Common law warnings

18.70 While it is beyond the scope of the present Inquiry to conduct a comprehensive analysis of common law warnings, submissions and consultations indicate that there are two aspects of the common law which are causing significant concern and warrant attention in the present Inquiry. The first relates to the Longman and Crofts warnings which are commonly given where there has been a delay in the reporting of a sexual assault. The Longman warning requires the trial judge to warn the jury in relation to: first, the forensic disadvantage to the accused arising from delay; and secondly, the effects of delay on the reliability of the witness’ evidence. While given most frequently in sexual assault cases, the Longman warning may be required in any case where there has been a delay in reporting or prosecuting an offence.[139] The Crofts warning, which is given only in sexual assault cases, requires the trial judge to warn the jury that delay in complaint can be used to impugn the credibility of the complainant.

18.71 The second related area of concern is that the common law has effectively established rules of practice requiring warnings to be given in relation to particular categories of evidence.[140] As a result, there has been a significant increase in the extent of appellate intervention into this area.

Delay in complaint

18.72 It was noted earlier in this chapter that sexual assault complainants are among the classes of witness considered by the common law to be inherently unreliable. Sexual assault allegations were said to be ‘very easy to fabricate, but extremely difficult to refute’.[141] The court was therefore required to warn the jury of the dangers involved in acting upon the testimony of sexual assault complainants where it was uncorroborated. Based on the medieval doctrine of ‘hue and cry’, the common law also assumed that a genuine sexual assault victim would make a complaint at first opportunity, and the failure to do so was considered relevant to the complainant’s credibility.[142]

18.73 Research conducted in recent decades has discredited these assumptions. In particular, the assumption that a ‘real rape victim’ will make a complaint at the earliest possible opportunity has been shown to be false.[143] In response to such research, legislative provisions were enacted to remove the common law requirement that judges warn juries that it would be unwise or dangerous to convict an accused of a sexual offence on the basis of the uncorroborated evidence of the complainant.[144] Legislation was also enacted in a number of jurisdictions to require the judge to warn the jury that delay in complaint does not necessarily indicate that the allegation is false and that a person may have a good reason for delaying in making a complaint.[145]

18.74 However, these legislative reforms have been significantly undermined by the development of the Longman and Crofts warnings, which have arguably reinstated a mandatory warnings regime in respect of sexual assault complainants who delay in reporting. The common law warnings in this area raise two broad concerns: first, they risk reinstating the traditional beliefs and prejudices about sexual assault complainants; and secondly, they have created significant difficulties in practice for trial judges and appellate courts.

18.75 In light of these developments, the impact of the laws of evidence on the prosecution of sexual offences, particularly the judicial warnings routinely given in these cases, has been the subject of significant criticism in recent years. Notably, in 2002 the New South Wales Legislative Council Standing Committee on Law and Justice published its Report on Child Sexual Assault Prosecutions,[146] in 2004 the Victorian Law Reform Commission (VLRC) completed its Final Report Sexual Offences: Law and Procedure,[147] and in 2005 the Tasmania Law Reform Institute (TLRI) released an Issues Paper Warnings In Sexual Offence Cases Relating To Delays In Complaint.[148] Further, in December 2004 the New South Wales Attorney General established a Criminal Justice Sexual Offences Taskforce to examine proposed reforms for the prosecution of sexual offences.[149] The proposals emanating from some of these inquiries is discussed below.

Longman warning

18.76 In Longman v The Queen¸ the complainant alleged that her step-father had sexually abused her between the ages of six and ten.[150] The first complaint was made approximately twenty years after the date of the last alleged assault. There was no independent evidence corroborative of the complainant’s allegations. At trial, defence counsel requested that the trial judge give the jury a warning about acting on the uncorroborated evidence of the complainant. The trial judge refused to give the warning on the basis that he was prevented from doing so by virtue of s 36BE of the Evidence Act 1906 (WA). This section abolished the corroboration warning requirements in relation to sexual assault complainants, and prohibited judges from giving such warnings unless justified in the particular circumstances of the case.

18.77 The High Court held that the trial judge has an obligation to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case, and that this obligation was unaffected by the relevant legislative provision.[151] It held that the purpose of the provision was to prohibit the giving of indiscriminate warnings as to the unreliability of sexual assault complainants as a class of witness, but that it did not prevent the trial judge from giving a warning or making a comment in relation to the particular circumstances of the case which might render the complainant’s evidence unreliable. The majority noted:

[Section 36BE(1)(a)][152] does not affect the requirement to warn about other perceptible risks of miscarriage of justice. A warning may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim’s evidence is tendered to prove By force of [s 36BE(1)(a)] alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment in the same way as the evidence of alleged victims in other criminal cases.[153]

18.78 The majority held that there were several circumstances in the case which warranted a comment (as distinct from a warning) by the trial judge, including: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the alleged events, the fact that the complainant had been asleep prior to the alleged assaults, and the absence of complaint. However, the Court considered that:

There is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning … 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.[154]

18.79 The High Court therefore held that the jury should have been warned that, as the evidence of the complainant could not be tested adequately after the passage of time, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, was satisfied of its truth and accuracy.[155]

18.80 An additional ground for giving a warning was identified in the judgments of Deane and McHugh JJ. Deane J considered that a warning was required because the circumstances of the case indicated that there was a possibility that the complainant had imagined the alleged assaults—‘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’[156]—and that questioning the complainant at the time of the alleged assaults may have assisted to distinguish fantasy from reality. Further, it was considered that the long passage of time may have operated to harden the fantasy into the absolute conviction of reality.[157] Similarly, McHugh J held that:

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error … Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine.[158]

18.81 The requirements of Longman have since been reaffirmed and extended by a number of recent High Courtcases. In Crampton v The Queen, the complainant’s evidence was uncorroborated and there was a nineteen year delay in complaint.[159] The trial judge had directed the jury that it should assess the evidence of the complainant with care, particularly in light of the delay and the fact that the delay was potentially disadvantageous to the accused. Defence counsel had not referred to any evidence which the accused was unable to lead because of the delay and made no objection to the direction given at trial. The majority of the High Court held that the Longman warning given by the trial judge was inadequate as it was insufficiently emphatic.[160] As in Longman, the Court held that the trial judge should have instructed the jury that, by reason of the delay, it would be dangerous to convict on the complainant’s evidence alone without close scrutiny of the evidence.[161] Significantly, the majority also held that the trial judge ought explicitly to have mentioned the considerations raised by McHugh and Deane JJ in Longman regarding the fallibility of memory and the risk of fantasy.[162]

18.82 In Doggett v The Queen,[163] the complainant alleged that she had been sexually abused over a period of seven years (between 1979 and 1986), and made a statement to the police to that effect in 1998. There was substantial corroborating evidence, including a taped telephone conversation in which the accused made admissions of a general nature, and evidence from the complainant’s mother and brother supporting her allegations (including the fact that she had complained to her mother of the assaults in 1990). At trial, defence counsel did not request a Longman warning, presumably on the grounds that the warning would have been put in corroboration terms (as in Longman and Crampton) and hence would have drawn the jury’s attention to the corroborating evidence.[164]

18.83 The majority held that the need for a Longman warning where there has been a substantial delay in complaint is not obviated by the existence of corroborating evidence.[165] Kirby J agreed with this proposition, and further stated that warnings should be given in cases of long delay wherever the dangers described by Deane and McHugh JJ in Longman (that ‘the memory of even an honest witness might become contaminated’) exist.[166]

18.84 Gleeson CJ and McHugh J dissented on the grounds that defence counsel had not sought to make an issue of forensic disadvantage arising from delay at trial and had not sought a warning.[167] Further, their Honours did not consider that the circumstances of the case warranted a warning. Gleeson CJ pointed out that ‘a warning that it would be unsafe to convict on the uncorroborated evidence of the complainant would have had no practical relationship to the task confronting the jury’ as the evidence was corroborated.[168] McHugh J pointed out that the circumstances of the case were significantly different to those of Longman.

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 … there was no chance that the complainant’s evidence was honest but erroneous because of the time that had passed … It would be a mistake to think that, in every case where there has been a delay— even a long delay—a trial judge is bound as a matter of law to direct the jury that the accused had lost the opportunity of investigating the circumstances surrounding the offences … Jurors don’t need judges to tell them that the accused is not in as good a position to defend the charge as he or she would have been if the complaint had been made promptly.[169]

18.85 In R v BWT, counsel for the accused sought a Longman warning in relation to unspecified forensic disadvantage arising from delay. The trial judge commented to the jury that the delay in complaint ‘may have resulted in some difficulties for the accused’ and that this was a matter of ‘commonsense’.[170] On appeal it was argued that the direction given was inadequate as it was cast as a caution rather than a warning and was insufficiently emphatic as to the dangers of convicting as a result of the delay.

18.86 The New South Wales Court of Criminal Appeal held that, although it considered the direction given by the trial judge adequate in the circumstances of the case (particularly in light of the fact that the accused had not identified any forensic disadvantage suffered or made any significant argument in relation thereto), it was bound by High Court authorities to hold that the trial judge had misdirected the jury on two grounds: first, the direction was cast in terms of a comment rather than a warning; and secondly, the direction did not convey that the accused had in fact suffered forensic disadvantage due to the delay. Wood CJ at CL commented that the combined effect of Longman, Crampton, and Doggett 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 therefore that a warning to this effect must be given irrespective of whether the accused has in fact been prejudiced in this way.[171] His Honour considered that, while a warning may be necessary, casting it in such unequivocal terms is misleading in cases where the accused is in fact guilty or in cases where the absence of contemporaneity has not deprived the defendant of the opportunity to call rebuttal evidence—for example, in cases where, no matter what inquiries are made, the case is word against word.[172] On this basis, Wood CJ at CL said that it would be preferable to give the warning in terms that the defendant ‘might have been forensically disadvantaged’, rather than ‘has been forensically disadvantaged’.[173]

18.87 As to the required content of the Longman warning, Sully J stated in BWT that:

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.[174]

18.88 It is of note that this warning is remarkably close to the full corroboration warning previously required at common law. Although earlier authorities interpreted the requirements of the Longman warning less strictly,[175] the above statement by Sully J was endorsed by Kirby J in Dyers v The Queen as ‘a correct statement of the present law … It is, and it is expressed to be, strict’.[176]

18.89 Kirby J observed in Doggett that ‘the criterion for the provision of a warning as stated in Longman is not mathematically precise’.[177] Indeed, there has been uncertainty as to the kind of delay that will necessitate the warning. As indicated in the following statement by Sully J in R v BWT, this uncertainty means that some judges feel compelled to give warnings where they are not considered necessary in order to ‘appeal-proof’ decisions.

