Updated 23 October 2007
Many thanks to Jennifer Wheeler for tirelessly conducting research for
Provisions relating to the giving of evidence by complainants in sexual
The main focus of this topic is the legislative framework of Part 6
Criminal Procedure Act 1986. This Act was recently amendment to
incorporate the provisions of the Evidence (Children) Act 1997 which has
been repealed. These changes included expanding the evidentiary provisions to
include intellectually impaired persons called as a witness. Intellectual
impairment is defined in s.306M(2) of the Criminal Procedure Act 1986 as
Part 6 permits the taking of video taped recordings of pre-trial interviews
with vulnerable persons and the admission into evidence of those tapes as part
of the prosecution case in various types of criminal proceedings. The use of
such recordings is part of a broader package of “reforms” designed to assist
vulnerable witnesses in court proceedings.
It is of course important to remember at the outset that a recorded statement
is not sworn evidence; it is not subject to cross-examination at the time the
account is given; unlike a transcript, the tape does not simply show what the
complainant said but the manner in which the account was given, that is, the
demeanour and voice inflection of the complainant.
Section 306U: Vulnerable person entitled to give evidence in chief in form
(1) A vulnerable person is entitled to give, and may give, evidence in
chief of a previous representation to which this Part applies made by the
vulnerable person wholly or partly in the form of a recording made by an
investigating official of the interview in the course of which the previous
representation was made and that is viewed or heard, or both, by the court. The
vulnerable person must not, unless the person otherwise chooses, be present in
the court, or be visible or audible to the court by closed-circuit television or
by means of any similar technology, while it is viewing or hearing the
recording.(2) Subject to section 306Y, a person is entitled to
give, and may give (no matter what age the person is when the evidence is
given), evidence as referred to in subsection (1) in the form of a recording of
a previous representation to which this Division applies made by the person when
the person was less than 16 years of age.(3) If a vulnerable
person who gives evidence as referred to in subsection (1) is not the accused
person in the proceeding, the vulnerable person must subsequently be available
for cross-examination and re-examination:(a) orally in the
courtroom, or(b) if the evidence is given in any proceedings
to which Division 4 applies – in accordance with alternative arrangements made
under section 306W.
Section 306V: Admissibility of recorded evidence
The hearsay rule and the opinion rule (within the meaning of the Evidence
Act 1995) do not prevent the admission of recorded evidence: s.306V(1).
Evidence of a pre-recorded interview is not to be admitted unless it is
proved that the accused person and his/her lawyer were given a reasonable
opportunity to listen to and, in the case of a video recording, view the
recording: s.306V(2), although provision is made for admission where the accused
consents or has otherwise been given a reasonable opportunity to listen to or
view the recording s.306V(3).
The Court may rule on the whole or any part of the contents of the recording:
Section 306W: Alternative arrangements for giving evidence
If the vulnerable person is to give further evidence in chief or be
cross-examined, the court may order alternative arrangements in accordance with
Division 4 [CCTV].
Section 306X: Warning to jury
Where evidence is given wholly or partly by way of a recording, the judge
must warn the jury not to draw any inference adverse to the accused person or
give the evidence any greater or lesser weight because of the evidence being
given in that way.
Section 306Y: Evidence not to be given in form of recording if contrary to
the interests of justice
The vulnerable person must not give evidence by way of a recording if the
court orders that such means not be used. The court can only so order if it is
satisfied that it is not in the interest of justice for the vulnerable person’s
evidence to be given by a recording.
Section 306Z: Transcripts
The court may order that a transcript be supplied to a jury if it appears to
the court that a transcript would be likely to aid its or the jury’s
comprehension of the evidence.
