Legal Research > Papers by Public Defenders

Recent Developments in Sexual Assault Law

Dina Yehia
Public Defender
8 November 2006

Updated 23 October 2007

Many thanks to Jennifer Wheeler for tirelessly conducting research for this paper.

TOPIC 1

Provisions relating to the giving of evidence by complainants in sexual assault trials

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 This Act was recently amendment to incorporate the provisions of the Evidence (Children) Act 1997 which has been repealed.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 follows:

(2) For the purposes of this Part, a person is intellectually impaired if the person has:
(a) an appreciably below average general intellectual function, or
(b) a cognitive impairment (including dementia or autism) arising from, or as a result of, an acquired brain injury, neurological disorder or a developmental disorder, or
(c) any other intellectual disability.

The term “vulnerable person’ is used to refer to both children and person with an intellectual impairment. This paper has been amended to reflect these legislative changes.

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 of recording

(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: s306V(4).

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 circuit television

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 laid.

A vulnerable person may choose not to give evidence by those means: s.306ZB(3).

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 s.306ZA(5).



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 interviews:

· 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 [2005] 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 retired.

Spigelman CJ was of the opinion that there had been a miscarriage of justice as a result of the tender of the videotapes:


“The videotape evidence, by its very nature, is of greater force than a transcript. Whatever impression a jury may have been left with at the end of the complainant’s evidence as to her credibility could easily have been altered when the whole of the evidence was reviewed by the jury in the jury room”. [at 18].

His Honour was of the opinion that the appeal should be allowed and a new trial ordered. However, the other members of the court, Wood CJ at CL, Hunt AJA, Howie and Johnson JJ dismissed the appeal:

“Because the jury had the transcript of the videotape and because the image on the tape lacks any obvious power to influence the jury on whether they accepted the complainant or not, we do not believe that the irregularity in providing to the jury the videotape of the complainant’s evidence, if there was such an irregularity, could have brought about a miscarriage of justice in the circumstances of this particular case. It should be recalled that there was no defence case, in that the appellant did not give, or call, evidence. This will not necessarily be decisive on the question of whether a miscarriage of justice occurred by the procedure adopted with the videotape but it is a relevant matter to be taken into account.” [at 218].

A further matter taken into account as to whether there had been a miscarriage of justice in the circumstances of that particular case was the fact that the jury had requested a transcript of the cross-examination during the course of their deliberations.

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 210]


We should by now have made clear our view that this court should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape. However, we can summarise our views as to the procedure to be followed generally:

(a) the videotape evidence of a Crown witness should not become an exhibit and, therefore should not be sent with the exhibits to the jury on retirement;
(b) any transcript given to the jury under s.15A should be recovered from the jury after evidence of the witness has been completed;
(c) it is for the discretion of the judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;
(d) it would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed;
(e) if the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that “because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving disproportionate weight simply for that reason and should bear well in mind the other evidence in the case”; and
(f) the judge should consider whether the jury be reminded of any other evidence, for example the cross-examination of the witness at the time the tape is replayed or sent to the jury room, if that step is considered appropriate.
The Court considered it unnecessary to comment on the consequences of any failure to comply with any particular procedure or to give any particular warning. Their Honours noted the view expressed in Victoria that, at least in relation to the evidence of a complainant, unrestricted access to the tape and an absence of a warning or a reminder of cross-examination would result in procedural irregularity of such a nature that the proviso could not be applied.

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 212].

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 directs.

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).


TOPIC 2

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 complainant.

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 amendments.

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:


“Sexual assault in New South Wales – indeed in Australia – is a grossly underreported crime. Victim surveys reveal that more than half the sexual assaults that occur each year are perpetrated by the partner, boyfriend or former partner of the victim, and in a further 34% of cases by a person known to the victim. These assaults occur every day. They do not get headlines. Victims do not report their former partners or husbands, or people they thought were their friends. The Government is determined to provide support and assistance to victims of sexual assault at every stage of the process. As such, in recognition of the low reporting and conviction rates, the Government is introducing a number of reforms designed to assist complainants in the difficult task of giving evidence, thereby encouraging them to come forward and report sexual assault crimes.

This Bill is part of an ongoing process of reform to improve the process surrounding sexual assault prosecutions for complainants.”






Section 306B: Admission of evidence of complainant in new trial proceedings

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 evidence: s.306B(4).

The court has no discretion to decline to admit a record of original evidence: s.306B(5).

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 eroded.

TOPIC 3

Honest and Reasonable Mistake as to Age:

Section 66C(3) of the Crimes Act:


Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years.

Prior to 2003, s.77(2) was in the following terms:

It shall be a sufficient defence to a charge which renders a person liable to be found guilty of an offence under 61E(1A), (2) or (2A), 61N(1), 61O(1) or (2), 66C, 66D, 71, 72 or 76A or, if the child to whom the charge relates was under the age of 16 years at the time the offence is alleged to have been committed, to a charge under 61E(1), 61L, 61M(1) or 76 if the person charged and the child to whom the charge relates are not both male and it is made to appear to the court or to the jury before whom the charge is brought that:

(a) the child to whom the charge relates was of or above the age of 14 years at the time the offence is alleged to have been committed;
(b) the child to whom the charge relates consented to the commission of the offence; and
(c) the person so charged had, at the time of the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years.
Section 77(2) was repealed in June 2003. The question arose however as to whether the common law doctrine of honest and reasonable mistake of fact applied to an offence under s.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



Judge Goldring:

The accused was charged pursuant to s.61J. Section 66C(3) is a statutory alternative.