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 … ‘far-fetched or fanciful’.[178]

18.90 This uncertainty has been compounded by the conflation of the two limbs of the Longman warning. In Robinson v The Queen, the High Court held that a three year delay gave rise to a requirement for a warning:

[T]here were particular features of the case which demanded a suitable warning. Without seeking to describe these features exhaustively, they included the age of the complainant at the time of the alleged offences, the long period that elapsed before complaint, which in turn meant that it was impossible for a medical examination to verify or falsify the complaint, and the inconsistency in some aspects of the complainant’s evidence as to whether penetration occurred … An important aspect of the inconsistency and uncertainty about the matter of penetration was that the complainant said he was asleep when the first act of penetration occurred, and that he woke up while it was going on. Finally, some features of the history of complaint may have indicated a degree of suggestibility on the part of the complainant.

Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt.[179]

18.91 The above passage suggests that a shorter period of delay will attract the requirement for a Longman warning where there are other factors perceived as affecting the reliability of the witness’ evidence. In considering the two limbs of Longman as factors which may in combination create the need for a warning, the High Court appears to have exacerbated the uncertainty as to the kind of delay that will necessitate a warning. It also appears to have moved a considerable way from the rationale underpinning the majority judgment in Longman, whose legitimate concern was that after a period of considerable delay (in that case, a delay exceeding twenty years), an accused may face significant obstacles in mounting a defence. In light of research which demonstrates that there is no logical nexus between delay in complaint and the credibility of the complainant,[180] forensic disadvantage potentially arising from delay is an issue which must be considered independently of the credibility of the complainant. Further, as noted by the Tasmania Law Reform Institute (TLRI), the matters identified by Deane and McHugh JJ as warranting a warning reflect discredited assumptions as to the reliability of memory, particularly that of children.[181] Hence, unless there is positive evidence demonstrating otherwise, it is generally misleading and unfair to a complainant to give warnings on the latter basis.[182]

18.92 There is also uncertainty regarding the necessary strength and delivery of the warning.[183] Some authorities have emphasised that no particular words are required as long as the essential purpose of the warning is performed.[184] However, other authorities have held that it will be essential to use the words ‘dangerous to convict’ in most cases of delay.[185] In R v SJB it was held that the failure to use the words ‘dangerous to convict’ can give rise to a miscarriage of justice, even if the trial judge has met the requirements of the Longman warning in every other respect.[186] Similarly, in R v GJH, the appeal was upheld on the grounds that, although the warning was comprehensive, it was not firm enough and the words ‘dangerous to convict’ were necessary in the circumstances of the case.[187] In R v Roddom, the appeal was upheld on the ground that the trial judge had undermined the effect of the warning by also referring to the complainant’s reasons for delay.[188]

18.93 The giving of the warning in the terms ‘dangerous to convict’ has been criticised on the basis that it encroaches improperly on the fact-finding task and risks being perceived by the jury as a ‘not too subtle encouragement by the trial judge to acquit’.[189] The view is supported in submissions and consultations.[190] The view is also expressed that the words ‘dangerous to convict’ are unnecessary in this context, and that the warning need only refer the jury to the factors which might reasonably be regarded as creating forensic disadvantage.[191]

18.94 The uncertainty as to its application, combined with the prescriptions of the High Court in Longman, Crampton and Doggett, means that trial judges are left with little discretion as to whether to give a Longman warning.[192] In R v LTP, Dunford J expressed the view that

it is preferable to give the directions, even if the judge considers one or more of them unnecessary in the particular case, rather than have convictions upset on appeal because of the failure to give them.[193]

18.95 In seeking to appeal-proof decisions, trial judges are often motivated by concern about the consequences for the complainant of the conviction being overturned on appeal, such as having to undergo a retrial.[194] However, the unintended effect of this ‘if in doubt warn’ policy may be to give the appearance of judicial imprimatur to the recasting of sexual assault complainants as a suspect class of witness.[195]

18.96 Further, the effective removal of the discretion of the trial judge, who is arguably in a far better position than an appellate court to determine whether a warning is necessary in the particular circumstances of the case, operates to undermine his or her capacity to give practical advice to guide jurors.

So much depends upon what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much, too, depends upon the judge’s view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent, to redress the balance.[196]

18.97 The giving of warnings in circumstances where they are of little relevance is in fact likely to be counter-productive, potentially confusing the jury and detracting from the trial judge’s ability to emphasise the issues relevant to the particular case. It is therefore difficult for trial judges, particularly in sexual assault cases where a multitude of warnings is required,[197] to give directions which are clear, intelligible, relevant and brief, and which are also insulated from appeal.[198]

18.98 It was noted earlier that the High Court has held that a Longman warning may be required, irrespective of whether counsel has requested that a warning be given.[199] In R v MM, Levine J expressed concern about the development of a ‘forensic culture’ in which counsel remain silent on the issue of warnings during the trial on the assumption that a deficiency in any directions will be considered to go to the ‘heart of the matter’ and amount to a miscarriage of justice.[200] This is problematic in that it dilutes the responsibility of trial counsel to raise potential errors at the time of summing up, which also potentially allows defence counsel to reserve deliberately non-direction or misdirection as an avenue of appeal in the event of a conviction.[201]

18.99 Another practical difficulty arises where counsel strategically chooses not to seek a warning or in fact requests that one not be given. Sully J pointed out in BWT that the trial judge has two choices in these circumstances, neither of them satisfactory: the first is to accede to the request not to give the Longman warning and face the likelihood that any resulting conviction will be overturned on appeal due to the failure to give the warning; the second is to override counsel’s request in order to insulate the conviction against appeal, thereby undermining any tactical decision made by counsel and potentially disadvantaging the defendant.[202]

Proposals for reform

18.100 Broadly, there are two options for reform to address the concerns raised in relation to the Longman warning. The first is to legislate to abolish the warning in its entirety. The second is to legislate to clarify, modify or limit its operation.

18.101 The principal arguments in support of abolishing the warning altogether are that: first, the warning in relation to forensic disadvantage arising from delay is unnecessary as any such prejudice will be made plain to the jury by defence counsel during the course of the trial; and secondly, the warning in relation to the fallibility of memory and the risk of fantasy has no basis as it reflects discredited assumptions as to the reliability of sexual assault complainants—children in particular.

18.102 In favour of legislating to clarify or limit the warning, it can be argued that, although the current operation of Longman is problematic, such warnings may be necessary in some circumstances in order to ensure that the accused receives a fair trial.

18.103 In its 2004 Report Sexual Offences, the VLRC recommended that the Longman warning should be restricted to circumstances where there is evidence to justify the giving of such a warning and proposed the following legislative amendment:[203]

(c) The judge must not state, or suggest in any way to the jury that it is dangerous or unsafe to convict the accused, unless satisfied that:

(i) there is evidence that the accused has in fact suffered some specific forensic disadvantage due to a delay in reporting; or

(ii) there is evidence that the accused has in fact been prejudiced as a result of other circumstances of the particular case.

(d) If the judge is satisfied in accordance with sub-section (c) that a jury warning is required, the judge may warn the jury in terms she or he thinks appropriate having regard to the circumstances of the particular case.

(e) In giving a jury warning pursuant to sub-section (d), it is not necessary for the judge to use the words ‘dangerous or unsafe to convict’.[204]

18.104 It also recommended a legislative provision to prohibit the trial judge from making any comment on the reliability of the evidence given by the complainant unless the circumstances of the case indicate that such comment is necessary to ensure a fair trial.[205]

18.105 In its Issues Paper, Warnings in Sexual Offence Cases Relating to Delays in Complaint¸the TLRI questioned whether the VLRC proposal would operate to displace the requirement to give the Longman warning in its current form. It did so on two bases: first, it does not proscribe the use of the ‘dangerous to convict’ formula, and it is therefore possible that judges will adhere to this formulation in order to avoid appeal; and secondly, the VLRC proposal permits a Longman warning to be given where there is evidence of some specific forensic disadvantage suffered by the accused, and this proposal will not necessarily displace the reasoning in Longman, Crampton and Doggett that an accused necessarily suffers a forensic disadvantage by reason solely of the delay.[206] It suggested that reform in this area might need to take a more mandatory or prescriptive form as

the cases to date demonstrate a clear trend on the part of trial judges to ‘retreat to the safety’ of issuing Longman warnings whether truly warranted or not in order to insulate their jury directions against appeal.[207]

18.106 The TLRI suggested two alternatives to the VLRC proposal. First, it suggested a legislative amendment which states that: (a) no presumption is to be applied that delay in complaint alone has disadvantaged the accused; and (b) a warning in Longman terms is only to be given where the existence of a specific forensic disadvantage is established on the balance of probabilities (and that disadvantage is not established by the mere fact of delay). Alternatively, it suggests a provision which states that a Longman warning can only be given where there are ‘exceptional circumstances’ (which cannot be established by delay alone).[208]

Submissions and consultations

18.107 In DP 69, the Commissions asked whether the recommendations proposed by the VLRC or the TLRI in relation to the Longman warning (or any other models) should be adopted under the uniform Evidence Acts.[209]

18.108 Some support is expressed for the view that there is no need for Longman warnings to be given, as these are matters that defence counsel can bring to the attention of the jury during the course of the trial and again in the closing address to the jury.[210] On the other hand, some contend that Longman deals with fundamental issues of fairness that go beyond arguments between the parties, and that information as to the effects of delay on the ability of an accused to prepare a defence must be conveyed with the imprimatur of the court.[211]

18.109 There is considerable support in submissions and consultations for abolishing the warning in its current form and legislating to clarify the operation of the warning, limiting its application to cases where defence counsel demonstrates that a particular forensic disadvantage has been incurred.[212] It is argued that if the accused is not required to point to some particular disadvantage, as opposed to nebulous disadvantage arising from delay, such warnings will continue to be given as a matter of course.[213]

