New South Wales Court of Criminal Appeal R v MDB [2005] NSWCCA 354 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 19 October 2005 JUDGMENT DATE: 7 November 2005 JUDGMENT OF: Simpson J at 1; Adams J at 46; Johnson J at 47 DECISION: Appeal dismissed CATCHWORDS: aggravated indecent assault - appeal against conviction - admissibility of evidence - Evidence Act credibility rule - evidence of a prior consistent statement - circumstances leading to statement - directions on complaint and delay Crimes Act 1900, s61M(1) LEGISLATION CITED: Criminal Procedure Act 1986, s294B Evidence Act 1995, s66, s102, s108(3)(b), s136, s192 Crampton v The Queen [2000] HCA 60; 206 CLR 161 Doggett v The Queen [2001] HCA 46; 208 CLR 343 Graham v The Queen [1998] HCA 61; 195 CLR 606 Longman v The Queen [1989] HCA 60; 168 CLR 79 R v DBG [2002] NSW 328; 133 A Crim R 227 CASES CITED: R v Esho [2001]NSWCCA 415 R v Folli [2001] NSWCCA 531 R v KJ [2005] VSCA 153, unreported, 23 June 2005 R v Reardon, Michaels and Taylor [2002] NSWCCA 203 R v Stevens [2001] NSWCCA 330 Stanoevski v The Queen [2001] HCA 4; 202 CLR 115 Crown - Respondent PARTIES: MDB - Appellant FILE NUMBER(S): CCA 2005/1180 W Dawe QC - Crown COUNSEL: T Game SC - Appellant S Kavanagh - Crown SOLICITORS: Giddy & Crittenden - Appellant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/41/0008 LOWER COURT JUDICIAL OFFICER: Urquart DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1180 SIMPSON J ADAMS J JOHNSON J Monday 7 November 2005 REGINA v MDB Judgment 1 SIMPSON J: On 9 March 2004, following a jury trial, the appellant was convicted of a single count of aggravated indecent assault, a charge brought pursuant to s61M(1) of the Crimes Act 1900. The following day he was sentenced to a term of imprisonment of two years and three months with a non-parole period of one year and three months. He now appeals against the conviction. He has not sought leave to appeal against the sentence. 2 Two grounds of appeal have been pleaded and argued. They are: "Ground 1: The trial judge erred in admitting evidence of complaint to [LC, DM] and the complainant's mother ... in September 2001. Ground 2: The trial judge gave inadequate directions and erred in his directions on complaint and delay." the Crown case 3 Given the relatively narrow scope of the grounds of appeal, it is possible to state the Crown case briefly. It is unnecessary to go into fine detail. It was as follows: in March 2001 the complainant was 11 years old. He lived near Bowral with his mother. They were very friendly with the appellant and his family, one member of which was a son (A) the same age as the complainant. In March 2001 the appellant took A and his other son, and the complainant, on a camping trip. While there one evening after the three had gone to bed, the appellant sexually interfered with the complainant, by fondling his penis. The complainant made no protest at the time and the appellant eventually ceased the activity. 4 The complainant did not immediately complain of the appellant's conduct and told nobody about it for six months. He did so in September of that year, initially telling two school friends (LC and TM) and then, at their instigation, his mother. He did this in the context of plans being made for another camping trip with the appellant's family in which the complainant did not wish to participate. the defence case 5 The appellant gave evidence in the trial. He denied the conduct alleged by the complainant and gave an account of the evening in question. The appellant's son A also gave evidence, including some details about the camping trip. This was generally consistent with that given by the appellant. Significantly, A gave quite detailed evidence of the events of the evening on which, on the complainant's account, the offence had been committed. A described some horseplay that involved the three boys running around naked, and the complainant dancing (naked) with a broomstick. According to A, the boys then went to bed in the tent, still naked, and asked the appellant to give them a back rub, which he did for each of the three. A then went to sleep. the trial 6 The complainant's evidence-in-chief was primarily given in the form of audio recordings of two interviews conducted with him by police officers, on 28 September 2001 and 3 October 2001. He was cross-examined from a remote location, in accordance with the procedures prescribed by s294B of the Criminal Procedure Act 1986. Transcripts of the audio-recorded interviews were taken, and marked for identification. It is from these that the bulk of the factual matters to which I have referred, and to which I will refer, are drawn. No issue arises in the appeal concerning these procedures. 7 Prior to the commencement of the trial, the Crown Prosecutor sought a ruling with respect to certain evidence he proposed to adduce from three witnesses, these being the two school friends to whom the complainant had, in September, given an account of the appellant's conduct, and his mother. The trial judge ruled that the evidence would be admitted pursuant to s108(3)(b) of the Evidence Act 1995. Subsequently, pursuant to s136 of the Evidence Act, he limited the use that could be made of the evidence, as relevant only to the issue of the complainant's credibility. He subsequently directed the jury in accordance with that ruling. The decision to admit the evidence gives rise to the first ground of appeal. ground 1 8 The evidence-in-chief of the complainant's two school friends was also put before the jury in the form of audio recordings of interviews conducted with them by a police officer. Each was present at a remote location and available for cross-examination by video link but neither was cross-examined. The audio recordings were transcribed and marked for identification. Again, the substance of the evidence given by these two witnesses has been drawn from those transcripts. LC's evidence was to the effect that, on a date which he did not recall, but which was some time during 2001, the complainant had related to him that the appellant had sexually molested him while he was asleep. TM, who also could not specify the date, gave evidence that the complainant had given an account of sexual molestation by the appellant. The complainant's evidence was that he had disclosed the events to LC and TM on the same day that he told his mother. 