Division 4 applies to proceedings where it is alleged a person
has committed a personal assault offence; a complaint for an AVO; proceedings
before the Victim’s Compensation Tribunal. (s.306ZA)
Section 306ZB: Vulnerable persons have a right to give evidence by closed
A vulnerable person who gives evidence to which Division 4 applies is
entitled to give evidence by CCTV. If the vulnerable person is a child aged
between 16 and 18 at the time evidence is given in a proceeding to which
Division 4 applies, that child is entitled to give the evidence by way of CCTV
if the child was under 16 when the charge for the personal assault offence was
A vulnerable person may choose not to give evidence by those means:
A vulnerable person must not give evidence by such means if the court orders
that such means not be used. The court can only make such an order if it is
satisfied there are special reasons, in the interests of justice, for the
evidence not to be given by such means: s.306ZA(4) & (5).
The traditional view that an accused has a right to face his/her accuser
would not satisfy the exception of special reasons under
Section 306ZI: Warning to jury
In any criminal proceeding in which evidence is given by way of CCTV, the
judge must inform the jury that it is standard procedure for evidence of
vulnerable persons to be given by those means. They must also be warned that
they are not to draw any inference adverse to the accused and not give the
evidence any greater or lesser weight because of the use of those facilities.
Pre-trial taped interviews are, of course, purely hearsay. However, the
changes to the way in which the evidence vulnerable persons is received is based
on a number of policy considerations put forward by the ALRC:
· The first recorded account may be the most graphic and complete
account.· The recorded statement may be the only evidence against the
accused in the absence of eyewitness or medical evidence.· Reduction of the
overall trauma for the witness. [ALRC Report No 84, p332].I suggest there
are some significant disadvantages for an accused in the use of pre-recorded
· To a large extent, the quality and reliability of the recorded interview is
dependent upon the capacity of the interviewer not to ask leading or other
unfair questions. It may be that answers given in response to obviously leading
or unfair questions are excluded. However, such a course does not remedy a
situation where other answers in the recorded interview are tainted by an
earlier course of leading or otherwise unfair questions.· A very significant
disadvantage to an accused is where the evidence in chief is adduced by way of a
video recording but the witness, at time of trial, has little or no recollection
of he events in question. How then can there be effective
cross-examination?It may be that in such a situation an application should
be made that it is not in the interest of justice that the evidence be given by
means of a pre-recorded interview: s.306Y. Such an application might require a
form of inquiry on the voir dire to establish whether or not the complainant
does have a recollection of events.
The Court of Criminal Appeal had occasion to consider some of the provisions
under the (now repealed) Evidence (Children) Act 1997 in the case of
Regina v NZ  NSWCCA 278.
In that case the accused and co-accused, both juveniles, were charged with
offences against s.61J of the Crimes Act and, in the alternative,
offences pursuant to s.66C. The complainant was also a juvenile.
During the trial the evidence in chief of the complainant and several other
witnesses was given substantially by way of pre-recorded interviews. Transcripts
of the interviews were given to the jury and remained with them. Further
evidence in chief and cross-examination was conducted by way of video-link.
The jury found the appellant guilty of the s.61J offence and the co-accused
was convicted of the alternative s.66C count.
Two of the four grounds of appeal concerned the use of videotaped interviews
with Crown witnesses:
1. There was a miscarriage of justice as a result of the tender of the
videotapes containing only a portion of the Crown case against the appellant and
there (sic) being allowed to be used by the jury during their
deliberations.2. His Honour erred in failing to warn the jury against the
danger of giving disproportionate weight to the tendered videotapes during their
deliberations.There is no objection taken at trial to the use of the
procedure under the Evidence (Children) Act. There was no objection to
the tender of the videotapes as exhibits. No objection was taken to the
provision of the transcripts to the jury. No objection was taken to the
videotapes being available with the rest of the exhibits to the jury when they
Spigelman CJ was of the opinion that there had been a miscarriage of justice
as a result of the tender of the videotapes:
It is interesting to contrast the approach taken by the Court in
NZ with the approach taken in some of the Victorian cases. In
Victoria, section 37B of the Evidence Act 1958, allows persons under the
age of 18 to give evidence in chief by way of audio or video recording in
certain proceedings including proceedings relating to a “sexual offence”. It
appears the Victorian Court of Appeal has been more willing to find the
provision of the videotape to the jury and the lack of appropriate warning
constituted an irregularity so grave as to cause a miscarriage of justice.
