or police investigations, and in particular if you have any preconceptions about child sexual assault offences or allegations. (After various further observations in the same vein, his Honour continued as follows.) So try to put out of your mind any preconceptions you might have about such matters. We don't want you to have any view on these things because what we want you to do is to form your own view about these matters based upon what you hear in this court room and not by what you have heard outside the court room by discussion, by rumour or by suggestion. (His Honour then explained to the jury the policy reasons underlying the practice of random selection by ballot of the members of a jury in a criminal trial; and his Honour then continued as follows) . The other reason why we do it in this way, and why we have gone through the procedure of empanelling, is so that we can hope to have members of the public who are not biased, who are not prejudiced, who have no preconceptions, who don't know any of the parties, who have no views about the matter other than the views that they find and form from hearing the evidence in this particular trial. So what you have got to do right at the outset is adopt a mind-set if you like, of cleaning the slate of all of the matters, the baggage if you like, that you might bring with you into this court room based upon media reports you have read or things you have heard about these sorts of matters. Leave only your common sense, your experience of life, your knowledge of people and how they perform, what they do, how they react, and listen to the evidence in this trial as the evidence is given before you and then make your determinations of fact based only upon that evidence. That is in fact what you have sworn to do in your oaths." [3] When his Honour came, in due course, to sum up to the jury, his Honour returned to the foregoing themes. At a very early point in the summing up, his Honour said this to the jury: "Although I have told you that you are the sole judges of the facts, and that you have an almost limitless power when it comes to fact finding, you must not exercise that function capriciously or irrationally. Again the oaths that you took at the outset of the proceedings mean that you must determine all the relevant facts and the verdicts in this matter according to the evidence and only the evidence. It is clear of course in this case the evidence is what the witnesses have said to you in the witness box. As I told you at the outset of the trial, and it is important to remember it now after the evidence has been given, matters of emotion, or bias, or prejudice might have arisen during the course of the evidence, that bias, prejudice or sympathy can have no part at all in your determination of the verdicts in this particular case. You are judges, and acting judicially requires you to act only on the evidence which you should consider from an objective and totally dispassionate point of view." [4] The entirety of the summing up did not occupy any very great length of time. At the conclusion of the summing up, neither the Crown Prosecutor nor counsel then appearing for the appellant sought any re-directions. 61 Applying to the facts as thus summarised, the principles of law to which I have earlier referred, I have come to the following conclusions: [1] During the oral submissions of learned counsel for the Crown, his Honour the Chief Judge at Common Law said this: "Looking with hindsight there was a solution which ought to have been adopted: namely, before the first trial the local media should have been informed that there were back-to-back trials and there should be no publicity until the trials were over. That is the proper approach where there are back-to-back trials, if I may say so. It seems to me the D.P.P should, as a matter of course, suggest to trial judges there be such a request. Otherwise, you always run the risk of something emerging which is going to disrupt the list and delay trials, ……………. ." I am in complete and respectful agreement with his Honour. [2] That simple expedient not having been adopted in the present particular case, this Court must now do the best it can to balance fairly the various competing considerations to which reference is made in the statements of principle earlier herein quoted from the decisions in Glennon and in Channell . The Court is reasonably placed to make an assessment of "the nature and extent of the publicity" ; but it is in no position to make an assessment at all, as the evidence in hand stands, of "the atmosphere of the trial". [3] As to the nature and extent of the pre-trial publicity, it seems to me that, as these things go, the published material was not such as to give rise, on a reasonable view of it, to an apprehension that, in a real and significant sense, the publicity was likely to have prejudiced unfairly the second of the appellant's three consecutive trials. The headline which I have earlier herein quoted from the first of the two newspaper reports was, in my opinion, unfortunate; but, on my reading of the balance of the published material, that material really did no more than report, fairly briefly, and accurately, matters which had occurred in Court; and did so in a way which does not seem to me to have, in any real and significant way, identified, or otherwise unfairly prejudiced, the appellant in connection with his second trial. [4] In any event, I am well satisfied that the repeated and careful directions given by the learned trial Judge were ample to administer any necessary correction to the pre-trial publicity of which complaint is now made. I am strengthened in that view by the following propositions which I draw from the joint judgment of Mason CJ and Toohey J in Glennon : "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. ………………………………………. . To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge." (173 CLR 603) 62 For the whole of the foregoing reasons, I am of the opinion that Ground 1 has not been sustained. Ground 2 63 The relevant facts are as follows: [1] All ten of the counts in the indictment upon which the appellant was tried alleged a very old offence. The earliest offence charged was dated between 1 January 1976 and 28 February 1976; and the latest offence charged was dated between 1 and 31 August 1982. The appellant was arrested on 19 May 1997. His trial commenced on 8 December 1999. The earliest in time of the offences charged against the appellant was alleged, therefore, to have occurred some 21 years prior to his arrest; and 23 years, almost 24 years, prior to the commencement of his trial. The latest in time of the offences charged was alleged to have occurred 14, almost 15, years prior to arrest; and almost 17-1/2 years prior to trial. [2] The cross-examination of the complainant was brief and pointed. It did not follow the conventional line of attack based upon delay in complaint. The essential thrust of the cross-examination, as indeed of the entire case at trial of the appellant, is caught by the opening sequence of the cross-examination which was as follows: "Q. Now ma'am, let's get this clear from the start, these allegations you are bringing today are simply fabrications, aren't they? A. No, they're not. Q. They're simply made up by yourself? A. They are not. Q. There is no substance or truth in them whatsoever, is there? A. There is – it is the truth. Q. Ma'am, isn't it the case that you've brought these allegations for the purpose of getting victim's compensation, that's your reason, isn't it? A. No. Q. You have made a claim for victim's compensation, haven't you? A. Yes. Q. And that's your reason, isn't it, Ma'am? A. No." [3] The appellant's own evidence at trial was, in chief, very brief, being recorded in not quite five transcript pages. The appellant's evidence consisted, essentially, of clear, simple and unconditioned denials of each and every one of the allegations made against him by the complainant. It is the case that at two or three points during his evidence the accused gave answers to the effect that he could not recall some precise particular as to which he was being questioned. His evidence does not read, however, as though he perceived himself