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 years old.

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 quite clear that, when the legislature repealed s.77(2), its principal intention was to establish a uniform age of consent below which an offence against a person, male or female, in respect of that offence consent would be irrelevant and s.77 now so reads.

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 offence.”

Judge Goldring relied on He Kaw The (1985) 157 CLR 543, and Chard v Wallis (1988) 36 A Crim R 147 where Roden J said:

“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:

“It was a Bill that sought to rationalise the age at which young persons could give “informed” or “meaningful” consent to others in respect of sexual activities. While it is true, a prime aim of the Bill was to set the benchmark at sixteen years as the age of consent for males as well as females, the Bill also sought “[to remove] the express statutory defence presently provided in s.77(2)(c) of the Crimes Act that the person charged had reasonable cause to believe, and did in fact believe that the child was of or above the age of sixteen years. As a consequence, it will no longer be possible to argue that a uniform age of consent of sixteen years creates an effective age of consent of fourteen years. (Second Reading Speech).

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).

In determining that the common law doctrine did not apply to s66C and that an honest and reasonable belief could not constitute a defence to the charge, his Honour said:
“My reasons for so directing the jury are that s.77 prohibits proof of consent. In the absence of consent the sexual intercourse prohibited by s66C remains unlawful no matter what belief the accused held in respect of the complainant’s age. Reasonable belief based upon age, is no defence to s.66C.”




R v Adam Christopher Douglas



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 [2005] HCA 37 per Kirby J at [93] – [95].




R v CTM



[2007] NSW CCA131

In ·CTM [2007] 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)

[124] It follows that in my opinion the repeal of s 77(2) did not activate the common law defence so that it applied to offences otherwise unaffected by the provisions of the Amending Act. Therefore, to find that the common law defence now arises in respect of the newly created offences in s 66C would result in a significant inconsistency between those offences and the offences that remained unchanged in the Act after the repeal of s 77(2). Yet frequently different types of offences are alleged involving the same complainant in the one indictment either as additional charges or alternative charges. It would not be at all surprising to find an offence under s 66C(3) on the same indictment as an offence under s 61N arising from the same facts. It would be confusing, to say the least, for defences to come and go depending upon what offence the jury was considering, notwithstanding that the offences all arose in the very same factual matrix and that the accused’s state of mind was identical for each offence. I find it impossible to see how such a situation could be consistent with any legitimate policy in relation to the protection of children under the age of consent.
[125] But even if the new offences are considered in isolation, in my opinion it can only be concluded that Parliament did not intend that there should be a defence of mistaken belief of age. Take for example the new s 66C(1) offence, having sexual intercourse with a child between 10 and 14. There can be no doubt that ever since at least 1921 the offence of having sexual intercourse with a child under the age of 14 was one of absolute liability, so far as the age of the child was concerned. Mistake of age has never been a defence. But does the common law apply to the new offence so that a reasonable belief that the child was over 16 would operate? True it is that a Proudman v Dayman defence does not apply merely because the accused thought that the child was over 14. Such a belief would not make the accused’s conduct innocent because he would be committing an offence under s 66C(3). But what if he honestly believed the child was aged over 16? I am not prepared to say that such a defence is so unlikely that it is of only theoretical significance. In any event, merely because such a defence might be improbable, it does not follow that it has no application. Clearly Parliament could not have intended that there be such a defence available to the new offence. Such a result would be completely inconsistent with the purpose of the Amending Act and the history of such an offence.
[126] But anomalies arise even when the offence under s 66C(3), the offence of which the appellant was convicted, is considered with the application of the common law defence. In order for the common law defence to arise, the accused must reasonably believe in facts that, if true, would cause his conduct to fall outside the statute. Although the concentration in the submissions has been on that part of the defence based upon a reasonable mistake of age, that fact alone would not avail the accused. This is because the accused would still be exposed to liability for an offence of sexual assault under s 61I unless he reasonably believed that the complainant was consenting. He cannot escape liability under s 66C(3) if he knew that he was having non-consensual intercourse but with a person he thought was over the age of 16.
[127] Therefore the common law defence would only apply if the accused reasonably believed that he was having consensual sexual intercourse with a person of or over the age of 16. If he raised that defence, the Crown would be required to disprove that he had such a belief. And yet consent is not an element of the offence: s 77(1). In effect the existence of such a defence would require the Crown to prove a sexual assault offence under s 61I, that is non-consensual intercourse. But under the statutory defence that was repealed the accused had to show that the complainant was in fact consenting. His belief about that matter was irrelevant. If the complainant was not in fact consenting, it did not matter whether he reasonably believed that she was.
[128] To read this offence as involving a common law defence is to put at nothing the history of the legislation or the intention of Parliament in enacting the new offences and repealing the defence. Since 1911 the accused has had to prove that the child was consenting or no defence arose notwithstanding his belief in the age of the child. It seems to me that the only reasonable conclusion is that Parliament intended that there should be no defence applicable to the new offences created by the Amending Act. Such a conclusion is consistent with the history of the offences, the scheme of the existing offences after the repeal of the statutory offence and the purpose of the Amending Act.

