Longman warning

28.36 In Longman,[54] a complaint was made more than 20 years after the alleged offence. In general terms, the case requires that the jury be warned that, because of the passage of a number of years, it would be ‘dangerous to convict’ on the complainant’s evidence alone unless the jury is satisfied of its truth and accuracy, having scrutinised the complainant’s evidence with great care.[55] The rationale for the warning is that a significant delay puts the accused at a forensic disadvantage because he or she has lost the ‘means of testing the complainant’s allegations which would have been open to him [or her] had there been no delay’.[56]

28.37 The Longman warning has attracted a great deal of comment and criticism,[57] including that:

  • the combined effect of Longman and subsequent High Court cases[58] 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’[59] and, as a result, trial judges are required to give the warning irrespective of whether the accused has in fact been prejudiced or suffered a forensic disadvantage;

  • warning the jury in the terms that it would or may be ‘dangerous or unsafe’ to convict ‘risks being perceived as a not too subtle encouragement by the trial judge to acquit’,[60] thereby encroaching improperly on the fact-finding task of the jury;

  • the actual length of delay which necessitates the giving of a Longman warning is unclear;[61]

  • a practice has developed of giving the Longman warning to ‘appeal-proof’ trial judges’ directions even if it is unnecessary in the particular case;[62] and

  • the warning is given even where there is corroboration of the complainant’s evidence.[63]

28.38 The Longman warning also raises a range of other issues in relation to perpetuating myths and misconceptions about sexual assault and discriminatory attitudes towards women and children. For example, at common law, the warning focuses on the evidence of the complainant, rather than the forensic disadvantage suffered by the defendant.[64] Also, the warning continues to link delay in complaint with the complainant’s credibility and reflects discredited assumptions as to the reliability of memory, particularly that of children.[65]

Uniform Evidence Acts approach

28.39 In ALRC Report 102, the ALRC, NSWLRC and Victorian Law Reform Commission (VLRC) identified two options for reform to address the concerns raised in relation to the Longman warning: to legislate to abolish the warning in its entirety; or to legislate to clarify, modify or limit its operation.[66]

28.40 Ultimately the ALRC and the VLRC, but not the NSWLRC, recommended 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 to 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.[67]

28.41 The recommendation was subsequently enacted as s 165B of the Evidence Act 1995 (Cth), Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic).[68]

28.42 In its 2008 consultation paper on jury directions, the VLRC considered whether s 165B of the uniform Evidence Acts provided a satisfactory approach to warning the jury in relation to the forensic disadvantage because of delay and whether such a warning continues to be necessary, or the matter ought to be left to counsel to address.[69] The VLRC concluded that s 165B of the Evidence Act 2008 (Vic) appropriately deals with Longman warnings:

Section 165B provides that the judge must be satisfied that the accused has suffered forensic disadvantage because of the delay before giving the jury a warning. The judge is probably better placed than the jury to make this threshold assessment. If the judge makes this determination he or she must inform the jury of the nature of the disadvantage and instruct them to take it into account when considering their verdict.

Section 165B of the Evidence Act is activated by a request from counsel for a warning. The trial judge has a discretionary power to refuse to give a warning which has been requested when satisfied that ‘there are good reasons for not doing so’. This approach is consistent with our recommendations concerning all directions other than those which are mandatory.[70]

28.43 Cossins has identified a number of weaknesses and limitations in the operation of s 165B of the uniform Evidence Acts.[71] The limitations arise, in her view, because:

  • s 165B ‘does not affect any other power of the judge to give any warning to, or to inform, the jury’,[72] meaning that trial judges are still able to give a Longman warning; and

  • the Longman warning is mandatory in nature but s 165B warnings are dependent on an application by ‘a party’[73] or ‘the defendant’.[74]

28.44 The National Child Sexual Assault Reform Committee has identified a number of issues that may arise in practice as a result.[75] These are that:

  • a trial judge could give both Longman and s 165B warnings;[76]

  • a trial judge may be persuaded to give the Longman warning instead of a s 165B warning to ‘appeal-proof’ the case;[77] and

  • in the federal and Victorian jurisdictions, the defendant must request the s 165B warning before it can be given, and it is doubtful whether the defence would make such a request if the more advantageous Longman warning can be given in the alternative.