to be at any disadvantage, by reason of the passage of time, in answering the questions put to him both by his own counsel and by the Crown Prosecutor. [4] At the end of the first sitting day of the trial, the learned trial Judge had a brief discussion with counsel concerning proposed directions. His Honour asked in particular whether it was desired that there should be a particular direction concerning the absence of complaint. Both counsel indicated that such a direction was desired. [5] The statutory requirements concerning such a direction were expressed, at the relevant time, in the now-repealed s 405B of the Crimes Act 1900 (NSW) . That section provided, relevantly: "Where on the trial of a person for a prescribed sexual offence evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the person upon whom the offence is alleged to have been committed or to suggest delay by that person in making any such complaint, the Judge shall - (a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and (b) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault." [6] His Honour drew attention to the fact that the complainant had not been either examined or cross-examined about the absence of complaint or about delay in complaining. His Honour indicated, as best I can understand the exchanges recorded at T 58 for 8 December 1999, that he was not disposed to give a direction about the absence of complaint, when that issued had not been agitated during the trial. His Honour indicated that, in such a case, he would not give, either, a section 405B(b) direction. His Honour invited counsel to consider overnight what they wished to do in connection with those matters. [7] On 9 December 1999, after the whole of the evidence had been taken, except for the evidence of Caroline Celles Driscoll, and at the end of a short adjournment preceding the taking of that evidence, his Honour returned to the question of directions. The following exchanges occurred "CROWN PROSECUTOR: Just while the jury is coming back, does your Honour propose to say anything about delay? HIS HONOUR: Well I don't intend to unless somebody wants me to. CROWN PROSECUTOR: No, your Honour. HIS HONOUR: It's a bit curious in this case seeing that there's in fact a witness who gives evidence of a particular incident, it's a bit hard then to start to talk about complaint and delay of complaint. CROWN PROSECUTOR; Yes, your Honour. [ACCUSED'S COUNSEL]: The only thing is with delay, is that as your Honour gave a very appropriate direction in the last trial relating to the difficulty for the Defence, you --- HIS HONOUR: I'll do that, I intend to do that. [ACCUSED'S COUNSEL]: Thank you your Honour. HIS HONOUR: I just don't intend to give a direction about complaint or lack of complaint. [ACCUSED'S COUNSEL]: No, well I think that's probably the most appropriate course, your Honour. HIS HONOUR: Well it's up to – you're quite content with that? [ACCUSED'S COUNSEL]: Yes, I am." [8] During the course of the summing-up, his Honour warned the jury that they were "required to scrutinise" the evidence of the complainant, and to do so "with some care before you rely upon it" . His Honour then continued: "When assessing her evidence in relation to these matters of course you have to take into account that these incidents occurred many years ago and that in respect at least of the early allegations that they relate to a period when she was a very young child. You could also, when you are assessing the complainant's evidence and determining whether you can convict the accused on that evidence, the fact that these matters have come to the surface for trial so long after they are said to have occurred and it may now have resulted in some difficulties for the accused in defending himself. By reason of that delay he may have been deprived of the opportunity of finding witnesses who might indicate that what the complainant or her sister says could not possibly have happened. The delay has resulted in some vagueness as to when events occurred. It seems to have perhaps resulted in the conflict between the evidence of ………. (the complainant and DAW)……… as about this incident when they were both in bed with the accused. The vagueness in the evidence, because of the delay, on matters of detail such as the dates really gives the accused little opportunity to rebut what she says except by way of general denial or calling evidence as to these other peripheral matters. And a general denial may sound less convincing than a defence which can attack the substance of allegations made by a complainant shortly after it is alleged that those incidents occurred. Had there been no delay in these particular allegations coming to trial the accused may have been able to bring other evidence which would indicate in some way that what the complainant is saying could not possibly be true either in one respect or more. Because of these difficulties, and because it is the only evidence on which the Crown relies, you have to scrutinise the evidence of the complainant carefully before you can convict the accused upon it. However in giving you that direction be perfectly clear I am not indicating to you my personal view at all about the way you should assess the complainant's evidence or how you should determine the particular allegations in this case. I have told you that I do not intend to convey my personal opinions. I am merely doing what the law requires me to do, and that is to point out to you the importance of the complainant's evidence in your deliberations and matters which might indicate or affect the weight of her evidence before you. Really I am only emphasising matters which are matters of common sense and which you would understand anyway. But I make it perfectly clear you are entitled to convict the accused on the evidence of the complainant alone but only once you have considered it carefully and only if you are satisfied beyond reasonable doubt that she is honest and accurate in relation to any or all of these allegations." [9] There was no application, either by the Crown Prosecutor of by counsel then appearing for the present appellant, for re-directions. 64 The submissions put for the appellant can be stated conveniently by referring, once again, to the relevant written submissions. Those submissions propound the following propositions, omitting references to curial decisions: "5.3 It is submitted that the directions were inadequate in the circumstances of the present case and in particular that, taken as a whole, they did not constitute a proper warning against the dangers of conviction. 5.4 The directions in the present case did not 'warn' or 'caution' the jury. At most the directions constituted a comment on the need to scrutinise the evidence 'with some care' while the circumstances required a strong warning against the dangers of conviction." 65 The propositions thus advanced raise for consideration important questions of principle that have been the subject in recent times of three separate decisions of the High Court of Australia: Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 176 ALR 369; and Doggett v The Queen (2001) 182 ALR 1. 66 The gradual development of this line of jurisprudence in the High Court has given rise to a spate of decisions by variously constituted Benches of this Court. One of those decisions, Reg v Johnston (1998) 45 NSWLR 362 was decided prior to the two decisions in Crampton and in Doggett; but it will be useful for present purposes to refer later herein to some of the observations made in that case. 67 The decision in Johnston apart, the year 2001, to take it as an example, yielded at least the following decisions: The Queen v Dixon [2001] NSWCCA 39; Mason P. Giles JA and Whealy; delivered 16 March 2001; Reg v Roddom [2001] NSWCCA 168; Meagher JA;Sully and Howie JJ; delivered 23 April 2001; Reg v G.J.H [2001] NSWCCA 128; Stein JA, Wood CJ at CL and Studdert J; delivered 24 April 2001; Reg v Ball [2001] NSWCCA 352; Bell and Howie JJ, Smart AJ; delivered 5 May 2001; Reg v Murre [2001] NSWCCA 286; Giles JA, Hulme and Adams JJ; delivered 27 July 2001; Reg v Roberts [2001] NSWCCA 163; Giles JA, Howie J and Carruthers AJ; delivered 5 October 2001; Reg v Folli [2001] NSWCCA 531; Mason P, Sperling and McClellan JJ; delivered 19 December 2001. 