18.110 Some submissions express a preference for the TLRI proposal.[214] In particular, Victoria Police supports the recommendations made by the TLRI on the basis that they

provide more clarity for judges in giving directions to juries and also provide a platform for fewer grounds for appeal as it has been noted that appeals have been escalating on the basis of inadequate warnings.[215]

18.111 On the other hand, the view is expressed that in practice it will be difficult for an accused to prove that there has been a forensic disadvantage, because the delay will have deprived the accused of the opportunity to investigate any exculpatory evidence at the time of the alleged commission of the offence.[216]

18.112 The New South Wales Attorney General’s Department (NSW AGD) agrees that a warning will be necessary in some cases, but that the unequivocal manner in which the Longman warning is given has wrongly created an irrebuttable presumption that the accused has in fact been prejudiced. It considers that any legislative amendment should give the trial judge the discretion to give the warning where there is ‘inordinate delay [such as 20 years]’ and a corresponding lack of detail in the charge of the alleged offence.[217] The NSW AGD also notes that where there is delay in the complaint, the prosecution faces the same forensic difficulties as the defendant. It argues that any warning in relation to delay should also address the difficulties faced by the prosecution in cases where there is credible evidence supporting the evidence of the complainant.[218]

18.113 The NSW DPP also considers that the Longman warning is problematic in that it is ‘unequivocal’, and submits:

The more logical approach in relation to the effect of delay is that represented in R v GPP [2001] NSWCCA 493 which would permit the warning to be given in terms that the delay “might have created forensic difficulties” for the accused in meeting the complaint. Alternatively it might be confined to the case where there is at least some positive evidence of disadvantage to the accused presented to the jury.[219]

18.114 On the other hand, the NSW PDO submits:

These proposals would restrict judicial comment to a direction that the evidence of the complainant be considered with great care. This direction in isolation is meaningless … The key direction in the Longman direction is that it would be dangerous to convict the accused on the evidence of the complainant alone.[220]

18.115 Victoria Legal Aid considers that the concerns raised by the Longman warning are not amenable to legislative solution. It suggests that there should be judicial education programs to assist judges to determine when it is appropriate to give a warning and to tailor the warning to the particular circumstances of the case:

[T]hese outcomes result from judicial difficulties or errors in applying the common law. Judicial error in applying the common law is something that can and should be properly addressed by a Court of Appeal. It is difficult to see how the abolition or limiting of the Longman warning will lead to fewer appeals. Given the overriding obligation of the court to ensure a fair trial and to make whatever comments appropriate in the circumstances in the interests of justice, appeals are likely to remain a significant feature of our criminal justice system. VLA firmly believes that this is not only desirable but also entirely appropriate.[221]

The ALRC & VLRC’s view

18.116 Given the myriad concerns regarding the current operation of the common law Longman warning outlined above, the ALRC and VLRC are of the view that this area of the law requires amendment. The pressing need for reform is indicated by a number of judicial statements in appellate judgments[222] and is supported in a considerable number of submissions and consultations. The considerations involved in each of the two limbs of the Longman warning differ significantly, and hence it is proposed to address these on an individual basis.

Forensic disadvantage

18.117 In relation to the first limb of Longman, the ALRC and VLRC are of the view that where there is forensic disadvantage arising from lengthy delay, a warning may be necessary in the circumstances of a particular case in order to ensure that an accused receives a fair trial. However, the ALRC and VLRC consider that the concerns raised above indicate the need for legislative amendment to limit the circumstances in which the warning is given and to clarify its operation.

18.118 As noted earlier in this chapter and in Chapter 2, one of the policies underpinning the present Inquiry is that the uniform Evidence Acts should be of general application and should generally not contain provisions which apply only to specific offences or specific categories of witness. Therefore, the question arises as to whether it is appropriate to address the concerns raised by the Longman warning in the uniform Evidence Acts or in legislation dealing specifically with sexual assault offences.

18.119 The forensic disadvantage which may be occasioned to an accused by delay arises independently of the nature of the proceedings, and accordingly the courts have held that a Longman warning may be required in any case where the conduct of the defence has been affected by delay.[223] The nature of sexual assault prosecutions is such that delay is more likely to arise in this context, however it is clearly not confined to such cases. Although some of the authorities discussed earlier in this chapter conflate the issue of delay with the reliability or credibility of sexual assault complainants, the ALRC and VLRC are of the view that this is erroneously done. The enactment of a statutory provision of general application may therefore assist to reinforce the fact that forensic disadvantage, for this purpose, is an issue which should be considered independently of the credibility of the complainant. The ALRC and VLRC therefore consider that it is an issue appropriately dealt with in uniform evidence legislation.

18.120 While it will be necessary in some cases to give a warning in relation to forensic disadvantage arising from delay, the breadth of the application of the Longman warning is problematic. There is considerable evidence that Longman warnings in relation to the effects of delay are given almost routinely, and in circumstances where the delay is of relatively short duration.[224] As a matter of policy, warnings should only be given in cases where they are considered appropriate and necessary in order to assist the jury to evaluate fairly the evidence before it. Warnings should also be tailored to the circumstances of the individual case. The giving of warnings in a ritualistic fashion with no apparent relevance to the circumstances of the case is likely to operate to the disadvantage of both parties, obscuring issues of greater significance.

18.121 The ALRC and VLRC are of the view that there should not be an irrebuttable presumption of forensic disadvantage arising from delay, and that warnings in relation to forensic disadvantage arising from delay should only be given where there is an idenfiable risk of prejudice to the accused. Such prejudice should not be assumed to exist merely because of the passage of time.

18.122 The ALRC and VLRC note that some submissions have argued that the nature of delay means that the accused will necessarily have suffered a forensic disadvantage. However, the general or nebulous disadvantage that an accused might suffer need not in most cases be the subject of a judicial warning, as this is an issue that can be raised by counsel in address. It is not necessary that it be underscored by the trial judge. The prosecution will have also suffered a general disadvantage due to the delay, which impacts on the ability to satisfy the burden of proof. Where the delay is of considerable length, such as the delay which arose in Longman, the accused will often face an identifiable significant forensic disadvantage. However, the judge should not give a warning simply because there has been a delay which gives rise to hypothetical disadvantage. A warning should not be given unless the delay has placed the defendant at a significant forensic disadvantage and the particular risks of prejudice must be identifiable.

18.123 In giving such a warning, the trial judge should identify the particular circumstances which have created the forensic disadvantage and explain their significance for the accused’s case. In order to avoid unnecessary technicality and to ensure that such warnings are tailored to the circumstances of the individual case, no particular formula or words should be required. Where the substance of the warning requirement has been complied with, there should not be scope for appellate review on technical questions of form. However, this would not prevent an appellate court from finding that a miscarriage of justice had occurred as a result of a warning considered to be substantively inadequate in the circumstances of the particular case.

18.124 Further, the trial judge should not suggest or use words to the effect that it is ‘dangerous or unsafe to convict’. These words constitute an unnecessary encroachment on the fact-finding task and are open to the risk of being interpreted as a direction to acquit. The TLRI suggests that it might be necessary to adopt a proscriptive approach to reform in this area, in order to displace the practice of using the ‘dangerous to convict’ formula. The ALRC and VLRC agree that it is appropriate and necessary to prohibit the use of this phrase.

18.125 In light of the practical problems faced by trial counsel and appellate courts due to the fact that the Longman warning is currently required whether or not requested or desired by trial counsel, the Commissions consider that the warning should be subject to a request requirement. Appellate courts will retain the power to overturn a decision on appeal on the basis that the failure to give a warning has resulted in a miscarriage of justice. However, it is intended that when considering such questions, appellate courts will have regard to the requirements of the legislative provision, rather than the common law previously applied. Where forensic disadvantage arising from delay has not been raised as a significant issue at trial, or where defence counsel has deliberately not requested a warning, these are considerations which will weigh against the upholding of an appeal on this ground, unless it can be established that defence counsel was incompetent.[225]

Factors affecting the reliability and credibility of the witness’ recollection

18.126 The second limb of the Longman warning requires the trial judge to warn the jury about the risk of fantasy and the potential for delay, emotion, prejudice or suggestion to distort recollection.[226] As noted earlier in this chapter, the considerations raised by Deane and McHugh JJ reflect discredited assumptions about the reliability of sexual assault complainants, children in particular, which cannot be sustained in light of recent empirical findings. Research demonstrates that while memory of ordinary events is affected by the passage of time, memory involving emotional or traumatic events differs significantly in relation to retention and accuracy. Specifically, studies have shown that memories of emotionally arousing events are likely to be more accurate and retained for longer than memories of ordinary non-emotional events, although peripheral details (such as precise dates and times) may not be recollected.[227] In light of such research findings, the ALRC and VLRC consider that there is limited scope for such a warning to be given.

18.127 The scope of the second limb of the Longman warning has been expanded beyond the considerations identified above, and the warning is given in relation to other factors said to affect the reliability of the complainant’s evidence.[228] While the Commissions recognise that it is necessary for the trial judge to retain the power to give warnings in relation to questions of reliability where these may not be apparent to the jury, it is generally inappropriate to give warnings about the particular aspects of a witness’ evidence which may render it more or less credible. This is in accordance with the policy endorsed earlier in this chapter, that warnings should only be given where they reflect special judicial experience or where they alert the jury to matters which it would not otherwise readily understand or appreciate.

18.128 If there are factors affecting the reliability of the complainant’s evidence which may not be readily apparent to the jury, a warning may be sought pursuant to s 165(1)–(4) of the uniform Evidence Acts.[229] Where the warning relates to the reliability of the evidence of a child, the warning should be given pursuant to the provision recommended by the Commissions earlier in this chapter.[230] Appendix 1 contains a draft provision reflecting the intent of Recommendation 18–3.

18.129 In order to ensure that warnings as to the effects of delay and other factors on the reliability of memory are not given unnecessarily or inappropriately, the Commissions recommend that the National Judicial College of Australia, the Judicial College of Victoria, the Judicial Commission of New South Wales and the state and territory law societies and bar associations consider conducting educational programs regarding the nature of sexual assault, including the context in which sexual offences typically occur, and the emotional, psychological and social impact of sexual assault. This should include education on the nature of memory of traumatic and emotional events.[231]

Recommendation 18–3 The ALRC and the VLRC recommend that the uniform Evidence Acts be amended to provide that where a request is made by a party, and the court is satisfied that the party has suffered significant forensic disadvantage as a result of delay, an appropriate warning may be given.