Options for reform

28.45 The Queensland Law Reform Commission (QLRC) and the TLRI have recommended the enactment of legislative provisions to override the Longman warning in terms which are broadly consistent with the uniform Evidence Acts approach.[78]

28.46 South Australia has pursued an alternative reform option by enacting s 34CB of the Evidence Act 1929 (SA). Section 34CB of the Evidence Act 1929 (SA) was enacted with the clear intention of abolishing the Longman warning.[79] Arguably, however, the drafting abolishes the trial judge’s obligation to give the Longman warning, without limiting the power to give the warning, providing that a ‘rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished’.[80]

28.47 As a result, s 34CB of the Evidence Act 1929 (SA) differs from s 165B of the uniform Evidence Acts to the extent that it abolishes the trial judge’s obligation to give the Longman warning.

28.48 In practice, however, the provisions may differ little in the extent to which they regulate the trial judge’s general power to give a Longman warning.[81] The key distinction which emerges between s 165B of the uniform Evidence Acts and the South Australian provision is that under the uniform Evidence Acts, a judge may be obliged to give a Longman warning—irrespective of whether a s 165B warning is requested—whereas a judge under s 34CB of the Evidence Act 1929 (SA) is not obliged to give a Longman warning.

28.49 Other points of difference between s 165B of the uniform Evidence Acts and s 34CB of the Evidence Act 1929 (SA) include that:

  • a judge under the uniform Evidence Acts is not obliged to give a s 165B direction to the jury if it is not requested,[82] whereas a judge under s 34CB of the Evidence Act 1929 (SA) must do so if the court is of the opinion ‘that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant’;[83]

  • a judge under the uniform Evidence Acts provision has a discretion to refuse to give a warning relating to delay where the defendant is forensically disadvantaged if there are good reasons for doing so,[84] whereas no such discretion is available to a judge under s 34CB of the Evidence Act 1929 (SA); and

  • the uniform Evidence Acts do not explicitly require that the direction given must be specific to the circumstances of the particular case, whereas the South Australian provision makes this explicit.[85]

28.50 The National Child Sexual Assault Reform Committee has proposed an alternative provision to address the inadequacies of s 165B of the uniform Evidence Acts.[86] The Committee proposed that the defendant should have to show—on the balance of probabilities—‘actual forensic disadvantage’ before the court is required to give a s 165B warning.[87] The Committee also proposes that s 165B should prescribe the exact wording of the warning and prohibit any other form of words being used.[88] Section 165B should, in the Committee’s view, require the trial judge to give reasons for not giving a warning and explicitly abrogate the court’s power to give a Longman warning.

Consultation Paper

28.51 In the Consultation Paper, the Commissions proposed that federal, state and territory legislation should provide that:

(a) if the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence;

(b) the judge need not comply with (a) if there are good reasons for not doing so; and

(c) no particular form of words needs to be used in giving the warning pursuant to (a), but in warning the jury, the judge should not suggest that it is ‘dangerous to convict’ because of any demonstrated forensic disadvantage.

28.52 The Commissions also asked what issues arise in practice pursuant to s 165B of the uniform Evidence Acts and whether the abrogation of the trial judge’s obligation and power to give a Longman warning under s 165B(5) is sufficiently explicit.

Submissions and consultations

28.53 Many stakeholders supported the Consultation Paper proposal.[89] Some members of the NSW legal profession observed that s 165B of the uniform Evidence Acts works satisfactorily in practice and does not lead to trial judges giving Longman warnings in addition to, or instead of, s 165B warnings.[90]

28.54 National Legal Aid noted that the Longman warning has a strong effect on trial outcomes and that, before the uniform Evidence Acts were enacted, research suggested that judicial misdirection in relation to the Longman warning was a common ground of criminal appeal and a common basis for successful criminal appeals in NSW.[91] Nonetheless, National Legal Aid considered that it is appropriate that Longman warnings be given where the defendant is at a forensic disadvantage in, for example, locating witnesses, testing or adducing evidence, where there has been substantial delay.[92]