68 I do not propose to canvass discursively, in what follows herein, each of those decisions from last year. All of them refer to, are based upon, and, generally speaking, quote extensively from one or more of the three High Court decisions previously herein mentioned. Each turns, ultimately, upon its own particular facts. There are, in one or two of that succession of decisions, occasional observations which seem to me to be useful for present purposes; but those references apart, it seems to me to be more useful to concentrate upon the three High Court decisions. 69 Longman was concerned primarily with the construction and the application of section 36BE of the Evidence Act 1906 (W.A). That section, put simply, effected two changes to the antecedent law in Western Australia: first, the section abolished any requirement, whether by rule of law or by practice, that a Judge presiding at a criminal trial with a jury give in relation to any offence of which the accused person might be liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and secondly, forbade the Judge to give such a warning in any event unless he was satisfied that such a warning was justified in the circumstances of the particular case. 70 Brennan, Dawson and Toohey JJ gave a joint judgment. It is not until the concluding passages of that joint judgment, and only after their Honours had canvassed the proper construction and application of section 36BE, that their Honours added the observations which have given rise to the body of subsequent curial decisions to which I have earlier herein referred. Their Honours said: "But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer [1987] AC, at p.141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay, see Jago v District Court (NSW) ……… and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient." (168 CLR, 91) 71 Deane J and McHugh J gave separate judgments. Their Honours agreed with the ultimate orders proposed by the joint judgment of Brennan, Dawson and Toohery JJ; but each of their Honours reasoned to that common conclusion in a way that is not precisely the same as the reasoning in the passage quoted above from the joint judgment. 72 The considerations that weighed upon Deane J were summarised by his Honour in the following passage of his Honour's judgment: "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 border-line 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 the alleged occurrence required to be scrutinised 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." [168 CLR, 101] 73 McHugh J expressed as follows his Honour's essential process of reasoning: "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 demonstrate 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 step-father. 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 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. 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. 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." [168 CLR, 108, 109] 74 The decision in Longman was handed down on 6 December 1989. On 10 October 1996 the High Court handed down its decision in Crofts v The Queen (1996) 186 CLR 427. That decision concerned the proper construction and application in a criminal trial by jury of section 61 of the Crimes Act 1958 (Vict.). The comments made about the decision in Longman were not directed in any particular way to the statements of principle earlier herein quoted from the joint judgment of Brennan, Dawson and Toohey JJ in Longman. 75 On 31 July 1998 this Court, (Spigelman CJ, Sully and Ireland JJ), handed down its decision in Reg v Johnston, to which I have earlier herein referred. The judgment of the Chief Justice was the subject of a simple concurrence from each of the other two members of that particular Bench. The judgment of the Chief Justice contains an extensive discussion of various post-Longman decisions. That discussion by the Chief Justice is crystallised by his Honour into a series of propositions expressed as follows: "(i) Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. (ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt. (iii) The need for, and content of, any comment will depend on the circumstances of the case. (iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case. (v) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties. (vi) Where the summing-up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate. (vii) In some cases a warning which uses terminology such as 'dangerous' or 'unsafe' to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v)." (45 NSWLR, 375B – F) 76 At the time Johnston was decided, I was of the opinion, and I remain of the opinion, that the propositions thus summarised by the Chief Justice are entirely consonant with the essential reasoning of both the joint judgment, and the two separate judgments, in Longman. It seems to me that the Chief Justice's propositions hold a sensible and practical balance between, on the one hand, the dutiful application of the Longman principles; and, on the other hand, the need to recognise and to maintain the well-recognised principle that appellate review of the summing-up in a criminal trial cannot be, or at least ought not to be, divorced from a prudent and sensible regard to the way in which the particular trial was conducted; and the way in which the issues for trial were articulated, respectively by the Crown and by the defence, for the consideration of the jury. That perception of the Chief Justice's summarised propositions was clearly shared by the Bench of this Court, (Wood CJ at CL, Barr and Greg James JJ), that decided Reg v J.G.W [1999] NSWCCA 116; delivered 23 June 1999. Wood CJ at CL, delivering the principal judgment, refers to the Chief Justice's propositions, and continues, (at paras 58, 59 and 60): "58. It is true that his Honour did not specifically deal with the potential adverse effects for the defence, in relation to the delay in complaint. The case was not one, however, where any specific difficulties were identified that may have affected the ability of the appellant to test the evidence of the prosecution, or to adduce evidence in relation to the counts that were preserved. The defence case was one of deliberate concoction to assist ……….(the particular complainant's ………….) mother in securing a separation. It was on that basis that the trial was fought, and nothing was identified then, or on appeal, to suggest that the appellant might have been prejudiced through delay: cf PAH (Court of Criminal Appeal NSW 18 December 1998). 59. Although it would have been desirable for his Honour to have adverted, in a little more detail, to the aspect of delay, no request for any further warning was made by experienced trial Counsel. 60. In these circumstances I am of the view that sufficient instruction was given to the jury by way of a Murray direction concerning the general need to scrutinise the evidence of the complainant with care ………………, and by the Crofts direction concerning the consistency or inconsistency of conduct associated with the complaint previously mentioned." 77 Absent subsequent authority to the contrary, it would be my view that the approach thus taken by the Chief Judge at Common Law would be precisely and justly applicable to the given facts of the present case. 78 On that approach, it becomes necessary to consider whether the subsequent High Court decisions in Crampton and in Doggett have (a) expanded the horizons of Longman; and if so, (b) have done so in a way that contradicts in whole or in part the propositions summarised by Spigelman CJ in Johnston. 79 The decision in Crampton was handed down on 23 November 2000. As best I can see from the report in the Australian Law Reports, Johnston was not cited in argument, and is not referred to in any of the judgments. 80 Crampton dealt with a number of issues of which the so-called Longman direction was but one. Gleeson CJ approached the non-Longman points in a way that made it unnecessary for his Honour to discuss the effect of Longman upon the facts of Crampton. 