[See discussion of the Victorian cases in NZ at paragraphs [128 – 151].
Although the appeal was dismissed in Regina v
NZ, Howie and Johnson JJ set out a “preferred
procedure” where evidence is to be adduced by way of pre-recorded interview: [at
However, the Court preferred a “more flexible approach” by considering the
significance of the evidence in the circumstances of the trial as a whole. [at
Other Provisions Relating to the Giving of Evidence by Complainants in
Sexual Assault Cases:
These provisions relate to adult complainants as well as child complainants.
Section 291 Criminal Procedure Act 1986 provides that any part of
the proceedings in which evidence is given by a complainant (in respect of a
prescribed sexual offence) is to be held in camera, unless the court otherwise
The court may order that the complainant’s evidence be given in open court
only if the court is satisfied that there are special reasons in the interests
of justice for so doing, or the complainant consents: s.291(3).
It is important to note that the principle that proceedings for an offence
should generally be open or public in nature, or that justice should be seen to
be done, does not of itself constitute special reasons: s.291(4).
S.294B provides that an adult complainant is entitled (but may choose not to)
give evidence by CCTV or give evidence by use of alternative arrangements made
to restrict contact (including visual contact) between the complainant and the
accused (including the use of screens).
A complainant must not give evidence by such means if the court is satisfied
that there are special reasons, in the interests of justice, for the
complainant’s evidence not to be given by such means: s.294B(6).
Special Provisions Relating to Retrials of Sexual Offences:
The Criminal Procedure Amendment (Evidence) Act 2005 commenced
operation on 12 May 2005. It establishes that, after a successful appeal against
conviction for a sexual assault offence, if a new trial is ordered, the Crown
may tender as evidence in the new trial, a record of the original evidence of
The provisions extend to proceedings for a new trial ordered by an appeal
court before commencement of the Act, including new trial proceedings that have
commenced or are part-heard.
The provisions are set out at s.306A to s.306G of the Criminal
Procedure Act 1986. Before turning to the provisions, it is helpful to
look at the Second Reading Speech to gain some insight into the reasoning behind
The Bill was precipitated by the decision by the DPP not to proceed with the
retrial of the Skaff brothers. That decision was made as a result of the
complainant in that matter refusing to testify a second time and the case could
not proceed without her evidence.
During the Second Reading Speech, Bob Debus said in part:
This Bill is part of an ongoing process of reform to improve the process
surrounding sexual assault prosecutions for complainants.”
Despite anything to the contrary in the Evidence Act, or any other
Act, a record of the original evidence of the complainant is admissible in the
new trial if the prosecutor gives notice to the accused and the court of the
intention to tender the record of the original evidence. The notices are to be
given no less than 21 days before the new trial commences or such other period
as the court may allow: s.306B(3).
The hearsay rule does not prevent the admission of a record of original
The court has no discretion to decline to admit a record of original
The court can give directions requiring a record of original evidence to be
edited for the purpose of removing inadmissible evidence: s.306B(6).
A complainant is not compellable to give further evidence: s.306C.
However, a complainant may, with the leave of the court, give further oral
evidence if he/she so chooses: s.306D(1).
The court is to give leave to the complainant to give further evidence only
if the court is satisfied that it is necessary that the complainant give further
oral evidence: s.306D(2):
· to clarify any matters relating to the original evidence of the
complainant; or· to canvas information or material that has become available
since the original proceedings; or· in the interests of justice.A record
of original evidence of the complainant tendered by the prosecutor must be the
best available record. For the purposes of Division 3, the best available record
is an audio visual recording, an audio recording if an audio visual recording is
not available, or a transcript of the evidence if neither an audio visual or
audio recording is available: s.306E.