28.55 Cossins did not support the Consultation Paper proposal, because it would not abolish the Longman warning or the power of trial judges to give the warning. In her view, there is ‘no reason to think that [the proposal] will change the practice of giving the warning, particularly since trial judges know that the failure to give a Longman warning is an obvious and common ground of appeal’.[93] Cossins questioned the grounds on which a trial judge can refuse to give a Longman warning, if requested by the defence, and argued that very clear words of abrogation need to be included to remove the power to give a common law warning.[94]

28.56 In Cossins’ view, the preferred reform would replace Longman with an alternative warning and specify a particular form of words to describe the disadvantages suffered by the defendant because of delay in complaint. This alternative warning should only be given where the defendant can show that he or she has suffered an actual forensic disadvantage as a result of a delay in complaint. It is necessary, Cossins argues, to restrict the form of words used by the trial judge.[95]

Commissions’ views

28.57 In the Commissions’ view, s 165B of the uniform Evidence Acts provides a satisfactory approach to the problems raised by the Longman warning. In forming this view, the Commissions recognise that delay in complaint is a typical feature of reporting sexual assault and that the mere passage of time ought not to ‘count against’ a complainant in sexual offence proceedings.

28.58 Provisions consistent with s 165B should be adopted by all jurisdictions because a jury could fail to appreciate that delay can cause forensic disadvantage to a defendant. Where (and only where) a significant forensic disadvantage is identified and has an evidentiary basis, the court ought to inform the jury of the nature of that disadvantage and the need to take it into account when considering the evidence.

28.59 The Commissions acknowledge that, in some cases, the existence of a very long delay may satisfy the court that the defendant has suffered a significant forensic disadvantage such as to require a s 165B warning, but also consider that the provision makes it clear that the mere passage of time does not necessarily establish forensic disadvantage.

Recommendation 28–3 State and territory legislation should provide, consistently with s 165B of the uniform Evidence Acts, that:

(a) if the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence;

(b) the judge need not comply with (a) if there are good reasons for not doing so; and

(c) no particular form of words needs to be used in giving the warning pursuant to (a), but in warning the jury, the judge should not suggest that it is ‘dangerous to convict’ because of any demonstrated forensic disadvantage.

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

[55] Ibid, 91. See also 108–109.

[56] Ibid, 91.

[57] See, eg, Victorian Law Reform Commission, Jury Directions: Final Report (2009); Queensland Law Reform Commission, A Review of Jury Directions: Report, Report 66 (2009); New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008); L Chapman, Review of South Australia Rape and Sexual Assault Law: Discussion Paper (2006), prepared for the Government of South Australia; Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report 8 (2006); Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005); Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005); Victorian Law Reform Commission, Sexual Offences: Final Report (2004); Legislative Council Standing Committee on Law and Justice—Parliament of New South Wales, Report on Child Sexual Assault Prosecutions, Report No 22 (2002). See also A Cossins, Time Out for Longman: Myths, Science and the Common Law (2010) Forthcoming in vol.34 (1) of Melbourne University Law Review.

[58] Dyers v The Queen (2002) 210 CLR 285; Doggett v The Queen (2001) 208 CLR 343; Robinson v The Queen (1999) 197 CLR 162; Crampton v The Queen (2000) 206 CLR 161.

[59] R v BWT (2002) 54 NSWLR 241, [14]–[15].

[60] Ibid, [34].

[61] Ibid,[95]. See, eg, R v Heuston (2003) 140 A Crim R 422.

[62] Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 89–90. See also, New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008), [7.49]–[7.54]; Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report 8 (2006), [2.1.1]–[2.2.1], [2.3.1]–[2.3.2].

[63] A Cossins, Time Out for Longman: Myths, Science and the Common Law (2010) Forthcoming in vol.34 (1) of Melbourne University Law Review.

[64] Ibid.

[65] See Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report 8 (2006), [2.1.22].

[66] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [18.100]. See [18.101]–[18.102] for the principal arguments in support of each of these options.

[67] Ibid,[18.116]–[18.129], Rec 18–3. See also [18.130]–[18.146] for the NSWLRC’s views in relation to this recommendation.