The provision should make it clear that the mere passage of time does not necessarily establish forensic disadvantage and that a judge may refuse to give a warning if there are good reasons for doing so.

No particular form of words need be used in giving the warning. However, in warning the jury, the judge should not suggest that it is ‘dangerous to convict’ because of any demonstrated forensic disadvantage.

The NSWLRC’s view

18.130 The NSWLRC does not support Recommendation 18–3 and has prepared the following text in support of its view.

18.131 In the view of the NSWLRC, Longman should not be codified. Longman warnings are dictated by the requirements of a fair trial. These operate at a more fundamental level than the rules of evidence: they do not belong in evidence legislation.[232] Moreover, their attempted reduction to statutory form would threaten the flexibility essential to their proper application and development. Such reduction would also introduce a new point of divergence between those jurisdictions that have enacted the uniform Evidence Acts and those that have not. In addition, the NSWLRC regards the particular restatement of Longman in Recommendation 18–3 as inadequate since it fails to give due weight to the risk of forensic disadvantage that must be suffered by an accused in given circumstances by reason of delay occurring between the events alleged to give rise to criminal liability and the complaint giving rise to the instant proceedings.

Delay and the right to a fair trial

18.132 In exceptional cases, undue delay in the institution or continuance of criminal proceedings resulting in prejudice to the accused empowers the court to grant a permanent stay of the proceedings where such proceedings amount to an abuse of the court’s process.[233] However, as Brennan J pointed out in Jago v District Court of NSW:

To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.[234]

18.133 More commonly, therefore, delay calls for the exercise of the court’s power to control its own proceedings or to issue directions.[235] It is in the latter class of case that the Longman warning arises. In all cases, however, the necessity for a response to the delay arises from the same consideration: if the proceedings were not stayed or if the court did not make a particular order or if it failed to issue a warning, the accused would not receive a fair trial. As Brennan J said: ‘By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness’.[236]

18.134 The reason why a Longman warning is essential to a fair trial becomes apparent from a consideration of its purpose. Longman requires a trial judge to warn a jury of the perceptible risk of forensic disadvantage that the defendant suffers as a result of the delay in question.[237] This is because an appreciation of how delay can, in the circumstances, prejudice defendants in now presenting their case is, or may be, outside the ordinary experience of the jury.[238] The effect of delay is, however, known to the trial judge, whose experience enables him or her to identify the relevant forensic disadvantages to which the facts give rise.[239] Depending on the circumstances, these may be more or less palpable. On the one hand, they may range from the death of a crucial witness to the loss of particular documents that could help identify the whereabouts of the accused on a particular date. On the other hand, they may focus more on the general deterioration in ‘the whole quality of justice’ that has taken place as a result of the delay,[240] such as the lost opportunity of investigating the circumstances surrounding the alleged offences and the difficulty of now adequately testing the complainant’s evidence.[241] While it is true that the risk often cannot be quantified and will be uncertain in its significance, it is nevertheless real and substantial.[242] Indeed, much of the jurisprudence of the High Court and of state Courts of Criminal Appeal has recently been directed to correcting the erroneous perception that such disadvantage is ‘nebulous’.

18.135 Once this is appreciated, the relationship between a Longman warning and the requirement of a fair trial becomes clear. The presumption of innocence requires that a person must be able to test the prosecution case against him or her. This is absolutely fundamental to the notion of what constitutes a fair trial. It applies whether the person is guilty or innocent, for that is only determined by the verdict of the tribunal at the end of the trial. This is the underlying reason for the NSWLRC’s unequivocal support for the decision in Longman. The NSWLRC notes that the criticisms that have been made of Longman do not address this fundamental issue, but tend to focus on other arguments. In the first place, it is objected that where delay has clearly led to prejudice in testing the prosecution case, the warning is unnecessary since the prejudice is obvious to the jury. But this overlooks the fact that a jury may well not appreciate that other, unknown circumstances bearing on the issues in the trial might well also adversely affect the testing of the case.

18.136 More commonly, criticisms of Longman centre on its supposed undermining of legislative reforms dealing with delay in the making of complaints in sexual assault cases—reforms rightly designed to avoid placing witnesses into stereotypical classes with given results.[243] But Longman is not directed to this point. It is not concerned with evidence but with the incidents of a fair trial, a vital question of general importance by no means confined to sexual assault cases. Thus,a Longman warning is not directed to issues of credibility. For example, the fact that the complainant’s evidence is corroborated does not remove the necessity for a warning about forensic disadvantage in the overall circumstances of the case.[244] It remains true, of course, that, in an appropriate case,[245] the trial judge must warn the jury that the delay affects the reliability of the witness’ evidence, for example by distorting recollection, perhaps in specific ways such as those mentioned by Deane and McHugh JJ in their separate judgments in Longman.[246]

18.137 Where delay carries this particular risk of forensic disadvantage, it cannot be ignored. Research on child or complainant memory suggesting that, because the experiences are so emotional or traumatic, complainants in sexual assault cases are reliable historians in respect of what is generally alleged[247] cannot, as a matter of logic, justify the conclusion that therefore delay is immaterial or low risk. In any event, so far as it states generalisations about memory retention and accuracy, the research is of limited relevance in the context of Longman warnings. This is because of the lack of clarity in the memory, to which complainants themselves often testify, relates particularly to issues of when and where events took place, the very ‘peripheral’ matters that the research suggests complainants will not retain with accuracy. Yet these are often vital to testing the reliability of the complaint and identifying potential witnesses, and, as such, are forensically more significant than what is alleged. To ignore the real forensic disadvantage to which delay gives rise in now testing these issues is only justified by assuming that the complainant is truthful and reliable, the very matter sought to be tested. It is impossible to approach a trial and trial procedures upon such a basis.

18.138 Moreover, it is essential to appreciate that where a trial judge must warn about the risk of contamination of memory as a result of the lapse of time, it is quite wrong to focus simply on the memory of the complainant. The complainant is not the only witness whose memory is likely to be adversely affected by the passage of time. Further, the class of possible relevant, and potentially highly relevant, witnesses is not limited to those who have given evidence, whether for the prosecution or the defence. Persons able to give relevant evidence may well not be identified or, if identified and even called to give evidence (whether for prosecution or defence), may be unable to recall relevant events or, even more problematically, may not have reliable recall of those events. Indeed, the longer the delay the more likely it is that any recall will be unreliable or so vague as to be forensically useless.

Specific proposals in Recommendation 18–3

18.139 The NSWLRC’s response to the content of Recommendation 18–3 is informed by our understanding of the essential nature of a Longman warning. We are, of course, aware of the difficulty of stating the law in this area with precision. Levine J has recently warned:

In this extraordinarily fragile area of the law great attention must be paid to the particular case in hand and statements made by appellate judges in relation to the one ‘Longman appeal’ might be indisputably correct in the context of that appeal, but not necessarily constitute authority for the disposition of another appeal.[248]

18.140 Nevertheless, we are of the view that the following propositions are sound in principle.

18.141 First, whether or not a Longman warning must be given depends on the risk of forensic disadvantage in the overall factual context.[249] While the period of delay that will necessitate a warning cannot be specified in advance with any certainty,[250] substantial delay (such as 20 years) must generally give rise to a risk of forensic disadvantage.[251] In contrast, short delay will generally,[252] but not invariably,[253] mean that the warning does not have to be given. The proposal in Recommendation 18–3 that legislation should provide that the mere passage of time does not necessarily establish forensic disadvantage not only underestimates the effect of substantial delay on forensic disadvantage but also unduly restricts the flexibility of a Longman warning by seemingly creating a presumption against its application in such cases.

18.142 Secondly, where the facts call for it, a Longman warning must be given, even if the accused does not ask for it.[254] Recommendation 18–3 would, however, only allow the warning to be given where it is requested. In the view of the NSWLRC, the fairness of the trial cannot be compromised in this way—for example, by a careless failure to apply for the warning. Nor can it be compromised by suggesting that it is sufficient to leave it to defence counsel to draw to the jury’s attention the forensic disadvantages that the accused suffers in a particular case by reason of relevant delay. How could a trial judge in summing up fail to mention such disadvantages where they are an essential part of the accused’s case?

18.143 Thirdly, provided its substance is conveyed,[255] the content of a Longman warning is otherwise determined by the circumstances of the case.[256] This is necessarily so since the nature of forensic disadvantage will vary from case to case. The NSWLRC does not agree with the proposition that Longman warnings are, in any sense, ‘ritualistic’.[257]

18.144 Fourthly, given its source in the requirement of a fair trail, a Longman warning must be emphatic and bear the imprint of the court’s authority.[258] For this reason, and because (as we have pointed out in the last paragraph) a Longman warning takes its content from the facts of the case, the NSWLRC cannot support the proposition in Recommendation 18–3 that a judge should always be prevented from suggesting that it is ‘dangerous to convict’ because of a demonstrated forensic disadvantage. The warning that it is dangerous to convict is not a direction to acquit. It must be remembered that these words are invariably followed by the qualification that the jury may nevertheless convict if after careful scrutiny of all the evidence, considering the circumstances relevant to its evaluation and bearing in mind the warning, they are nevertheless persuaded beyond reasonable doubt of the accused’s guilt.[259] Indeed, where there has been a demonstrated forensic disadvantage it will often be dangerous to convict because it will have been demonstrated that the evidence in the particular relevant respects has not been able to be tested adequately. The demonstration of the forensic disadvantage is, therefore, the trigger that requires the warning.