If the record of original evidence proposed to be tendered in the new trial
is an audio visual or audio recording, the accused and his/her counsel is not
entitled to be given possession of the record or copy of it but are to be given
reasonable access to it: s.306F.
These provisions raise numerous concerns about the changes to the way in
which evidence has been traditionally adduced and whether these changes impact
upon the accused’s right to a fair trial:
· The presentation of a complainant’s evidence in this way places this
evidence in a special category. There is a concern that a jury might
impermissibly reason that the evidence is adduced in a “special” way because the
accused is guilty.· Until the evidence of sexual assault complainants is
video taped, retrials will proceed by way of tendering the transcript. How will
the evidence be read out to the jury, who will read it, will there be any
control over the manner in which the transcript is read eg will voice inflection
be monitored?· The accused may be prejudiced by a particular approach taken
by counsel in the first trial. Tactical decisions and quality of
cross-examination has little to do with an accused and everything to do with
counsel’s ability and experience.· In combination with other changes in the
way complainant’s evidence is adduced, there is a real concern that the
fundamental principle of the presumption of innocence is being
Honest and Reasonable Mistake as to Age:
Section 66C(3) of the Crimes Act:
Prosecutors argued that the repeal of s.77(2) of the Crimes Act was
intended to cover the field and that the revival of the doctrine of honest and
reasonable mistake of fact could not operate in cases of s.66C(3) offences.
Several District Court cases considered the question.
Regina v Haidar Hamed Al-Abodi
District Court (Campbelltown) 20 July 2005
The accused was charged pursuant to s.61J. Section 66C(3) is a statutory
The accused’s case was that the sex took place, it was consensual, and he
believed honestly and reasonably at the time that the complainant was above 16
Judge Goldring referred to s.77(2) and noted that the section had provided a
defence to certain charges if in fact the other person was female, was of or
above the age of 14 and under the age of 16, and the accused honestly and
reasonably believed that she was above the age of 16.
In considering the intention of Parliament in repealing s.77(2), his Honour
had regard to extrinsic material such as the Second Reading Speech, as he was
entitled to do pursuant to s.34(2) of the Interpretation Act 1987.
His Honour concluded:
It is also quite clear from that speech that the primary motive for this
legislation was to enact a package of legislation designed to remove the
distinctions between heterosexual and homosexual offences so that the higher age
of consent, which previously applied in homosexual cases, would no longer apply.
There appears to have been some political manoeuvring over this, as the result
of which s.77(2) was repealed.
But the effect of the repeal may not have been what the drafter intended.
The Attorney General’s intention was clear but the Act must be read in terms of
its meaning on its face. The Act now says nothing in terms about the defence of
honest and reasonable belief. The Court is therefore left with a dilemma and it
is quite clear that if the plain meaning of the words is ambiguous, which in my
view is the case here, a construction should be given which is most favourable
to the defendant
…in s.77 of the Crimes Act, the statute clearly makes the accused’s
knowledge of whether or not the other party consented irrelevant. There is,
however, no express mention of any other matter in respect of which the
requirement that the Crown prove mens rea is excluded. As a matter of statutory
construction I must assume, therefore, that the legislature did not intend to
exclude this common law requirement, and therefore the Crown must prove the
sexual intercourse and the person’s age. If the accused raises an honest and
reasonable belief that the person’s age was over 16, the Crown must negative
that. If it fails to do so it has failed to prove one of the elements of the
“The true position I believe is that the greater the seriousness and
criminality of the offence, the greater the need to establish an intention to
commit it”. (at p154)
Regina v Bradley Scott Yeo:
District Court Orange, 26 July 2005
Judge Nicholson SC
The judge was asked to rule prior to the trial commencing as to the
availability of the doctrine of honest and reasonable mistake of fact.