9 The complainant's mother gave evidence, including evidence to the following effect. In the middle of September of 2001 she and the appellant and his wife had been planning a camping trip for the approaching school holidays, in October. She mentioned this to the complainant who said he did not want to go because, he said, the beach was boring. On 24 September, while she and the complainant were driving home after school, the complainant said to her: "I don't want to go camping with the [Bs] because last time I went camping [M] put his hand down my pants. I don't want to talk about it." He told her that his friends had advised him to tell her. 10 It was this evidence that was the subject of the ruling under s108(3)(b). 11 In the first of his interviews with police, the complainant said that he had told his two friends of the events, although, like them, he could not recall when he had done so. He said that what precipitated the disclosure was the proposal to go on another camping trip which he did not want to do. 12 S102 of the Evidence Act ("the Act") provides: " 102 The credibility rule Evidence that is relevant only to a witness's credibility is not admissible." 13 There follow, in the Act, a number of exceptions to the general rule. Among these is the exception provided for in s108(3)(b), which is in the following terms: " 108 Exception: re-establishing credibility (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) ...; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement." 14 S192 of the Act provides: "192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 15 Senior counsel who appeared for the appellant at trial acknowledged that it was his intention to attack the complainant's credibility by suggesting expressly that he had fabricated his account of the appellant's conduct, and, indeed, he did so forcefully in the opening questions of his cross-examination. There was no doubt that the intention was to accuse the complainant of deliberately lying about the appellant. The foundation for the admission of the evidence under s108(3)(b) was therefore established. 16 On appeal, however, it has been argued that the decision to permit the evidence to be given was erroneous. 17 It was common ground that the evidence could not be admitted, pursuant to s66 of the Act, as evidence of complaint. This was because, the statements having been made by the complainant six months after the events he related, the occurrence of the events could not be said to have been fresh in his memory at the time he made the representations: see Graham v The Queen [1998] HCA 61; 195 CLR 606. 18 His Honour gave reasons for his decision to admit the evidence. He said: "In arguing against the leave being granted, reference was made to the time period which relevantly passed and although it was conceded that it is outside the Graham case type passage of time, reference was made to what was said by Mr Justice Howie in DBG [[2002] NSWCCA 328] 2002 33 A Crim R 227 at 241, where his Honour has said, inter alia, 'Because the statement is being admitted to meet that particular attack, the timing of the making of the statement generally speaking will be more important than the circumstances in which the statement is made.' His Honour, clearly, in that judgment, drew the distinction between what section 108 sets out to do and otherwise. There is no time constraint within the section but nevertheless, it is a matter which I must take into account, having regard to general principles in any event, but I do not accept the submissions which have been advanced in this regard and to deny to the Crown the leave which is available and which in my view is proper to be given under 108, in my view would be contrary to the interests of justice." 19 The essence of the complaint made about his Honour's approach to the admission of the evidence of all three witnesses on this issue was that he failed to take into account the considerations itemised in s192. Reliance was placed upon the decision of the High Court in Stanoevski v The Queen [2001] HCA 4; 202 CLR 115. Stanoevski is often cited in this Court as authority for the proposition that failure of a trial judge expressly to advert to the five sub-paragraphs of s192(2) indicates error. Indeed, that very submission was expressly made in the appellant's written submissions. The proposition is stated far too widely: see R v Reardon, Michaels and Taylor [2002] NSWCCA 203 at [30]; R v Esho [2001] NSWCCA 415 at [91]; R v Stevens [2001] NSWCCA 330 at [52]. It is the obligation of counsel to draw to the attention of the court any of the s192 considerations that are relevant in the particular case, and the obligation of the court to take into account those (if any) that bear upon the particular matter. In the written submissions filed on behalf of the appellant it was submitted that, at least considerations (a), (b) and (c) of s192(2) raised matters of real substance to the determination of the Crown's application. Counsel forbore to identify in what way any of those considerations would or could have borne upon the outcome of the application. I am satisfied that none of these three matters, had it been expressly referred to, would have made any difference to the outcome. The decision was, of course, made prospectively, in the light of the evidence that was anticipated. The evidence to be given by LC and TM, and the evidence relevant to this issue to be given by the complainant's mother was very short indeed. It could not conceivably be said that that evidence would be likely to add unduly to (or to shorten) the length of the trial. Even if the school friends had been cross-examined, which they were not, the evidence could have added only minimally to the length of the trial. Express reference to consideration (a) would not and could not reasonably have influenced the determination. No doubt that was why no argument to that effect was addressed to the trial judge. 