The NSWLRC’s conclusion

18.145 The NSWLRC recognises that Longman warnings have generated several appeals in recent years, particularly in the context of sexual offences that have allegedly been committed many years before trial. No challenge has, however, been made to the necessity, in principle, for a warning about forensic disadvantage in such (or other) cases. Nor, as we have endeavoured to show, could such a challenge be successfully mounted since it would ultimately have to dispute the relevance of forensic disadvantage arising from delay to the incidents of a fair trial. In short, the High Court of Australia was correct in its conclusion about the importance of this issue and in the necessity for an emphatic direction to ensure a fair trial. Certainly, the NSWLRC remains unpersuaded that the High Court was mistaken. The NSWLRC notes that delay is, unsurprisingly, a factor relevant to fair trial guarantees in international human rights instruments.[260]

18.146 To the extent to which Longman warnings create particular problems in terms of their formulation and overlap with other warnings that courts must give in sexual assault cases,[261] the NSWLRC is of the view, in accordance with the general approach in this Report, that those problems ought to be addressed in offence-specific reviews or legislation.[262] More generally, the NSWLRC agrees with Victoria Legal Aid that concerns about Longman warnings are not generally amenable to legislative solution.[263] In our view, a trial judge must (subject, of course, to appellate review) retain a strong discretion, in the interests of justice, to warn about the perceptive risk of forensic disadvantage that is caused by delay in the circumstances and that may not be within the experience of the jury. The importance of such a warning is underscored, as Kirby J has pointed out, by the reluctance of Australian courts, in comparison with those in overseas jurisdictions, to grant permanent stays of proceedings to protect defendants from the injustices that can arise in attempting to mount a defence to criminal charges years or decades after an alleged offence has occurred.[264]

Crofts warning

18.147 As noted earlier in this chapter, the common law requirement to give corroboration warnings in respect of certain classes of witness was abolished in most Australian jurisdictions. Even after corroboration requirements were abolished, courts continued to direct juries that delay or absence of complaint could be used as a factor in determining a complainant’s credibility (known as a Kilby direction).[265] In Kilby v The Queen, the High Court observed that evidence of recent complaint is not evidence of the facts alleged, but goes to the credibility of the complainant as it demonstrates consistency of conduct. However, the court also held as a corollary that where there has been a failure to make a complaint at the earliest available opportunity, this fact may be used to impugn the credibility of the complainant.[266]

18.148 Legislation was subsequently passed in a number of Australian jurisdictions to require the judge to warn the jury that a delay in making a complaint of sexual assault does not necessarily mean that the allegation is false.[267] Although provisions of this kind were designed to remove stereotypes as to the unreliability of evidence given by sexual assault complainants, their protective effects have arguably been negated by the High Court decision in Crofts v The Queen.[268]

18.149 In Crofts, the complainant reported that she had been sexually assaulted by a family friend over a period of six years, and made a complaint six months after the last assault.[269] The trial judge directed the jury, as required by s 61(1)(b) of the Crimes Act 1958 (Vic), that delay in complaint does not necessarily indicate that the allegation of sexual assault is false and that there are good reasons why a complainant might delay making a complaint. Counsel for the accused requested that the trial judge balance the statutory direction with a Kilby direction that lack of recent complaint could be used to found an inference that the allegation was false. The trial judge refused on the ground that he was prohibited from doing so by virtue of s 61(1)(a) of the Crimes Act 1958 (Vic), which provides that the judge must not warn or suggest in any way that the law regards sexual assault complainants as an unreliable class of witness.

18.150 The High Court held that s 61(1)(a) does not preclude the court from giving a Kilby direction or from commenting that delay in complaint of sexual assault may affect the credibility of the complainant.[270] It considered that the purpose of s 61(1) and like provisions is to ‘restore the balance’ and rid the law of stereotypical notions as to the unreliability of sexual assault complainants, but not to immunise complainants from critical comment where such is necessary in order to secure a fair trial for the accused.[271]

18.151 The Court held that the trial judge erred in refusing to give the Kilby direction, as the giving of the s 61(1) direction without the Kilby direction was ‘unbalanced’ and unnecessarily favoured the complainant.[272] The Court held that a Kilby warning must be given where the delay is ‘substantial’.[273] Two qualifications were placed on this requirement: first, the warning need not be given where the facts of the case and the conduct of the trial do not suggest the need for a warning to restore the balance of fairness (for example, where there is an explanation for the delay); and secondly, the warning must not be expressed in terms that suggest a stereotyped view that sexual assault complainants are unreliable.[274]

18.152 Authorities support the view that, where there is a legislative provision which requires the trial judge to instruct the jury that there may be reasons for delay in complaint, the trial judge is required ‘as a general rule’ to direct the jury that it is entitled to take into account delay in assessing the complainant’s credibility (whether or not the complainant is the sole witness).[275] Although the failure to give a Crofts warning or the failure to give the warning adequately is not necessarilyfatal, it may result in the overturning of a conviction on the basis of a potential miscarriage of justice.[276]

18.153 One of the primary criticisms of the Crofts warning is that the premise on which it is given reflects discredited assumptions as to the nature of sexual assault and the behaviour of sexual assault complainants. The assumption that the failure to make an early complaint reflects on the credibility of a complainant is based on the historical common law expectation that a true sexual assault victim will make a ‘hue and cry’ immediately after the assault.[277] However, modern research in this area demonstrates the contrary. Delay or absence of complaint is a common feature of sexual assault, particularly in cases where the complainant was a child at the time the offences occurred and in cases where the offender is known to the complainant.[278]

18.154 Further, statistics indicate that most sexual assaults are committed by a person known to the victim, usually a person who is trusted and in a position of power in relation to the victim. This contributes to the low reporting rates for such offences.[279] Studies also show that sexual assault generally is less likely to be reported to law enforcement agencies than any other type of violence against the person.[280] It has been noted that the failure to report may be perceived as an ‘adaptive and rational response’ in some cases: women in a prior relationship with the offender may fear the repercussions of reporting, such as disapproval of family and friends, reprisals from the offender, fear that the complaint will not be taken seriously, or concern that the chances of a successful prosecution are negligible.[281]

18.155 While there may be individual cases where delay also accompanies a false complaint, research indicates that there is no logical nexus between delay in complaint and fabrication, particularly as it has been shown that delay in complaint is typical.[282] Where there is no firm basis for suggesting that the delay in complaint bears a relation to the credibility of the complainant, the giving of a Crofts warning is therefore misleading and unfairly disadvantageous to the complainant.[283]

18.156 Further, the giving of such warnings in cases where there is no positive link between delay and credibility effectively reinstates the traditional stereotypical views that sexual assault complainants are unreliable and prone to fabrication. Rather than ‘balancing’ the provisions which prohibit judges from stating that sexual assault complainants are an inherently unreliable class of witness or which explain that there are legitimate reasons why a sexual assault victim would not make an immediate complaint, the warning essentially negates their protective effects.[284] Further, the giving of two contradictory warnings renders both warnings redundant and risks confusing the jury.[285]

18.157 The Crofts warning has also attracted many of the same criticisms as the Longman warning. It is uncertain what length of delay will enliven the requirement to give the warning. Hence, as a practical matter, it has been said that trial judges should give the warning ‘as a general rule’, even in cases where reasons have been advanced for the delay in complaint.[286] In its research for its Final Report, the VLRC found that some judges were giving the Crofts warning even in cases where there was no delay in complaint.[287]

18.158 Some of the above concerns are illustrated by the following comment by Howie J in R v LTP¸ where his Honour indicated that although he felt that it was inappropriate to give the Kilby direction, the court was constrained by the High Court authorities.

I do not understand how any inference can legitimately be drawn about the veracity of a young child simply from the fact that the child does not complain about sexual misconduct at the first reasonable opportunity especially where that conduct is perpetrated by a close family member. Certainly courts should not be encouraging such a line of reasoning on the basis of some supposed collective experience or understanding of the behaviour of children in such a situation. Further, I believe that there is very good reason to doubt that the Kilby direction accords with a more modern, if not more enlightened, understanding of the impact of sexual assaults upon adult victims. In any event, there is in my view absolutely no justification for applying such a highly questionable view of the reasonable conduct of traumatised adult females to young children. However, like the Chief Judge, I must respect the line of authority that holds that such a direction should generally be given regardless of the age of the complainant or his or her relationship with the accused.[288]

Proposals for reform

18.159 The VLRC recommended the adoption of a legislative provision which prohibits the judge from stating or suggesting in any way to the jury that the credibility of a complainant is affected by a delay in reporting a sexual assault unless satisfied that there exists sufficient evidence in the particular case to justify such a warning.[289]

18.160 The TLRI questioned whether the VLRC proposal would actually operate to displace the Crofts warning, on the basis that the warning in Crofts was said by the High Court to be required because of the particular circumstances of that case, rather than by considerations at large. The facts of Crofts itself, on the view of the High Court, would arguably satisfy the VLRC’s proposed provision. It argued that given the evidence that delay in or failure to make complaint is normal in sexual assault cases, it should only be in exceptional circumstances that delay or failure to complain can have any legitimate bearing on the truthfulness of the account of the complainant. The TLRI proposed that trial judges in sexual assault cases should be precluded from giving Crofts warnings unless there are ‘exceptional circumstances’, namely: (a) where it can be shown on the balance of probabilities that the delay can be attributed to fabrication; or (b) delay has a genuine and identifiable connection, apart from the mere fact of delay, to the credibility of the complainant.[290]

18.161 The New South Wales Legislative Council Standing Committee on Law and Justice recommended that legislation be amended so as to prohibit entirely the giving of the Crofts warning.[291]

Submissions and consultations

18.162 In DP 69, the Commissions asked whether the recommendations proposed by the VLRC or the TLRI in relation to the Crofts warnings (or any other models) should be adopted under the uniform Evidence Acts.[292]

18.163 A significant number of submissions and consultations support legislative amendment to limit the giving of the Crofts warning. The NSW DPP considers that the Crofts warning should be limited. It submits that without some firm basis for the suggestion that the delay might have affected the complainant’s credibility, or some evidence pointing to actual prejudice to the accused, the credibility of the complainant is unfairly undermined.[293]

18.164 The NSW AGD submits that legislation should be amended to provide that the warning cannot be given unless there is sufficient evidence to justify the warning in the particular circumstances of the case. It submits:

[T]here is a real question as to whether the issue of delay in sexual assault is a matter particularly within the knowledge of the judiciary, or whether it should be left for the jury to determine. Do judges have any greater insight than members of the public about these issues? In the past this may have been the case, as sexual assault was not generally discussed in the public arena. However, issues surrounding sexual assault, including delayed complaint, are routinely addressed in newspapers, novels, countless television programs and by people in their everyday life.[294]

18.165 Some submissions and consultations favour the TLRI proposals.[295] Dympna House and Rosemount Youth and Family Services submit:

[W]e prefer the recommendations of the Tasmania Law Reform Institute. As studies have shown, there are many good reasons why victims of sexual assault and child sexual assault delay in disclosing the offences perpetrated on them, none of which make it less likely that the person’s account of what occurred will be truthful. As delay in complaint is a feature of so many of these cases, a warning to the jury should not be given unless the delay, on the balance of probabilities, suggests fabrication of the account. Also, in many cases the jury could be assisted by having access to expert evidence on common reasons for delay in complaint in sexual assault matters.[296]