81 Gaudron, Gummow and Callinan JJ delivered a joint judgment which contained, among other things, an extensive discussion of Longman. Their Honours noted that the trial with which they were concerned had commenced about 20 years after the alleged events giving rise to it. Their Honours quoted as follows the "comments" initially given to the jury during the course of the summing up at trial: "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." 82 It seems that the trial Judge was asked, at the conclusion of the summing up, to amplify her directions and to give a stronger and more precise direction of the kind which, as it was apparently submitted, was required by Longman. The trial Judge acceded to the submission, to the extent of putting the following amplified directions: "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." 83 The joint judgment, at paragraphs [44] and [45], deals as follows with the submission that the directions given at the trial, even in their amplified form, were inadequate to satisfy the requirements of Longman: "[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 re-direction, 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." 84 McHugh J delivered a separate judgment; but it is brief, and so far as is at present relevant, it agrees with the joint judgment of Gaudron, Gummow and Callinan JJ that the case called for a Longman direction; and that the directions in fact given by the trial Judge did not satisfy that requirement. 85 Kirby J, too, delivered a separate judgment. His Honour, too, was of the opinion that what had been said by the trial Judge was inadequate to satisfy the proper requirements in the particular case of Longman. His Honour discussed at length the requirements that are established, as matters of law, by the decision in Longman. His Honour says, relevantly: [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 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 sometime 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). [126] Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser. [127] The law recognises that there may, on occasions, be cogent reasons why a child or young person does not make a prompt complaint about sexual misconduct. …………………… . It will usually be proper for the trial judge to bring appropriate considerations to the specific notice of the jury by way of comment . Such considerations do not, however, relieve the trial judge of the paramount duty imposed by the law ………………… to ensure the fair trial of a person accused of a serious criminal offence. It is to uphold that basic right, in the context of jury trial, that such judicial warnings must be given. …………………………………………………………………………….. [129] The warning in a case involving a long delay between an alleged offence and a complaint is, in part, an element in the balance required by the law in such matters. In overseas jurisdictions courts have been more willing than they appear to have been in Australia to provide a permanent stay of proceedings to protect accused persons from the injustices that can arise in attempting to mount a defence to such charges years, or even decades, after an alleged offence occurred. But this has been so, in part, because Australian courts know that Longman obliges trial judges, in cases such as the present, not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial. [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 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. [132] The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. The idea is contrary to the repeated authority of this court in and since Longman . The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time – especially great time – may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms." 86 The remaining member of the particular Bench, Hayne J, also discussed in some little detail the Longman point. The relevant portions of his Honour's discussion are as follows: "[139] The evidence before the jury was, therefore, of the kind that is not uncommon in cases of this kind. The complainant alleged that there had been inappropriate sexual behaviour by the appellant. There was no witness to the conduct. It was alleged to have occurred many years ago, when the complainant was young. The appellant denied any misconduct. What instructions should the trial judge give the jury in such a case? [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 allegations. 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 directions. In Longman v R , this court described the instructions that should be given to the jury in these circumstances. …………………… [his Honour then quoted portion of the passage earlier herein quoted from the joint judgment in Longman ] ……………….. . [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." 87 The decision of the High Court in Doggett was handed down on 9 August 2001. Five Justices of the High Court sat to consider the appeal. Gleeson CJ and McHugh J, delivering separate judgments, were of the opinion that the appeal should be dismissed. The remaining three members of the Court, Gaudron and Callinan JJ in a joint judgment, and Kirby J in a separate judgment, were of the contrary opinion. All of the judgments have a great deal to say about the true purport and the correct application of the decision in Longman. The resulting medley of opinions reminds one, if I may so with unfeigned respect, of the observation of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476, when their Honours, having articulated the various purposes of criminal punishment, remark: "They are guideposts to the appropriate sentence but sometimes they point in different directions." 88 Gleeson CJ, having observed that: "(a)s the case was fought, delay in complaining, and any resulting forensic disadvantage to the appellant, was not an issue of which the defence sought to make substantial capital", said at paragraph [10]: " Longman v R is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be 'dangerous' or 'unsafe' to convict on the uncorroborated evidence of the complainant. …………………… ." 89 McHugh J put the point more discursively, but, as I understand what his Honour said, essentially to the same effect as the proposition advanced by the Chief Justice. McHugh J dealt with the Longman point, relevantly, as follows: "[80] What was critical in Longman was that the jury were being asked to convict on uncorroborated evidence of events occurring 20-25 years before while the complainant, then a young child, was asleep or waking. It was a reasonable possibility that, although the complainant was an honest witness, her testimony was mistaken or unreliable by reason of her age at the time of the offences, the long delay in complaining and the fact that she was asleep on the occasions when both offences were alleged to have commenced. The court took the view that the jury may not have appreciated the danger of relying on the evidence of an apparently honest witness concerning events that had allegedly occurred under such circumstances. Thus, the special circumstances of the case required a warning that it was dangerous to convict on the uncorroborated evidence of the complainant unless her evidence was scrutinised with great care. [81] But the present case is very different. There was no chance of the complainant being mistaken. She was either telling the truth or lying. There was very strong corroborative evidence of her evidence. As a general proposition, it cannot be dangerous to convict on the evidence of a person whose evidence is corroborated. Nor did the jury need to be warned that it was dangerous to convict on her evidence because of delay or the circumstances of the alleged offences. That would be tantamount to introducing a new class of suspect witness into the law. Moreover, the delay in this case was not nearly as long as in Longman and the circumstances were very different. The complainant's mother confronted the appellant in 1988, two years after the last offence although nine years after the first offence and there was no chance that the complainant's evidence was honest but erroneous because of the time that had passed." 