The Crown tendered the birth certificate of the complainant, which
established that at the time of the incident she was 15 years and 2 months old.
For the purposes of the judgement, his Honour accepted that the defence could
establish that the accused had an honest and reasonable belief that the
complainant was 16 years old.
His Honour concluded that the defence was no longer available in view of the
repeal of s.77(2). Referring to the 2003 Bill, his Honour said:
In other words, the defence provided by s.77(2)(c) had to this point in
time the effect of lowering the age of consent for females to fourteen years,
two years below the intended threshold of sixteen years, for those who could
satisfy a jury that they believed on reasonable grounds that the complainant was
sixteen years of age. The removal of s77(2)(c) had the effect of creating
absolute liability for the offence of sexual intercourse with a person under 16
years. It must be remembered that s66C had always been an offence of absolute
liability once the Crown had proved intercourse and the age of the complainant
as being under fourteen or, in the case of someone over fourteen, had proved the
absence of consent.
Section 77(1) provides that consent is no defence to a charge under s.66C.
That is, proving consent will not have the effect of making the intercourse
lawful, or any less unlawful. But for the exception provided in s.77(2) that has
been the law for some time.
The 2003 amendments remove the defence provided by s.77(2) leaving s.77(1)
as described above, that is, taking the defence of consent away from all those
who have intercourse with young persons under 16.” (pp9&10).
District Court 10 August 2005
Judge Brian Knox SC
The accused was charged pursuant to s.61J. There was no dispute that sexual
intercourse took place. The accused’s case was that the sex was consensual and
that he had been told the complainant was over 16 years of age.
A statutory alternative to s.61J is s.66C. A decision had to be made prior to
the accused being arraigned before the panel as to whether he would enter a plea
of guilty to the alternative count. Before that decision could be made a ruling
was sought as to whether a defence of honest and reasonable mistake as to the
age of the complainant was available.
The Crown submitted that the offence created by s.66C is effectively one of
strict liability. It was further submitted that a combination of s.77(1) and
s.77(2) “covered the field” in terms of available defences, thereby removing the
common law defence of honest and reasonable belief.
Judge Knox noted the following matters:
· A statutory offence imposing strict liability excludes both the requirement
of mens rea as well as the defence of honest and reasonable mistake:
Jiminez v R (1992) 173 CLR 572.· There is a strong presumption
that the common law defence is available unless there is clear evidence to the
contrary: He Kaw The v R (1985) 157 CLR 576.· Another matter
that required consideration is the seriousness of the offence. The greater the
seriousness and criminality of the offence, the greater the need to establish an
intention to commit it: Chard v Wallace (1988) 36 A Crim R at
147.· The issue is whether there was a clear intention to abolish the common
law defence. It is equally clear that if there is doubt about the interpretation
or applicability of a criminal statute, then a construction should be given most
favourable to the accused: Lavender v R  HCA 37 per Kirby J
at  – .
R v CTM
 NSW CCA131
In ·CTM  NSW CCA 131 the Court of Criminal Appeal
considered this issue. The appellant was charged with s.61J aggravated sexual
assault, but convicted at trial of the statutory alternative of s.66C(3) sexual
intercourse with child aged between 14 and 16. The appellant sought to argue
that the defence of honest and reasonable mistake applied to the offence under
s.66C(3). After considering the history of the legislative changes Howie J
concluded, (Hodgson JA and Price J agreeing)
THE LONGMAN DIRECTION
IntroductionThe Longman direction is the
warning to be given by trial judges in cases where there has been significant
delay between the offence and the trial. The warning draws the attention of the
jury to the disadvantage caused by the delay to the accused. The rationale for
the warning is that the delay can cause
potential dangers in acting upon particular evidence which may not, without
such a caution or warning, be appreciated by the jury. Longman
(1989) 168 CLR 79 per Deane J at 95-96.