18.166 Victoria Police also prefers the TLRI recommendations on the basis that they provide more clarity for judges in giving directions to juries and therefore may reduce the number of appeals on the ground of misdirection.[297]

18.167 Some submissions and consultations express the view that there is no basis for giving the Crofts warning, as research shows that delay in complaint has no relevance to the credibility of the complainant. They recommend that the warning be abolished.[298] Women’s Legal Service Victoria submits:

[W]e believe that Crofts warnings should never be given. Any suggestion that complainants of sexual assault are less credible because they have delayed in reporting the assault is contrary to research about the responses of sexual assault victims and therefore completely inappropriate purely from the perspective of assisting the jury to reach a correct decision. Further, any warning that encourages juries to impugn the credit of sexual assault complainants generally promotes dangerous and destructive attitudes in the community and should not be given.[299]

18.168 In contrast, the New South Wales Law Society opposes amendments constraining the giving of the Crofts warning.[300] Victoria Legal Aid also opposes the proposal that the defendant should have to demonstrate that the delay has some bearing on the credibility of the witness on the basis that the defence generally has no knowledge as to the reasons for delay by a complainant.[301]

The Commissions’ view

18.169 In the Commissions’ view, the Crofts warning is highly problematic as it reflects assumptions about sexual assault complainants which are outdated and empirically unsustainable. The research discussed earlier in this chapter demonstrates that there is no logical nexus between delay in complaint and the credibility of the complainant, and hence there is no foundation for such a warning to be given.

18.170 While there may be cases in which delay in complaint accompanies fabrication, there is nothing inherent in delay that makes it likely that the complainant is being untruthful. On the contrary, delay in reporting sexual assault is well within the spectrum of expected responses to sexual assault.[302] Rather than balancing the statutory direction explaining that there are reasons why a sexual assault complainant might delay in reporting an assault, the Crofts warning undermines the purport of those legislative provisions and unfairly disadvantages the prosecution.

18.171 Further, in an oath against oath trial, as sexual assault cases almost invariably are, the credibility and reliability of the complainant’s evidence is likely to be one of the central issues.[303] Given that this is the case, it is questionable whether there is any need for the judge to give a warning or make a comment in relation to the credibility of the complainant. In cases where there is evidence to support the suggestion that the delay in complaint bears some relation to the credibility of the complainant, such matters should be the subject of counsel’s address, rather than the subject of a judicial warning.[304]

18.172 The Commissions consider that these criticisms should be dealt with in offence-specific legislation, as the basis upon which the warning is given (and also upon which it is argued that the warning should be abolished) relates specifically to understandings about sexual assault complainants as a particular category of witness. While an analogous situation may well arise in the context of other non-gendered offences, for example a non-sexual assault, the arguments supporting the abolition of Crofts would not apply: that is to say, delay in reporting other kinds of offences is not necessarily a typical or practical response. The Commissions have recommended a targeted inquiry into juries, including a comprehensive review of jury directions, and consider that this is a matter that would be appropriately addressed in such an inquiry.[305]

18.173 The Commissions are also of the view that the routine giving of the Crofts warning cannot be attributed solely to judicial attempts to insulate decisions from appeal. It is also indicative of the fact that many legal practitioners and judicial officers remain largely uninformed of the nature of sexual assault and the reasons for delayed complaint.[306] In support of this proposition, the VLRC found that it is not uncommon for trial judges to make comments expressing unfavourable personal opinions regarding complainants’ sexual morality and credibility.[307] Although it is not considered appropriate to amend the uniform Evidence Acts in order to address the concerns raised by the Crofts warning, the Commissions consider that it is appropriate to recommend judicial and practitioner education on the nature of sexual assault, including the context in which sexual offences typically occur, and the emotional, psychological and social impact of sexual assault.[308]

Appeals on non-directions and misdirections

18.174 It is noted earlier in this chapter that the common law, building on the doctrine articulated by the High Court in Bromley and Longman,has developed new rules of practice requiring warnings to be given in relation to a number of categories of evidence. These warnings bear remarkable similarities to the mandatory corroboration warnings, as they are rigidly applied and their content is often technical and complex.

18.175 The failure to give an adequate warning may found a successful appeal if it is shown that the failure has resulted in a miscarriage of justice. The strict pronouncements of the High Court, combined with the uncertainties as to the requirements of the warning in order to avoid a miscarriage of justice, mean that this area has recently proved a fertile ground for successful appeals. Commentators have noted that:

In the past, appeal courts took a dim view of defence appeals based on a trial judge’s failure to direct (or direct strongly enough) on a potential weakness in the evidence, championing the need to defer to choices made by trial judges with direct experience of the matter at hand … However, the recent trend is sharply in the other direction. Indeed, arguably, the most significant single development in the law of criminal evidence in recent years has been an explosion in the number and stringency of mandatory requirements for judicial warnings about unreliable evidence in jury trials.[309]

18.176 Further, while criminal appeal rules generally provide that a court may dismiss an appeal, notwithstanding that a ground of appeal has been made out, if it considers that no substantial miscarriage of justice has actually occurred,[310] appellate courts have shown an increasing reluctance to exercise this power in relation to warnings.[311] In Conway v The Queen, Kirby J explained:

The strictness observed in such matters reflects an acceptance that, in one sense, a single misdirection can amount to a form of miscarriage of justice. The strictness also accepts that a jury is as enigmatic as a sphynx. While it is assumed, for practical reasons, that a jury obeys the judge’s directions on the law and its application to the evidence, the precise effect of a particular instruction can never be known. The weight given to particular directions, found to have been legally erroneous, is therefore a matter of appellate speculation.[312]

18.177 The law in relation to what constitutes a miscarriage of justice and when the proviso is applicable appears to be unsettled.[313] However, it is apparent that there has developed an assumption, particularly in New South Wales, that a misdirection or non-direction in relation to Longman will result in a substantial miscarriage of justice. This is illustrated in the following comment made by Greg James J in R v WRC:

Even though … conviction on all or most of the counts in both trials would be inevitable or nearly inevitable, the present state of the law requires that unless there is a direction which approaches nearly enough to the Longman requirements so that the jury could be seen to have the requisite understanding, the appeal should be allowed.[314]

18.178 A further concern is that courts have shown an increased willingness to review points of error not raised at trial. Generally, courts are reluctant to allow appellants to argue points which were not raised at trial.[315] In an adversarial system where parties are represented, it is generally assumed that decisions taken by counsel during the course of the trial are tactical decisions to which their clients are bound.[316] It is considered that unfairness does not arise simply because tactics taken at trial have operated to the disadvantage of the accused.[317] However, the High Court decision in Doggett v The Queen,that a Longman warning was required despite the fact that counsel had not sought one for tactical reasons, indicates that appellate courts will more readily interfere where the appeal relates to a misdirection or non-direction. The concerns raised by this aspect of the warning are highlighted in the discussion of the Longman warning earlier in this chapter.

18.179 In response to the substantive and procedural concerns raised by the Longman and Crofts warnings, the TLRI considered whether it might be desirable to repeal s 165(5), which expressly preserves the power of the trial judge to give common law warnings.[318] It noted that the repeal of the section would not remove the power of the court to give common law warnings,[319] but considered that such an amendment might encourage trial judges to use the statutory warning provisions instead of the common law warnings. It noted that the primary benefits of the statutory warnings are that: first, s 165(2) provides that a party must request the warning; secondly, s 165(2) is not formulated as a ‘dangerous to convict’ warning; and thirdly, s 165(3) enables the trial judge to decline to give a warning where there are ‘good reasons’ for doing so.[320]

18.180 The TLRI considered that the fair trial imperative, which in some cases requires a warning to be given irrespective of request, could be accommodated by inserting a provision into the uniform Evidence Acts requiring the court to make the parties aware of the right to request a warning.[321]

18.181 Given that the repeal of s 165(5) would not effect any legal change, the Commissions did not consider in DP 69 that such an amendment would be desirable. However, the Commissions considered two alternative solutions: the first is to subject s 165(5) to a request requirement, as applies to warnings under s 165(2); the second is to amend the uniform Evidence Acts to provide that the judge’s common law obligations to give warnings continue to operate unless all the parties agree that a warning should not be given. It was also suggested, in the event that either of the above solutions were adopted, that a legislative provision be included in the uniform Evidence Acts to require the trial judge to raise the issues regarding warnings with the parties and satisfy himself or herself that the parties are aware of their rights in this regard.[322]

18.182 One benefit arising from such amendments is that it would become routine for the trial judge to ask counsel to consider what warnings they will seek and to identify any such warnings prior to charging the jury. If the judge is concerned that counsel has erroneously failed to seek a particular warning, the judge can question counsel to ensure that the question has been considered and place on the record counsel’s reason for not seeking the warning. Another benefit of either approach is that they might assist to clarify the role of the trial judge (and hence reduce the volume of appeals) in the situation where counsel has made a tactical decision at trial not to request a warning. Neither approach would exclude appellate intervention where the failure of counsel to request a particular warning has resulted in a miscarriage of justice.[323]

Submissions and consultations

18.183 In DP 69, the Commissions asked whether the uniform Evidence Acts should be amended to require that, where the parties are represented, warnings (including warnings given under s 165(5)) are only required to be given on request of one of the parties. The Commissions asked, in the alternative, whether the uniform Evidence Acts should be amended to provide that a trial judge’s obligation to give warnings at common law continues to operate unless all the parties agree that such a warning should not be given.[324] It was also asked, in relation to the above questions, whether the uniform Evidence Acts should be amended to provide that the court is required to inform the parties of their rights in relation to common law warnings.[325]

18.184 Support is expressed in submissions and consultations for all of the above suggestions. Some submissions favour an amendment providing that warnings should only be given where requested.[326] Other submissions and consultations favour the suggestion that the trial judge’s obligation to give warnings at common law should continue to operate unless the parties agree that the warning should not be given.[327] These submissions and consultations generally do not address why one or the other approach is preferred.