90 McHugh J made some additional observations which, although not relevant, strictly speaking, to the Longman point as such, have a more general relevance in the light of what I have previously herein written. His Honour said: "[94] The trial judge would certainly have been entitled to comment to the jury that, if the appellant had been given better particulars, he might have been able to show that he was not at the house on any of the alleged occasions. Some trial judges may have thought it necessary to make such a comment. But the law did not require the judge to give a direction to that effect. I think that it is underestimating the intelligence and the worldly experience of jurors to think that as a class they would not appreciate that, in a case like the present, the accused is not in a position to do much except deny the charge. I suspect that most jurors would see the lack of particulars as damaging the Crown, rather than the defence case. [95] The trial judge was in the best position to determine whether this jury needed a direction that the delay may have prevented the appellant from testing the prosecution case or preparing his defence. …………………………… Except where the due administration of justice clearly demands that juries be directed as to particular matters, the contents of summings up are best left to the discretion of those who preside at criminal trials. They are in the best position to determine what needs to be said to the particular jury. [96] The appellant in this case was represented by experienced senior counsel. He did not think it necessary to ask for any directions. That is strong evidence that the trial judge was justified in thinking that there was no need for a comment or direction concerning the appellant's inability to test the prosecution case or prepare his defence. For all we know, counsel for the appellant may have made this point to the jury again and again." 91 The nub of the joint judgment of Gaudron and Callinan JJ is the proposition that the corroborative evidence which had been led at the particular trial had not itself been sufficient to displace the obligation on the trial Judge to give a Longman direction. Their Honours support that proposition upon the basis of seven stated considerations. The fifth and seventh of those considerations are, in my view, particularly relevant for present purposes. The passages in the joint judgment are: "[51] Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, of more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred. [54] Seventhly, the approach of the Court of Appeal involved to some extent an inversion of reasoning. The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary. That exercise should more appropriately be carried out in the overall assessment of the case, if and after error has been established, to enable the court to decide whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied." 92 The remaining judgment, that of Kirby J, contains a lengthy and detailed review of the principles established by the Longman decision, and of the practical implications in particular cases of those principles. It is not possible to compress the judgment fairly into a summary paraphrase. I have attempted, therefore, to pin-point in the judgment some particular paragraphs which seem to me to bear in a particular way upon the problem posed by the present particular case. There are two groups of relevant propositions. 93 The first group of propositions is as follows: "[126] Long delays – obligatory warnings : It would not ordinarily be expected that jurors would be aware of the findings of experimental psychology or of the common experience of forensic contests, and other data supporting the reflections about memory, mentioned in Longman . Judges, on the other hand are, or should be, aware of such matters. That is why, in a case of long delay, a warning must be given to a jury. A comment, or reliance on the comments or arguments of counsel, would not, in such cases, be sufficient. [127] The criterion for the provision of a warning as stated in Longman is not mathematically precise. For example, in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary. However, the longer the delay, the clearer is the obligation to give the warning to the jury along the lines at least of that stated in the joint reasons in Longman . In an appropriate case, it would also be as well for the warning to contain reference to the additional consideration mentioned by Deane J and McHugh J in their separate reasons. [128] The present was obviously a case of 'long delay'. So much was conceded by the prosecution. So much could hardly have been contested given that the warning in Longman itself was required in a case involving comparable delays. Similar warnings have been required in this and other Australian courts in circumstances in which the delay was much shorter than it was in the present case. On the face of things, therefore, a 'full' Longman warning was required in this case." 94 The second group of propositions is: "[134] To ascertain whether, apart from the circumstances of lack of corroboration, warnings of the kind required by Longman are necessary, it is therefore essential to address the particular mischief which the judges in Longman identified. This was the serious forensic disadvantage involved in responding to accusations made many years after events. And, in the case of long delay, it also included the special danger presented by honest, and apparently convincing, but erroneous testimony. It is the special knowledge which judges have gained through legal experience that tends to be brought to the notice of a jury in such cases. [135] Such special knowledge is not necessarily answered by the existence, in a particular case, of some evidence corroborating some, or all, of the complaints in question. ………………….. (W)here (as here) the corroboration is patchy, in some respects unspecific and in others completely silent on the incidents referred to in the charges, the mere fact that corroborative evidence of some kind exists will not entirely remove the utility, and the necessity, of a Longman warning. [136] In a number of cases in state courts the existence of some corroborative evidence has been not to relieve a trial judge of the duty to give a Longman warning where the considerations identified in Longman are or might still be relevant. In my opinion, this is the correct approach. To the extent that a jury might, in their reasoning, rely on an acceptance of the complainant without taking into account the special forensic dangers mentioned in Longman , those dangers will remain. In cases of long delay that fact will impose the duty to give a Longman warning so that the jury will take it into account in reaching their verdict." 95 I have come, based upon the foregoing survey of curial authority, to the following conclusions: [1] The proposition advanced by Gleeson CJ in Doggett v The Queen to the effect that the decision in Longman "is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be 'dangerous' of 'unsafe' to convict on the uncorroborated evidence of the complainant" , is, as I respectfully think, plainly correct on a fair reading of what was actually said in the joint judgment in Longman itself. Notwithstanding that some support is given to Gleeson CJ's proposition by the relevant parts of the judgment of McHugh J in Doggett , I think that the conclusion is unavoidable that, as matters currently stand, all five of the remaining Justices of the High Court do not accept the Chief Justice's proposition. [2] It seems to be a fair inference from the various statements of principle of those five Justices of the Court that they would all accept, at least to some extent, a measure of discretionary flexibility on the part of a trial Judge who is required to give a Longman direction. It seems to me, however, that the majority Justices regard that margin of discretion as being a very narrow one. It seems to be their Honours' position that such a residual discretion is available for the purpose of strengthening what I might describe as the basic Longman direction; but that it is not available so as to water the basic direction down in any way. [3] It seems to me to be a reasonable inference from what their Honours have said that all the current Justices of the High Court, excepting