20 No unfairness has been identified in the admission of the evidence. No doubt it helped to strengthen the Crown case. It did not, however, do so unfairly. No unfairness to the appellant, in, for example, being unable to rebut the evidence, was identified. Reference to consideration (b) could not have affected the outcome. That leaves the question of the importance of the evidence – consideration (c). In this respect it must be borne in mind that the evidence was permitted to be given in the context of the expressed intention of senior counsel for the appellant to allege that the complainant had fabricated his allegations against the appellant. 21 Reference was also made to the decision of Howie J in R v DBG [2002] NSWCCA 328; 133 A Crim R 227, and, in particular, to his Honour's conclusion that, where s108(3)(b) is invoked in order to have admitted evidence of a prior consistent statement for the purpose of rebutting an attack upon a witness' general credibility, generally speaking the timing of the making of the statement is more important than the circumstance in which the statement was made. That may be so as a general principle, and I did not and do not dissent from the proposition as stated by Howie J. However, it was not expressed to be universal or absolute. 22 In Graham, the majority in the High Court wrote: "8. ... The exercise of the discretion under s108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication. 9. How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important (see ss192(2)(c)) and would do nothing except add to the length of the hearing (see ss192(2)(a)). And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross-examination, that she was 'making it all up' the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story." 23 Logically, it will often be the case that evidence of a prior consistent statement will assist in the determination of credibility where, for example, the suggestion of fabrication is tied to a time or event or circumstance, and the prior consistent statement can be shown to predate that time or event or circumstance. Thus, for example, if it is put to a witness that he or she has fabricated an allegation of assault as a result of the discovery of the partner's infidelity, that question of fabrication may be rebutted by evidence that, before the discovery of the infidelity, the same assertion or allegation had been made. That is just one illustration of the use that may be made of a prior consistent statement to rebut an attack on credibility made by way of the suggestion of fabrication. But s108(3)(b) is not limited in its terms to prior consistent statements that sit within that fairly common pattern. 24 Here, the evidence that was relevant only to the complainant's credibility was not confined to the evidence of the statements he had made to his school friends and to his mother. The evidence also encompassed the circumstances which led to his making those statements. These circumstances were the prospect that he would be required to accompany the appellant on another camping trip. That, in my opinion, was capable of being very powerful in enabling the jury to understand why it was that he had delayed in his disclosure for a period of six months, but had made his disclosures when he did. It was capable of being compelling evidence in rebutting the suggestion of fabrication, by explaining the context and the circumstances in which he took the course he did. 25 What is of significance in the present case is that the complainant said nothing to anybody of what had occurred on the camping trip – that is, until the prospect loomed that he would be expected to participate again in a camping trip with the appellant. It was in those circumstances that he sought the counsel of his school friends and then made the disclosure to his mother. In my opinion, that is a very compelling explanation for his raising the matter as he did and when he did. His delay in making disclosure was integral in the attack upon his credibility. The evidence was of considerable importance in explaining what might otherwise have been unexplained. In his written argument, senior counsel who appeared for the appellant in this court submitted: "The fact that a complaint was made when the prospect of a further camping trip was looming did not go to the matter here at issue which was the unlikelihood of fabrication. On that subject the circumstances in which the complaint (was) made were relatively neutral." 26 I reject this submission. What was at issue was the complainant's credibility. One aspect of the attack upon his credibility concerned the delay between the events which he alleged had occurred, and his disclosure of them. That could have left the jury concerned about his credibility. To explain that delay, and the timing of the disclosure, was highly relevant. The evidence was, for the purposes of s192(2)(c), of considerable importance. 