18.185 One submission supports the suggestion that the court should be required to inform the parties of their rights in relation to common law warnings.[328] On the other hand, the view is expressed that there is no need for the court to do so.[329]

18.186 One submission expresses the view that subjecting s 165(5) to a request requirement would be unlikely to produce a significant change in practice, as most experienced defence lawyers would request warnings as a matter of course.[330]

18.187 A number of submissions and consultations do not support amending the uniform Evidence Acts so that warnings need only be given on request. The primary concern expressed is that the court retains primary responsibility for ensuring that an accused receives a fair trial, and that there is a danger that inexperienced or incompetent counsel might omit to request a warning.[331]

The Commissions’ view

18.188 The number of submissions received in relation to these questions indicates that the common law warnings are widely acknowledged to be causing a significant problem in practice. Although significant support is expressed in submissions and consultations for the suggested amendments, the Commissions are of the view that neither of the suggestions in DP 69 provide a satisfactory solution to the problems identified.

18.189 The primary aim of such amendments would be to encourage counsel to raise the issue of warnings at trial, rather than raising the matter for the first time on appeal. However, they would not prevent appeal courts from overturning convictions in almost every case in which it is considered that there has been a misdirection. An analysis of the authorities indicates that a significant aspect of the problem in this area, aside from the stringency of some of the warning requirements, is the assumption that the failure to give an adequate warning will almost inevitably amount to a substantial miscarriage of justice. The Commissions therefore consider that a more fundamental reform, perhaps codification of judicial warnings, is required in order to reduce the number of appeals on this point. Such reform may also require review of some aspects of the legislation dealing with criminal appeals.[332]

18.190 The Commissions therefore make no recommendation for change in the present Inquiry. However, it is considered that this is an issue which requires further consideration. As discussed earlier in this chapter, the Commissions have recommended a targeted inquiry into juries generally, including a comprehensive review of jury directions. This is a matter appropriately addressed in such an inquiry.[333]

[139] For example, in Carr v The Queen (2001) 117 A Crim R 272, the defendant was charged with armed robbery nine years after the alleged commission of the offence. The Tasmanian Court of Criminal Appeal overturned the conviction and ordered a new trial on the basis that the trial judge had not adequately directed the jury as to the potential prejudicial effects of delay. In R v Johnston (1998) 45 NSWLR 362, Spigelman CJ said: ‘Cases involving alleged sexual assault are only one example of criminal proceedings in which the conduct of a defence can be adversely affected by delay’ and said that the Longman warning is required ‘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’: Ibid, 370, 375.

[140] These categories are referred to earlier in this chapter.

[141] See, eg, R v Henry (1968) 53 Cr App R 150, 153.

[142] In medieval times, the failure of a woman who alleged rape to raise an immediate ‘hue and cry’ was taken as evidence of consent. In Kilby v The Queen (1973) 129 CLR 460, the High Court rejected the argument that an inference of consent can be drawn from the complainant’s failure to make an immediate complaint, but held that evidence of complaint is relevant to the complainant’s credibility.

[143] For details of this research see Victorian Law Reform Commission, Sexual Offences: Interim Report (2003), [2.43].

[144] Some jurisdictions have abolished corroboration warning requirements in respect of all witnesses: uniform Evidence Acts s 164; Criminal Code 1899 (Qld) s 632; Evidence Act 1906 (WA) s 50. Other jurisdictions abolish compulsory corroboration warnings specifically in relation to sexual assault complainants: Evidence Act 1929 (SA) s 34I(5); Crimes Act 1958 (Vic) s 61; Sexual Offences (Evidence and Procedure) Act 1993 (NT) s 4(5)(a). Further, legislation has been enacted in Victoria to prohibit the trial judge from warning the jury that the law regards sexual assault complainants as an unreliable class of witness: Crimes Act 1958 (Vic) s 61(1)(a).

[145]Crimes Act 1958 (Vic) s 61(1)(b); Criminal Code 1924 (Tas) s 371A; Criminal Procedure Act 1986 (NSW) s 294; Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A(4); Evidence Act 1906 (WA) s 36BD.

[146] New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002).

[147] Victorian Law Reform Commission, Sexual Offences: Final Report (2004).

[148] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005).

[149] At the time of writing it was expected that the Taskforce would complete its report in December 2005.

[150]Longman v The Queen (1989) 168 CLR 79.

[151] Ibid, 87.

[152] This section has been repealed and replaced by s 50 of the Evidence Act 1906 (WA).

[153] Longman v The Queen (1989) 168 CLR 79, 87.

[154] Ibid, 90–91.

[155] Ibid, 91.

[156] Ibid, 101.

[157] Ibid, 101.

[158] Ibid, 107­–108.

[159] Crampton v The Queen (2000) 206 CLR 161.

[160] Ibid, [45].

[161] Ibid, [45].

[162] Ibid, [45].

[163] Doggett v The Queen (2001) 208 CLR 343.

[164] Ibid, [9].

[165] Ibid, [46] .

[166] Ibid, [124].

[167] Ibid, [8]–[9], [58].

[168] Ibid, [14].

[169] Ibid, [81]–[83].

[170] R v BWT (2002) 54 NSWLR 241.

[171] Ibid, [14].

[172] Ibid, [19]–[20].

[173] Ibid, [31].

[174] Ibid, [95].

[175] See, eg, R v Johnston (1998) 45 NSWLR 362.

[176] Dyers v The Queen (2002) 210 CLR 285, [55].

[177] Doggett v The Queen (2001) 208 CLR 343, [127].

[178] R v BWT (2002) 54 NSWLR 241, [95].

[179] Robinson v The Queen (1999) 197 CLR 162, [25]–[26]. See also R v Omarjee (1995) 79 A Crim R 355; R v Miletic [1997] 1 VR 593.

[180] This research is discussed briefly earlier in this chapter.

[181] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [2.1.22]. This is discussed in more detail below.

[182] This is discussed in further detail below.

[183] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [2.1.3].

[184] See, eg, R v Kesisyan [2003] NSWCCA 259; R v Glennon (No 2) (2001) 7 VR 631.

[185] R v SJF [2002] NSWCCA 294, [30]. In this case it was held that the words ‘dangerous to convict’ were not necessary as there was no delay between the last alleged assault and the complaint.

[186]R v SJB (2002) 129 A Crim R 54, [53].

[187] R v GJH (2000) 122 A Crim R 361.

[188] R v Roddom [2001] NSWCCA 168.

[189] R v BWT (2002) 54 NSWLR 241, [34].

[190] Confidential, Consultation, Brisbane, 10 August 2005; H Astor, Consultation, Sydney, 2 August 2005; Confidential, Consultation, Sydney, 27 July 2005; Office of the Director of Public Prosecutions (NT) and Witness Counselling Service, Consultation, Darwin, 15 August 2005; NSW Rape Crisis Centre, Consultation, Sydney, 4 August 2005. Some judicial officers express the view that they are compelled to use the words ‘dangerous or unsafe to convict’: Confidential, Consultation, Brisbane, 10 August 2005.

[191] A Cossins, Consultation, Sydney, 3 August 2005; J Gans, Consultation, Melbourne, 17 August 2005; NSW Attorney General’s Department Criminal Law Review Division, Submission E 95, 21 September 2005. However, the view is also expressed that the words ‘dangerous to convict’ are not problematic and are necessary in some cases: G Brady, Consultation, Sydney, 26 August 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[192] This view is supported in consultations: J Gans, Consultation, Melbourne, 17 August 2005; Confidential, Consultation, Brisbane, 10 August 2005.

[193] R v LTP [2004] NSWCCA 109, [47].

[194] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [2.1.11]; Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [7.121].

[195] See discussion in Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [2.1.12].

[196] Jones v Dunkel (1959) 101 CLR 298, 314. Note that this was not a case dealing with warnings in relation to delay in complaint.

[197] In R v BWT (2002) 54 NSWLR 241, Wood CJ at CL identified a list of eight directions required to be given in sexual assault cases: [32].

[198] Ibid, [35].

[199] R v DBG (2002) 133 A Crim R 227, [333]–[338].

[200] R v MM (2004) 145 A Crim R 148, [36].

[201] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [3.1.1].

[202] R v BWT (2002) 54 NSWLR 241, [115].

[203] The New South Wales Legislative Council Standing Committee on Law and Justice made a similar recommendation that trial judges be prohibited from giving a Longman warning where there is no evidence or good reason to suppose that the accused was prejudiced by the delay in complaint: New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002), Rec 23.

[204] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Rec 170.

[205] Ibid, Rec 170.

[206] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [3.1.6].

[207] Ibid, [3.1.6].

[208] Ibid, [3.1.5].

[209] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005) Q 16–1.

[210] H Astor, Consultation, Sydney, 2 August 2005; NSW Rape Crisis Centre, Consultation, Sydney, 4 August 2005; NSW Health Department Child Protection and Violence Prevention Unit, Submission E 23, 21 February 2005; Women’s Legal Services (NSW), Submission E 40, 24 March 2005.

[211] G Brady, Consultation, Sydney, 26 August 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; Confidential, Consultation, Brisbane, 10 August 2005.

[212] Legal Aid Queensland, Consultation, Brisbane, 10 August 2005; Confidential, Consultation, Sydney, 27 July 2005; H Astor, Consultation, Sydney, 2 August 2005; A Cossins, Consultation, Sydney, 3 August 2005; J Gans, Consultation, Melbourne, 17 August 2005; NSW Attorney General’s Department Criminal Law Review Division, Submission E 95, 21 September 2005.

[213] A Cossins, Consultation, Sydney, 3 August 2005.

[214] K Mack, Submission E 82, 16 September 2005; Rosemount Youth and Family Services, Submission E 107, 15 September 2005; Women’s Legal Services Victoria, Submission E 110, 30 September 2005; Victoria Police, Submission E 111, 30 September 2005.

[215] Victoria Police, Submission E 111, 30 September 2005.

[216] Victoria Legal Aid, Submission E 113, 30 September 2005; G Brady, Consultation, Sydney, 26 August 2005.

[217] For example, where an indictment charge alleges ‘that X did have sexual intercourse with a child between 10 and 16 years between 1 February 1986 and 16 August 1986’.

[218] NSW Attorney General’s Department Criminal Law Review Division, Submission E 95, 21 September 2005.

[219] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[220] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[221] Victoria Legal Aid, Submission E 113, 30 September 2005.

[222] See above discussion for the relevant authorities.

[223] See, eg, Carr v The Queen (2001) 117 A Crim R 272; R v Johnston (1998) 45 NSWLR 362.