the Chief Justice and McHugh J, take the basic position that in any criminal trial a feature of which is substantial delay in complaint of alleged sexual offences then charged against the particular accused, a Longman direction must be given. Not only must the direction be given; but it must be cast in a form that manifests, and is seen plainly to manifest, certain characteristics which one can draw, as follows, from the various statements of principle in Longman itself and in the subsequent decisions in Crampton and in Doggett : (a) The direction must be cast in the form of a warning . Any form of expression which is thought to have the character of a comment , or even of a caution will not sufficiently comply with what is required by law. It seems to me to follow that any trial Judge who is framing a Longman direction ought to ensure that the direction is framed, in terms, as a warning . (b) That which is to be warned against is, to return to the majority judgment in Longman itself: "that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy" . The approach of the majority Justices in both Crampton and Doggett seems to me to entail that a trial Judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: first , that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly , that it would be, therefore, dangerous to convict on that evidence alone; thirdly , that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly , that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly , that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant's evidence; and sixthly , that every stage of the carrying out of that scrutiny of the complainant's evidence must take serious account of the warning as to the dangers of conviction. (c) Not only must the substance of the warning be carefully and correctly focused, but the form of the warning, also, must be carefully and correctly framed. The form of the warning must be such as bears unmistakably the imprint of the Court's own authority. It must be made clear that the foundation of that authoritative warning of the Court itself is the accumulated experience of the Courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated. A ready example of that will be found in the trial directions in Crampton . (d) In framing the substance of a Longman direction, a Judge must keep in mind not only the guidance given by the joint judgment in Longman itself, but also the additional considerations to which reference was made in their respective judgments by Deane J and McHugh J. (e) The decision in Doggett will mean, in practical terms, that the framing of a satisfactory Longman direction will be a much more fraught and difficult experience in a case where the particular complainant's evidence does not stand entirely alone, but is supported, whether patchily or not, by some other evidence that is capable of being regarded reasonably as corroborative evidence. Those additional difficulties are pointed out clearly and compellingly, if I may respectfully say so, in the following portion of the judgment of Gleeson CJ in Doggett , (see paragraph [9]): "If, by a Longman warning is meant a warning that it was unsafe to convict on the uncorroborated evidence of the complainant, in the circumstances of this case such a warning, to be of practical assistance to the jury, would have required the trial judge to go into the matter of corroboration, to direct the attention of the jury to the evidence capable of being regarded as corroborative and to explain its possible significance. Why would defence counsel invite that? As far as he was concerned, the less said about corroboration the better." The majority Justices, that is to say Gaudron and Callinan JJ in their Honours' joint judgment and Kirby J in his Honour's separate judgment, do not go so far as to say that a Longman direction will always be required notwithstanding that there is evidence capable of corroborating, whether in whole or in part, the particular complainant's own evidence. What their Honours do make plain, is that the availability of such corroborative evidence cannot, of itself , obviate the need for a proper Longman direction. What their Honours appear to be saying is that the availability of such corroborative evidence will require the particular trial Judge to make a painstaking analysis of the way in which, of the extent to which, and of the particular points in connection with which, the corroborative material is effective; and then to decide whether the resulting state of affairs leaves open, notwithstanding the corroboration, such forensic disadvantage as to call for the giving of a Longman direction. (f) The initial trigger for any Longman direction is the passage of time between the alleged offence and first complaint. No doubt, and as Kirby J observes in Doggett , "(t)he criterion for the provision of a warning as stated in Longman is not mathematically precise" . His Honour goes on to say that "in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary" . (emphasis added) His Honour refers in a footnote to Crofts , where the delay between the first alleged offence and complaint was about six years, although there had been offences allegedly continuing until about six months before complaint; and Jones v The Queen (1997) 191 CLR 439, where there was a delay in the order of four years between offence and complaint. On these particular points, Gaudron, Gummow, Hayne and Callinan JJ in the judgments variously delivered by their Honours in Crampton and in Doggett , are not, I think, as precise as is Kirby J. I think, nevertheless, that the prudent inference to be drawn from what their Honours have variously said in Crampton and in Doggett is that they would support, at least generally, the propositions advanced by Kirby J. It is, I think, clear enough that a delay in the order of 20 years would require, imperatively in the view of the current majority opinion in the High Court, a Longman direction, and a strong one at that. What is not clear is whether there is any, and if so what, time lapse that would be generally regarded by current majority opinion in the High Court as not calling for the giving of a Longman direction. While that state of affairs continues, it seems to me that the only prudent approach of a trial Judge is one that regards any delay between offence and complaint as sufficient to raise for consideration the need for a Longman direction. That consideration should concentrate upon two related factors, namely, the actual lapse of time involved in the particular case; and the actual risk of relevant forensic disadvantage in the particular case. It seems to me that, as matters stand, a trial Judge would be well advised to give a Longman direction unless it is possible to conclude reasonably: first , that the particular time lapse is so small that any reasonable mind would regard it as, in context, trifling; and secondly , that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt 1980) 146 CLR 40 at 47), "far-fetched or fanciful". [4] It is a nice question of academic jurisprudence whether the substantive effect of the judgments in Crampton and in Doggett overrules the propositions articulated by Spigelman CJ in Johnston . The two High Court decisions do not themselves shed any direct light on that question. It is, I think, sufficient to say that, as I respectfully think, Spigelman CJ's propositions in Johnston should be approached and applied with some caution, in as much as those propositions seem to me, with respect, to entail a degree, (and, I might add, in my opinion a wholly justifiable and desirable degree), of judicial flexibility which does not sit comfortably with what seems to have become the settled majority view in the High Court. 