[68] Differences between these provisions include that in s 165B(2) of the Commonwealth and Victorian Acts, application must be made by ‘the defendant’, while in s 165B(2) of the NSW Act application must be made by ‘a party’. Also, the NSW Act is alone in providing a non-exhaustive list of factors that may be regarded as establishing a significant forensic disadvantage, see Evidence Act 1995 (NSW) s 165B(7). No such provision has been enacted in Tasmania, although it is a uniform Evidence Acts jurisdiction. For further discussion see, Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report 8 (2006), [3.3.1]–[3.3.22].

[69] As discussed in the final report: Victorian Law Reform Commission, Jury Directions: Final Report (2009), 105.

[70] Ibid, 105–106, Rec 37: ‘The issue of delay in complaint in criminal trials should be governed by a provision in the legislation, substantially adopting s 165B of the Evidence Act 2008, in lieu of s 61 of the Crimes Act 1958’.

[71] A Cossins, Time Out for Longman: Myths, Science and the Common Law (2010) Forthcoming in vol.34 (1) of Melbourne University Law Review.

[72] Uniform Evidence Acts, s 165B(5).

[73] Evidence Act 1995 (NSW) s 165B.

[74] Evidence Act 1995 (Cth) s 165B; Evidence Act 2008 (Vic) s 165B.

[75] A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 78.

[76] The Committee contends this may occur where the prosecution makes an application for a s 165B warning to be given and the defence reminds the judge of the mandatory nature of the Longman warning. The Committee also contends that in this situation, it would be more likely that the judge will refuse to give the s 165B warning (pursuant to Evidence Act 1995 (NSW) s 165B(3)) and give the Longman warning instead.

[77] The Committee explains that a s 165 warning is less advantageous to a defence case than the Longman warning. A defendant who is convicted by a jury who has been directed in the terms of Longman would therefore be unlikely to assert on appeal that the trial judge failed to give a s 165B warning. By comparison, a defendant who is convicted by a jury who has been directed in terms of a s 165B warning is more likely to assert on appeal that the conviction should be overturned because the trial judge failed to warn the jury in the terms of Longman.

[78] Queensland Law Reform Commission, A Review of Jury Directions: Report, Report 66 (2009), Rec 15–1; Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report 8 (2006), Rec 2. At the time of writing, neither recommendation had been implemented.

[79] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1449 (M Atkinson—Attorney-General, Minister for Justice, Minister for Multicultural Affairs).

[80] A Cossins, Time Out for Longman: Myths, Science and the Common Law (2010) Forthcoming in vol.34 (1) of Melbourne University Law Review, 35.

[81] Cf Uniform Evidence Acts, s 165B(5).

[82] Ibid s 165B(2).

[83] Evidence Act 1929 (SA) s 34CB(2).

[84] Uniform Evidence Acts, s 165B(3).

[85] Evidence Act 1929 (SA) s 34CB(3)(a).

[86] A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 79–82.

[87] Ibid, Rec 2.1.

[88] The proposed wording would require the judge to inform the jury that they ‘may’ take the forensic disadvantage into account in determining whether the prosecution has proved its case beyond reasonable doubt. Uniform Evidence Acts s 165B(2) provides the court must ‘inform the jury of the nature of that disadvantage and the need to take the disadvantage into account when considering the evidence’ (emphasis added).

[89] National Legal Aid, Submission FV 232, 15 July 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Confidential, Submission FV 130, 21 June 2010.

[90] Barrister, Consultation, Sydney, 10 June 2010; NSW Legal Assistance Forum, Consultation, Sydney, 10 May 2010.

[91] National Legal Aid, Submission FV 232, 15 July 2010.

[92] Ibid.

[93] A Cossins, Submission FV 112, 9 June 2010.

[94] Dr Cossins refers to Crimes Act 1958 (Vic) s 61(1E) and Evidence Act 1929 (SA) s 34B as examples of clear abrogation. Those parts of Crimes Act 1958 (Vic) s 61 which affect Longman warnings were displaced by Evidence Act 2008 (Vic) s 165B.

[95] A Cossins, Submission FV 112, 9 June 2010.