[224] See, eg, Robinson v The Queen (1999) 197 CLR 162; R v Miletic [1997] 1 VR 593; R v Omarjee (1995) 79 A Crim R 355.

[225] R v Birks (1990) 19 NSWLR 677.

[226] Crampton v The Queen (2000) 206 CLR 161, [42].

[227] For details of this reasearch, see the discussion in Ch 8 regarding psychological research in relation to emotional and traumatic memory. See also discussions earlier in this chapter regarding the evidence of child witnesses and in Ch 9 regarding expert opinion evidence in relation to child behaviour and development.

[228] See the discussion earlier in this chapter of Robinson v The Queen (1999) 197 CLR 162.

[229] In particular, see s 165(1)(c).

[230] See Rec 18–2.

[231] See Rec 3–1.

[232] See discussion in Ch 2.

[233] Jago v District Court of New South Wales (1989) 168 CLR 23.

[234] Ibid, 49.

[235] Ibid, 47, 49. See also R v Johnston (1998) 45 NSWLR 362, 375; R v Kesisyan [2003] NSWCCA 259, [5].

[236] Jago v District Court of New South Wales (1989) 168 CLR 23, 49.

[237] See Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343; R v BWT (2002) 54 NSWLR 241; Dyers v The Queen (2002) 210 CLR 285, [54]–[57].

[238] See R v Johnston (1998) 45 NSWLR 362, 375.

[239] See Crampton v The Queen (2000) 206 CLR 161, [132].

[240] R v Lawrence [1982] AC 510.

[241] Longman v The Queen (1989) 168 CLR 79, 91, 108–109; Crampton v The Queen (2000) 206 CLR 161, [45], [130]–[132], [140]; Doggett v The Queen (2001) 208 CLR 343, [51]; R v Percival [2003] NSWCCA 409, [7].

[242] See Crampton v The Queen (2000) 206 CLR 161, [132].

[243] See [18.72]–[18.75].

[244] Doggett v The Queen (2001) 208 CLR 343.

[245] Ibid, [127].

[246] See [18.80].

[247] See [18.55], [18.72], [18.124].

[248] R v MM (2004) 145 A Crim R 148, [33].

[249] R v BWT (2002) 54 NSWLR 241, [95]. Compare R v MM (2004) 145 A Crim R 148, [14].

[250] Dyers v The Queen (2002) 210 CLR 285, [57].

[251] See, eg, Doggett v The Queen (2001) 208 CLR 343; R v BWT (2002) 54 NSWLR 241, [95].

[252] See, eg, R v GAR [2003] NSWCCA 224, [55]; R v Collins [2001] NSWCCA 386.

[253] See, eg, R v Heuston (2003) 140 A Crim R 422, [43]–[52]; R v Scott [2004] NSWCCA 254, [95]–­[102].

[254] Doggett v The Queen (2001) 208 CLR 343. Consider R v Saengsai-Or (2004) 61 NSWLR 135. Compare R v Fowler (2003) 151 A Crim R 166.

[255] See R v Kesisyan [2003] NSWCCA 259.

[256] R v Johnston (1998) 45 NSWLR 362, 375.

[257] R v Jacobs (2004) 151 A Crim R 452, [297].

[258] Consider Dyers v The Queen (2002) 210 CLR 285, [55]–[56]; R v LTP [2004] NSWCCA 109; R v BWT (2002) 54 NSWLR 241. Compare R v MM (2004) 145 A Crim R 148.

[259] Longman v The Queen (1989) 168 CLR 79, 91.

[260] See R Clayton and H Tomlinson, The Law of Human Rights (2000).

[261] See R v BWT (2002) 54 NSWLR 241, [32].

[262] See [2.40]–[2.41], [18.51]. And see Ibid, [35].

[263] See [18.113].

[264] Crampton v The Queen (2000) 206 CLR 161, [129].

[265] Kilby v The Queen (1973) 129 CLR 460.

[266] Ibid, 472.

[267] These provisions were outlined earlier in this chapter. Note that in 1997, Victoria amended this formulation because it was considered that the use of the word ‘necessarily’ implies that delay may mean that the allegation is false. Section 61(1)(b) of the Crimes Act 1958 (Vic) now requires that in cases where there is a suggestion of delay, the judge ‘must inform the jury that there may be good reasons why victims of sexual assault may delay or hesitate in complaining about it’.

[268] Crofts v The Queen (1996) 186 CLR 427.

[269] Ibid.

[270] Ibid, 450–451.

[271] Ibid, 451.

[272] Ibid, 452.

[273] Ibid, 450.

[274] Ibid, 451.

[275] See, eg, R v Markuleski (2001) 52 NSWLR 82, [175].

[276] Ibid, [187].

[277] Kilby v The Queen (1973) 129 CLR 460.

[278] For details of this research, see Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [2.43].

[279] Research indicates that people who are sexually assaulted by someone known to them are less likely to report the offence than those who are assaulted by strangers: Ibid, [1.12]; D Lievore, Non-reporting and Hidden Recording of Sexual Assault in Australia (2002) Australian Institute of Criminology, 5.

[280] D Lievore, Non-reporting and Hidden Recording of Sexual Assault in Australia (2002) Australian Institute of Criminology, 3.

[281] Ibid, 7.

[282] New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002). See also NSW Health Department Child Protection and Violence Prevention Unit, Submission E 23, 21 February 2005; Women’s Legal Services (NSW), Submission E 40, 24 March 2005; A Cossins, Consultation, Sydney, 3 August 2005.

[283] J Wood, ‘Sexual Assault and the Admission of Evidence’ (Paper presented at Practice and Prevention: Contemporary Issues in Adult Sexual Assault in New South Wales, Sydney, 12 February 2003).

[284] NSW Adult Sexual Assault Interagency Committee, A Fair Chance: Proposals for Sexual Assault Law Reform in NSW (2004), 15; J Wood, ‘Sexual Assault and the Admission of Evidence’ (Paper presented at Practice and Prevention: Contemporary Issues in Adult Sexual Assault in New South Wales, Sydney, 12 February 2003), [51]; New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002), [4.175].

[285] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [2.1.6].

[286] Ibid, [2.1.16].

[287] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [7.88].

[288] R v LTP [2004] NSWCCA 109, [123].

[289] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Rec 170.

[290] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [3.1.6].

[291] New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002), Rec 22.

[292] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Q 16–1.

[293] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[294] NSW Attorney General’s Department Criminal Law Review Division, Submission E 95, 21 September 2005.

[295] Confidential, Consultation, Sydney, 27 July 2005; K Mack, Submission E 82, 16 September 2005.

[296] Rosemount Youth and Family Services, Submission E 107, 15 September 2005.

[297] Victoria Police, Submission E 111, 30 September 2005.

[298] A Cossins, Consultation, Sydney, 3 August 2005; Women’s Legal Services Victoria, Submission E 110, 30 September 2005; NSW Health Department Child Protection and Violence Prevention Unit, Submission E 23, 21 February 2005; Women’s Legal Services (NSW), Submission E 40, 24 March 2005.

[299] Women’s Legal Services Victoria, Submission E 110, 30 September 2005.

[300] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[301] Victoria Legal Aid, Submission E 113, 30 September 2005.

[302] Victorian Law Reform Commission, Sexual Offences: Interim Report (2003), [2.35]–[2.36]; A Cossins, Consultation, Sydney, 3 August 2005.

[303] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [1.12]; J Dunford, ‘Looking Forward—The Direction of Criminal Law’ (2004) Summer 2004/2005 Bar News 46, 51; D Lievore, Victim Credibility in Adult Sexual Assault Cases (2004) Australian Institute of Criminology.

[304] New South Wales Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions, Report 22 (2002), [4.175].

[305] See Rec 18–1.

[306] This view is supported in consultations: A Cossins, Consultation, Sydney, 3 August 2005.

[307] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [7.140]–[7.143].

[308] Consultations indicate support for such a recommendation: H Astor, Consultation, Sydney, 2 August 2005; A Cossins, Consultation, Sydney, 3 August 2005. See Rec 3–1.

[309] J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 344.

[310] See Criminal Appeal Act 1912 (NSW) s 6(1).

[311] Conway v The Queen (2002) 209 CLR 203, [89].

[312] Ibid, [90].

[313] TKWJ v The Queen (2002) 212 CLR 124, [70].

[314] R v WRC (2002) 130 A Crim R 89, [121].

[315] Vakauta v Kelly (1989) 167 CLR 568.

[316] R v Birks (1990) 19 NSWLR 677.

[317] TKWJ v The Queen (2002) 212 CLR 124, [16].

[318] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [3.1.1].

[319] See Ch 2 for a discussion of the relationship between the common law and the uniform Evidence Acts.

[320] Tasmania Law Reform Institute, Warnings In Sexual Offence Cases Relating To Delays In Complaint, Issues Paper No 8 (2005), [3.1.1].

[321] Ibid, [3.1.2].

[322] Section 132 of the uniform Evidence Acts provides a possible model for such a provision.

[323] TKWJ v The Queen (2002) 212 CLR 124.

[324] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Q 16–2.

[325] Ibid, Q 16–3.

[326] Christian Science Committee on Publication Federal Representative for Australia, Submission E 81, 15 September 2005; K Mack, Submission E 82, 16 September 2005; Victoria Police, Submission E 111, 30 September 2005.

[327] Eastern and Central Sexual Assault Service, Submission E 61, 24 August 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; G Brady, Consultation, Sydney, 26 August 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[328] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[329] K Mack, Submission E 82, 16 September 2005; Victoria Police, Submission E 111, 30 September 2005.

[330] Rosemount Youth and Family Services, Submission E 107, 15 September 2005.

[331] Victoria Legal Aid, Submission E 113, 30 September 2005; G Brady, Consultation, Sydney, 26 August 2005; Legal Aid Queensland, Consultation, Brisbane, 10 August 2005.

[332] For example, Justice Dunford has suggested that one solution to deal with the upsurge in conviction appeals relating to technical errors by trial judges is to amend the criminal appeal legislation to provide expressly that a conviction appeal should be dismissed, even if a ground of appeal has been established, if the court is satisfied of the guilt of the appellant beyond reasonable doubt: J Dunford, ‘Looking Forward—The Direction of Criminal Law’ (2004) Summer 2004/2005 Bar News 46, 54.

[333] See Rec 3–1.