96 In endeavouring to apply the foregoing discussion, and the principles which are in my opinion correctly to be derived from it, to the directions actually given in the present case by the learned trial Judge, I have kept in mind the practical realities that confronted his Honour on the relevant occasion. His Honour was sitting in a country circuit town, with all that is thereby entailed in terms of limited resources. His Honour was trying a matter, the basic allegations in which were clear and straightforward. His Honour got virtually no assistance from the Bar table in connection with the need for any, and if so what, Longman direction. His Honour was burdened, of course, with the advice given over many years, and both by the High Court and by variously constituted Benches of this Court, to the effect that trial Judges should not be unduly technical or complicated in charging a jury, but should prefer always to express themselves simply and clearly. The directions given in fact by his Honour to the jury seem to me, if I may respectfully say so, to have been both practical and sensible, having regard to the way in which the comparatively short trial had been conducted both by the Crown and by the defence; and to the way in which the issues for trial had been crystallised as between the Crown and the defence. 97 I find it, if I may presume to say so frankly, unpalatable to have to say in such a context that the directions given to the jury do not meet the requirements of the current law in connection with the so-called Longman direction. But, unpalatable or not, I have come to the conclusion that there is no way in which the brief and temperate directions given by his Honour to the particular jury can be accommodated to the requirements established, not only by Longman itself, but by the subsequent decisions in Crampton and in Doggett 98 In my opinion Ground 2 has been established. It follows that there must be, in my opinion, a new trial unless the remaining grounds of appeal, Grounds 3 and 4, raise successfully an acquittal point. Ground 3 99 It seems to me that the points taken in connection with Ground 3 are all new trial points. All of the various pieces of evidence to which Ground 3 points were not adduced at the appellant's trial, but are available to be adduced at any re-trial of the appellant. It seems to me that, in those circumstances, it is not appropriate, Ground 2 having been upheld, to pre-empt what might happen at any re-trial resulting from the upholding of Ground 2. Ground 4 100 The submissions for the appellant propounded the following matters as factors, the combined effect of which required a conclusion that the convictions of the appellant could not be sustained reasonably having regard to the whole of the evidence adduced at his trial: "- The case in respect of 8 of the 10 counts was one of word against word; - In respect of the 2 counts where there was corroboration, there were fundamental and unlikely inconsistencies between the prosecution witnesses as to when and where the incident occurred; - There was no evidence of immediate or recent complaint; - There was an extensive delay between the alleged offence and the trial, between 18 and 24 years in the case of each charge; - There was no independent corroboration of the offences; - (The appellant) denied each of the allegations on oath; - (A particular witness's) evidence suggested the complainant's account in respect of particular allegations (surrounding the complainant's birthday) was wrong; - (The appellant) had no criminal convictions and was a person of good character; - The evidence of (the witnesses called in the defence case) undermined the complainant's evidence with respect to important peripheral matters." 101 The relevant legal principles are not in doubt. They are stated authoritatively in the decision of the High Court: M v The Queen (1994) 181 CLR 487; see in particular per Mason CJ, Deane, Dawson and Toohey JJ at 493-495. 102 In my opinion Ground 4 has not been made good. 103 The issues of fact presented in this trial for the consideration of the jury were few and uncomplicated. There were no half measures in the framing of the defence attack upon the credit of the complainant. There was no suggestion of error in recollection on the part of the complainant. What was suggested, simply and clearly in the complainant's cross-examination, was that she had deliberately concocted the entirety of her allegations against the appellant; and had done so for financial gain to herself. The appellant's sworn defence did not rely upon the lapse of time; or upon any other stated forensic disadvantage resulting from the lapse of time. The appellant's stance could not have been plainer or more simple. His stance was a simple and comprehensive denial of each and every one of the complainant's allegations against him. 104 Notwithstanding what I have said earlier herein in connection with Ground 2, it cannot be denied that the jury was given a clear warning of the need to scrutinise with care the evidence of the complainant before accepting it as, not only honest, but also reliable. The jury must be presumed both to have understood, and to have given effect to those directions. 105 In those circumstances, I do not see any present justification for this Court's now setting aside the verdict of the jury upon the basis that this Court is convinced that the jury, acting reasonably, ought to have had a reasonable doubt about the guilt as charged of the appellant. Orders 106 For the whole of the foregoing reasons, I am of the opinion that the Court should order: [1] that the appeal be allowed; [2] that the convictions recorded and the sentences passed in the Court below be quashed; [3] that there be a new trial of the appellant. Addendum to Judgment 107 In CSR Limited & Anor v Bouwhuis (unreported; Court of Appeal; 23 August 1991), Samuels JA observed: "The role of the judicial dissenter, after the initial protest has been made, is necessarily to maintain a silent vigil in the wings of jurisprudential history. It may remain solitary, or it may culminate in a summons to centre stage. But it does not involve denigrating the current script or booing the players." 108 I do not intend in what follows either to denigrate the current script or to boo the players. I wish, rather and simply, and speaking as one who is called upon to preside regularly over criminal trials with a jury, to draw attention to some practical results for trial Judges of the matters which it has been necessary to discuss in the context of the present particular appeal. 109 In this State a Judge who is presiding at a criminal trial comes to the summing-up burdened with a great deal of appellate judicial advice as to how the summing-up should be framed. Three particular examples will make the point. 110 In Reg v Zorad (1991) 19 NSWLR at 91, this Court, in a joint judgment, gave the following advice: "A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: ……………………………… ." [19 NSWLR, 105E] 111 In Reg v Williams (unreported: Court of Criminal Appeal: 10 October 1990) Badgery-Parker J offered this advice: "It seems to me that it would be regrettable if trial judges have come to feel themselves under pressure to deliver to juries complex lectures on the law. It is my recollection that it used to be the approach of trial judges in many cases to make no attempt to give the jury lengthy explanations of the law but simply to state for the jury in simple terms the issues which by the application of the law to the evidence given were thrown up for their decision and the consequence, in terms of verdict, of the way in which those issues might be decided. That trial judges have departed from that practice may in part be a consequence of over-zealous scrutiny of summings-up by counsel before this court. Obviously there are many cases where the issues are far more complex but in every case, a trial judge should do his utmost to highlight for the jury in language which they are likely to understand the issues that they have to decide. It is in my view rarely necessary to explain the legal principles which give rise to the necessity for the jury to decide the issues thus posed. The judge should take the responsibility of analysing the evidence in terms of his knowledge of the legal elements of the crime charged, and should then take the responsibility of telling the jury what questions or issues it must determine and what are the legal consequences, in terms of the ultimate verdict, that flow from the way in which they determine those issues. ……………………………. It appears to me that trial judges ought to be encouraged to simplify their directions to the jury as far