27 Senior counsel on appeal also argued that in almost every case involving a disputed allegation of sexual misconduct the defence case will in some form or another involve an allegation, either expressly or by implication, that the complaint is fabricated. If the complaint is made at a late stage, so as not to be admissible under s66, then, so the argument went, s108 could not provide a substitute route for admission of the evidence. That may well be so in many cases. But it does not deal with the particular circumstances of the present case. It is not necessary to repeat what I have already said about the particular circumstances which put this evidence into a special category. It is not every case involving allegations of sexual misconduct that will permit evidence to be adduced of late reporting of that conduct. In this case the circumstances were such as to make the evidence admissible. No error is shown in the decision to admit the evidence. Its use was, of course, expressly limited to the assessment of the complainant's credibility. I would reject this ground of the appeal. 28 During the course of oral argument a further submission was made, concerning the adequacy of the reasons given by his Honour. 29 The obligation of a trial judge ruling on questions of the admissibility of evidence is primarily to deal with the arguments that have been advanced, and to elucidate, for appellate purposes and for the enlightenment of the parties, the reasons for accepting or rejecting those arguments, and for admitting or rejecting the evidence tendered. At the trial, the appellant was represented by a highly experienced senior counsel (who was not the also highly experienced senior counsel who appeared on the appeal). In objecting to the evidence trial counsel referred to s192 but made no express submission concerning any of the considerations in subsection (2) of that section. He referred extensively to delay, which may have been intended to suggest that it would be unfair to the appellant to admit the evidence, but if that were the case, it was not clearly so expressed. He did refer to the decisions in Graham and DBG, and to what Howie J said in the latter case concerning the importance of the timing of the prior consistent statement. 30 In any event, no ground of appeal was pleaded raising the asserted inadequacy of the reasons, and none was sought to be added during the course of argument. In my opinion, his Honour dealt adequately with the argument as it had been presented to him. I do not accept that any error has been shown by reason of the nature of the explanation given by his Honour for his decision to admit the evidence. 31 Incorporated in the complaint about this evidence was complaint about further evidence given by the complainant's mother. She said that, having received the information from the complainant, she telephoned the appellant's wife and conveyed to her what she had been told by the complainant. The appellant at that time was away but was expected to return the following day. The following day the appellant telephoned her, saying he wished to discuss what had been said because it was a very serious allegation. She agreed to this taking place at her home. She then gave considerable evidence about the conduct both of the appellant and the complainant, saying, for example, that the complainant did not wish to see the appellant and eventually, when the appellant did arrive, the complainant hid under her bed. The appellant in fact had a conversation with the complainant, as well as with his mother. 32 I do not propose to go into all of the detail of the evidence, either given in chief or in cross-examination. I simply note, as I signalled during the course of argument, that I do not regard this evidence as evidence that was admitted under s108(3)(b). It was evidence that would have been admissible whether or not the disclosures made by the complainant to his school friends and his mother had been admitted. ground 2: directions on complaint and delay 33 The trial judge gave the jury some directions on these topics. He pointed out that the delay in reporting was of about six months. The direction his Honour gave was this: "There are a number of matters about which I need to give you some directions on this. First of all, there was a period of six months ... During that period, human recollection can be affected you might think. And that may have affected the way in which [the appellant] was able to present his case at the trial. As well also, it may have affected those who gave evidence in the Crown case. It is important however that you understand that simply because there is a period, call it delay if you like, that does not necessarily mean that the person in this matter [the complainant] necessarily is not telling the truth. He told you in his evidence that in effect he was embarrassed and it was only because of the planned camping trip to Manning Point that he told his mother what he told his mother." 34 In Longman v The Queen [1989] HCA 60; 168 CLR 79, Brennan, Dawson and Toohey JJ wrote: "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 ... That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient." (internal references omitted) 35 Crampton v The Queen [2000] HCA 60; 206 CLR 161 was another case involving charges of a sexual misconduct, complaints of which were made 20 years after the alleged events. In that case the trial judge had given a direction, at the request of counsel appearing for the appellant, drawing attention to "the very long period" during which there was no complaint, and the lateness of the complaint. She directed the jury: "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." and, later, at the request of counsel: "You must take that into account and the circumstances in which it came into existence and what the complainant ... to say about that. ... 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." 