Whilst used primarily in sexual assault cases, there is no reason the warning
should not be required in any case where there is a significant
“A Long and Rather Troubled History”The value and need for
the warning is largely uncontested in the case law since Longman.
Unfortunately the content and application of the warning are less settled,
resulting in a plethora of case law in both the NSW courts and the High Court
(and, no doubt, other states), and a situation where trial judges are left
This paper is an attempt to summarise the various aspects of the
Longman warning, as they have developed in the New South Wales
case law, in attempt to provide some guide to practitioners.
Substantial DelayThe first issue to be decided in a
particular case is whether the Longman warning is required.
There is no requirement to establish that the delay caused actual prejudice
to the accused, there being
The strength of the crown case is also irrelevant to the question of whether
the warning should be given or not. Doggett (2001) 208 CLR 343 per
Kirby J at -.
Whether a Longman direction is required in an individual case
depends largely upon the length of the delay. Predictably there is no
· great time Crampton (2000) 206 CLR 161 per Kirby J at
· sufficient time … to be material in any such respect
BKK  NSW CCA 525 per Sperling J at · substantial
delay BWT (2002) 129 A Crim R 153 per Wood CJ at CL at ; per
Sully J at · significant delay DBG (2002) 133 A Crim R 227
per Howie at · extensive delay, so that the absence of an effective
warning will itself lead to a miscarriage regardless of the attitude taken by
the parties at the trial MM (2004) 145 A Crim R 148 per Howie J at
While delays exceeding twenty years are clear See Longman
(1989) 168 CLR 79 and Crampton (2000) 206 CLR 161 the application
of the warning in lesser delays is less certain. In BWT (2002) 129
A Crim R 153 at  Sully J points out:
Content of the WarningIn Longman (1989) 168
CLR 79 at 90-91 Brennan, Dawson and Toohey JJ described the warning as follows:
In Stewart (2001) 124 A Crim R 371 at . and
MM (2004) 145 A Crim R 148 at . Howie J helpfully dissects
the warning into three components:
1. the warning (it is dangerous to convict)2. reasons for the
warning (because the accused has been prejudiced by delay)3. response
to the warning (to carefully scrutinise the evidence before convicting upon
The WarningLongman uses the term ‘dangerous
to convict’. (1989) 168 CLR 79 at 90-91 Subsequent cases have raised the
question as to whether these exact words need to be used. Although Sully J used
the term in his summary in BWT (2002) 129 A Crim R 153 at  he
conceded in Kesisyan  NSW CCA 259 at . the exact phrase
is not required. He went on to emphasise, however,
A refusal to use the term “dangerous to convict” can, however, result in
uncertainty and a multiplicity of cases where
“You could only convict the accused if you were satisfied beyond reasonable
doubt about the truth and reliability of the complainant’s evidence”
In defending the use of the term “dangerous to convict” Sully J
In the same case Hulme J suggests that disputes over the wording of the
The jury must be directed as to the reasons for the warning
· difficulties of recollection the passage of time causes the accused,
Doggett (2001) 208 CLR 343 per Gaudron and Callinan JJ at
,· depriving the accused of the opportunity to gather evidence which
might at least place a doubt upon the Crown case, Doggett (2001)
208 CLR 343 per Gaudron and Callinan JJ at ; BKK  NSW
CCA 525 per Sperling J at ; DBG (2002) 133 A Crim R 227 per
Howie J; Sheehan  NSW CCA 233 per Kirby J at
-.· the effect of the delay on the accused's ability to test and
challenge the evidence in the Crown case by cross-examination such as to reveal
any deficits that might relate to the credibility of the complainants.
WRC (2002) 130 A Crim R 89 per Greg James J at ;
DBG (2002) 133 A Crim R 227 per Howie J at -; JJB 
NSW CCA 129 per Kirby J at .Additional consequences of delay were raised
in their judgements in Longman by McHugh J
Although Spigelman CJ has pointed out that these observations are
Where there is extensive delay there is an irrebuttable presumption that the
accused has been prejudiced, although no specific detriment can be identified.