as possible, to avoid lectures on law and unnecessary explanations of legal principles, and, having made clear to the jury the law as to the onus and standard of proof, in most cases to do no more than to identify the issues, stated as simple questions of fact, to which the jury must give attention, and then of course to identify and summarise for the jury the evidence bearing on each of those issues. To the extent to which a contrary practice has developed, I think the time has come for a correction to be made." 112 In Reg v Knight, (unreported: Court of Criminal Appeal: 19 December 1990), Wood J (as he then was) offered this advice: "It may be seen from the foregoing that the appeal was conducted on an exceedingly large number of grounds concerning the admissibility of evidence and the adequacy of the summing-up, the majority of which were not raised at trial. I would wish to reiterate the view expressed elsewhere that the tendency, which I regret is displayed in this case, of a minute dissection of the summing-up and of the conduct of the trial below is to be strongly discouraged: ……………………………. . Such an approach ignores the all-important atmosphere of the trial and is unrealistic and unprofitable. As was pointed out in R v Williams (Court of Criminal Appeal, unreported 10 October 18990), simplicity and directness should be the objectives of a summing-up, and the irrelevant and unnecessarily complex should be discarded. A summing-up has to be read in its entirety, and when challenged the inquiry should be as to whether the law, the evidence and the issues have been left in a way ensuring that the accused has a fair trial." 113 Not always expressed, but always, as it seems to me, underlying such appellate advice to trial Judges, are certain assumptions as to the way in which criminal trials are properly to be conducted in our system of criminal justice. I know of no better or more compelling summary of those underlying assumptions, if I may respectfully say so, than those that will be found in paragraphs [1] to and including [4] in the judgment of Gleeson CJ in Doggett. 114 It seems to me, if I may say so with unfeigned respect, that the combined effect of the decisions in Longman, in Crampton and in Doggett makes it, if not quite impossible, at least extremely and unnecessarily difficult for a conscientious trial Judge when directing a jury, to give dutiful effect, as of course he must do, to the requirements of those decisions, while simultaneously giving effect to the requirement that he be succinct, simple and clear. 115 Suppose that the case is one like Doggett itself, that is to say, a case in which there is some, albeit perhaps patchy, corroboration of at least some parts of the complainant's own evidence. Suppose that counsel for the accused is alive to the forensic problems that are described by Gleeson CJ in paragraph [9] of his Honour's judgment in Doggett. Suppose that counsel for the accused, mindful of that forensic minefield, does not ask for a Longman direction; or, indeed, asks that no such direction be given. Where, it might reasonably be asked, does that leave the trial Judge? There are, obviously I should have thought, only two practical choices. One is to accede to the request that there be no Longman direction. The other is to over-ride that request in the spirit of Pemble v The Queen (1971) 124 CLR 107. If the Judge takes the former course, the current state of the law makes it overwhelmingly probable that any resulting conviction will be upset on appeal. If the Judge takes the Pemble approach, then he will find himself mired inevitably in the very problems of which Gleeson CJ gives warning in the paragraph [9] to which I have earlier referred; and there is raised thereby the prospect that a requirement intended to protect the accused turns out to have in fact exactly the opposite practical result. 116 Suppose, to take another practical possibility, that the trial Judge gives a Longman direction. Suppose that the jury, after retirement to consider its verdict, sends in a note asking the trial Judge whether there is any, and if so what, evidence indicative of any practical difficulty or difficulties in fact encountered by the particular accused by reason of the effluxion of time between the time of the alleged offence and the time of complaint. And suppose that, as in the present particular case, there is in truth not a scintilla of evidence of any such practical forensic disadvantage having been suffered by the particular accused. What, then, is the trial Judge to do? If he tells the jury the simple truth, it is likely to be held that he has thereby destroyed the efficacy of the Longman warning. If he tells the jury that it is no concern of theirs to enquire whether or not there is any such particular evidence; but that they are to proceed upon the simple basis that the experience of the Courts suggests that there has been some such forensic disadvantage, whether or not the particular accused has claimed it, or given evidence of it, the practical likelihood is that the jury will reason that, since it is not possible to see in any concrete way evidence of actual forensic disadvantage, there is no good reason why, as a matter of fact, it should be found that there has been any. In which event the apparent lack in the particular case of any discernible factual underpinning for the Longman direction produces, once again, the result that an intended protection for the accused ceases to afford the accused any protection, and tends rather to have the opposite effect in practice. 117 And, quite apart from the matters raised in the two immediately preceding paragraphs, what guidance, it might fairly be asked by a trial Judge, does the current state of the law give as to the practical definition of the sort of time lapse which justifies, in a real sense, the giving at all of a Longman direction. It is, I should think, simple enough for any trial Judge to grasp the concept, articulated by Kirby J in Doggett, that: "(t)he criterion for the provision of a warning as stated in Longman is not mathematically precise". But what exactly, the trial Judge might find himself wondering, is meant by the proposition that "in a case involving a comparatively short interval between the alleged offence and a subsequent complaint to family members or to authorities, a warning might not be necessary" (emphasis added)? Even after some definition has been given to the fluid concept of "a comparatively short interval", it remains necessary to consider, granted that there has been such a short interval, not whether a Longman direction might or might not be required, but whether such a direction is or is not required. If the Judge approaches that conundrum upon the basis that the determining consideration is the presence of an unacceptable risk of unfairly prejudicial forensic disadvantage, then either the Judge assumes as a matter of law, and notwithstanding the complete absence of relevant evidence, that there has been some such forensic disadvantage; or the Judge refuses to give the direction unless there is in hand at least some credible evidence from which there may be drawn a reasonable inference that there has been, in a sense that is not far-fetched or fanciful, relevant forensic disadvantage. Either way, the answer gives rise, as I have attempted to demonstrate in the preceding paragraphs, to yet further practical problems. 118 There is one additional matter worthy of present consideration. A common sense understanding of the real world suggests that a jury which is given a Longman direction in the form now apparently required, is likely to reason that the trial Judge, although he has stressed repeatedly that it is not for him to tell the jury how the facts should be found, is in fact sending a none-too-subtly coded indication to the jury that the dangers of convicting are such that the jury ought to return a verdict of not guilty. 119 DOWD J: I have read the judgments of Wood CJ at CL and Sully J in draft form. I agree with the reasons of both Wood CJ at CL and Sully J and the orders proposed by Sully J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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