36 The first of these directions, Gaudron, Gummow and Callinan JJ held, was: "... to say too little, too unemphatically, and less than what Longman required be said in the circumstances of this case." The redirection was held to suffer from the same or similar deficiencies. The jury should have been directed: "...that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant." 37 Longman and Crampton were followed in Doggett v The Queen [2001] HCA 46; 208 CLR 343. This case concerned sexual offences said to have been committed between 1979 and 1986, of which complaint was first made in 1998 – a delay of between 12 and 19 years. Finally, reference was made to the decision of this court in R v Folli [2001] NSWCCA 531. Again, this was a case involving lengthy delay – the offences were alleged to have occurred in 1980 and 1983, and to have been first reported by the two complainants (brothers) to police in 1997 and 1998. 38 The trial judge in that case directed the jury that time made it difficult for witnesses completely to recall circumstances and details and that investigations had been made difficult by the delay: " ... not only for the Crown but also for the accused." 39 The judge told the jury that it was not easy to find records or witnesses after that period of time, leading to a situation which may render the evidence unreliable. Mason P, with whom Sperling and McClellan JJ agreed, held that the circumstances of the case demanded a Longman warning, the need for which was heightened by some rather unusual circumstances of the case which are not here applicable. However, one passage in the judgment is of greater significance. Mason P wrote: "22. ... There is a further difficulty with that passage in that it suggests that the Crown case was also entitled to be viewed sympathetically having regard to the problems of delay. The purpose and form of a Longman warning are directed at protecting the accused from being convicted otherwise than in circumstances of heightened jury scrutiny and caution." 40 On the authority of Folli it was imprudent for the judge in the present case to suggest to the jury, as he did in the last sentence of the first paragraph extracted above, that the delay, such as it was, may have affected the prosecution witnesses. It may have been taken as suggesting that the Crown, like the appellant, laboured under a disadvantage created by the delay and that, absent that delay, its case might have been stronger. Equally, however, it may have cast doubt upon the complainant's reliability. I am of the view that, to the extent that the single sentence constituted error, it was an error of no effect. In addition, Mason P wrote: "24. It is well established that one reason calling for a Longman warning is the forensic difficulty encountered by an accused person in a case such as the present, effectively oath against oath, in garnering information and evidence capable of challenging the complainant's account of events long ago. An aspect of this forensic difficulty is the inability to recall information vital to that challenge: unless it can be recalled it certainly cannot be garnered, tested and (if appropriate) proved in the case of the accused person." 41 It is important to observe that the delay in the present case is of nothing like the magnitude of that under consideration in Longman, Crampton, Doggett and Folli. The complainant's mother confronted the appellant with the allegations as soon as she became aware of them. Thus, the appellant was aware, within six months, of the need to take whatever steps were available to him. This was not a Longman case. The appellant was himself able to give detailed evidence of what had occurred on the camping expedition, and to call his son to give consistent evidence. That does not entirely dispose of the point made by Mason P: even after six months, it is possible that memories have dimmed. What Mason P was saying, I think, was that one effect of delay is to obscure the questions which an accused person might ask – to conceal avenues of enquiry that might have been made if the allegations had been immediately brought to the appellant's attention. 42 The rationale for a Longman warning was spelled out by Byrne AJA in R v KJ [2005] VSCA 153, unreported, 23 June 2005, as follows: "The authorities make it clear that a Longman warning should not be understood as the product of any undue tenderness for accused persons or from any suspicion that complainants or, indeed, any class or witnesses are or may be inherently unreliable. It is part of a concession accorded to the prosecution and that very old cases might be permitted to go to trial rather than be stayed for fear that the lapse of time might cause injustice to the accused. It is a warning which is quite separate from the comment or warning which is to be directed to the impact of the passage of time on the recollection of the complainant or other prosecution witnesses or the inference which the jury might draw from the delay of the complainant in bringing the allegation forward." (footnotes omitted) 43 While I have some reservations about that part of this passage which distinguishes the Longman warning from one directed to the impact of the passage of time upon the recollection of the complainant or other prosecution witnesses, I agree that the authorities to which I have referred are concerned with the balance necessary in protecting an accused person against the unfairness resulting from long delayed prosecutions, against the need to resolve serious allegations of sexual misconduct. This simply was not such a case. 44 It is true, in my opinion, that the direction on delay was somewhat cursory and superficial. It should have been more expansive. 45 However, I am not satisfied that it led to any miscarriage of justice. I would dismiss the appeal. 46 ADAMS J: I agree with Simpson J. 47 JOHNSON J: I agree with Simpson J. ********** 18/11/2005 - - Paragraph(s) 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.