BWT (2002) 54 NSWLR 241 per Wood CJ at CL at ;
MM (2004) 145 A Crim R 148 per Howie J at  Thus the jury must
be directed that the delay did cause prejudice – a direction that
the delay may have caused prejudice, or that they should consider
whether prejudice has been caused, is insufficient. GS  NSW
CCA 73 per Buddin J at ; Percival  NSW CCA 409 per Adams
J at ; DBG (2002) 133 A Crim R 227 per Howie J at .
It would seem, however, that a trial judge is not required to draw attention
to every single possible prejudice, both real and imaginable, in his or her
warning to the jury:
It is not necessary for the trial judge to add the weight of a judicial
adoption of submissions to every kind of disadvantage that was or may have been
suffered in a particular case. It is, however, essential that judicial weight be
brought to bear for the proposition that there were such disadvantages and that
that was why it was necessary to give a warning of the character that was given.
DRE  NSW CCA 280 per Spigleman CJ at , . See also
Roberts (2001) 53 NSWLR 138; 124 A Crim R 60 per Howie J at .
Response to the Warning
The jury should be advised to
Stringency of WarningA review of the cases suggest that the
Longman direction should be strictly adhered to, both in application and
content. In BWT (2002) 129 A Crim R 153 at  Sully J suggests
In Crampton (2000) 206 CLR 161 at - Kirby makes the
following distinction between a warning and a comment
Comment will simply remind the jury of matters frequently within
common experience which they may ordinarily be taken to know but might have
forgotten or overlooked. Warnings derive from the special experience of
the law. The specific difficulties that an accused will have, in circumstances
of significant delay, in defending himself or herself in a criminal trial,
include securing evidence (comprising now scientific as well as lay evidence)
and gathering information promptly with which to test and challenge the evidence
of the accuser.”
The question of whether the requirement to identify the consequences of the
delay must also be framed as a warning has been raised by Howie in MM,
(2004) 145 A Crim R 148 at  where he argues
The presence of evidence corroborating the complainant does not obviate the
need for the warning. Doggett (2001) 208 CLR 343 per Gaudron and
Callinanan JJ at  and Kirby J at , Gleeson CJ and McHugh J dissenting;
GPP (2001) 129 A Crim R 1 Heydon JA at ; BWT
(2002) 129 A Crim R 153 per Sully J at ; DRE  NSW CCA
280 per Simpson J at . Given that the warning stresses the danger of
convicting on the complainant’s evidence alone, however, some adjustment may
need to be made to the wording of the warning. This can create further
difficulties for the trial judge as Sully J points out in BWT
BWT (2002) 129 A Crim R 153 per Sully J at . See also
WRC (2002) 130 A Crim R 89 per Hodgson JA at -.
A direction, which told the jury, they were
In Percival  NSW CCA 409 per Adams J at - a
direction suggesting the accused
In MM (2004) 145 A Crim R 148 at  Smart AJ suggested a jury may
not properly understand a direction that the evidence of the complainant “could
not be adequately tested”, and that some explanation is required to explain what
is meant by the phrase.
It is inappropriate to suggest that the Crown may also have been prejudiced
by the delay. MDB  NSW CCA 354 per Simpson J at -
quoting Folli  NSWCCA 531 per Mason P at . See also
Erohin  NSW CCA 102 per James J at .
A Longman direction is not required where the issue at trial is
consent. BKK  NSW CCA 525 at  per Grove
Continued DisquietIt is more than likely that controversy
and case law over the Longman direction will continue. At the same
time as formulating the practical guide to the Longman directions.
Sully J lamented
There is one additional matter worthy of present consideration.
(b) so far as it involves a finding of fact then it intrudes into the proper
role of the jury. Ibid at .