[134] An argument that has led at least one District Court Judge to favour the existence of the common law defence to the offence under s 66C has been to inquire whether Parliament intended to abolish the defence and then to find that it did not. In my view, with respect, that is asking the wrong question. It seems plain from the history of the legislation that the common law defence never existed for any of the child sexual assault offences and certainly not since 1910. It is impossible to conceive that the common law defence existed notwithstanding the statutory defence provided, when that defence was considerably more restricted than the common law defence and effectively placed the onus upon the accused to prove the facts that would bring him outside the statute. Therefore it is not appropriate, in my opinion, to inquire whether, in repealing the statutory defence, Parliament also intended that the common law defence should not operate. Parliament should be taken as having repealed the statutory defence in the belief that no other defence applied or would apply.
[135] Insofar as s 31(1) of the Interpretation Act might be relevant to existing offences under the Act, there was in my view, no existing common law defence that survived the repeal of the statutory defence. It is not correct, with respect, to refer, as one District Court Judge has done, to the “’firmly entrenched’ common law defence”. It is the principle of statutory construction presuming the application of the common law defence that is entrenched. There was no common law defence lurking, as it were, to arise when unshackled by the legislature’s repeal of the statutory defence.
[136] There has been a submission, based on a principle of statutory construction in relation to repealed legislation, that, once s 77(2) was repealed, it was as if it never existed and, therefore, the common law applied to the offences existing after the repeal. Whether or not such a principle can apply in general, it does not apply where the history of the legislation suggests otherwise: Hickling v Laneyrie, at 738. Here the common law defence never applied to sexual assault offences against children at least since 1911. The limited defence introduced in that year has existed in one form or another throughout the history of the Act for almost 100 years until s 77(2) was repealed. And yet it is argued that a more liberal defence has now arisen than the one that had been provided by Parliament and intentionally taken away. In my opinion that argument cannot be accepted. I would not construe any of the sexual assault offences as giving rise to the Proudman v Dayman defence.
[137] The strongest argument to support the submission that Parliament should not be taken as having intended that the common law defence would not apply to an offence under s 66C(3) is what the appellant referred to as “the absurdly Draconian result” of the possibility of a person being convicted of such an offence who genuinely and reasonably mistakes the age of a consenting complainant. I feel the repugnance that Roden J expressed and that is found throughout the judgments in He Kaw Teh to a serious offence being committed by accident. The immediate reaction to the Crown submission is surprise, if not shock, at the suggestion that the Crimes Act can have what are in effect absolute liability offences carrying substantial gaol penalties. Of course that was always so with a child under 14 but there can be no denying that as the child becomes older the likelihood of an innocent mistake becomes more likely. I also accept that it is notoriously difficult to tell the age of person with such accuracy as an absolute offence would require, and it is not uncommon for children approaching the age of 16 to disguise or lie about their age in order to be treated more favourably as an adult.
[138] The Crown submits that the fact of a person honestly mistaking the age of the child without any fault on his or her part can be taken into account on sentence even to the extent that, where there is no moral blame on the part of the offender, the charge could be dismissed without conviction: see Reg v Karaiskakis (1957) 74 WN (NSW) 457. But the offence is still an objectively serious one with a potential penalty of imprisonment for 10 years. The appellant points to the stigma and consequences that could follow a conviction regardless of the penalty imposed.
[139] This is a powerful argument but I am compelled largely by the history of the provisions, the manifest inconsistencies that would arise if the common law defence applied to the offences under s 66C, and the clear policy of Parliament, to find that there was a legislative intent that such a defence would not apply to the new offences, or otherwise, once s 77(2) was repealed. I come to this conclusion bearing in mind the significance of finding against the presumption of mens rea for serious offences. As I have already noted, it is clear that the repeal of the statutory defence was not accidental but was done with a full awareness that a defence that had existed was no longer going to exist and that as a consequence it must make it more difficult for an accused to escape conviction. I cannot believe that Parliament intended the consequence that the repeal of the statutory defence would make it more difficult to secure a conviction. Admittedly the Parliament appears to have been concerned with sexual predators but its intention was obviously to toughen child sexual assault offences generally, both so far as conviction and penalty was concerned, as a consequence of effectively lowering the age of consent for males.
[140] In Proudman v Dayman Dixon J indicated that, in determining whether the defence arose, the court is entitled to consider the subject matter of the legislation. In my opinion the purposive approach in construing offences of child sexual assault supports a finding that Parliament intended that no defence would apply in relation to sexual offences with children under 16 years. But I accept that of itself this consideration would not be sufficient to find in favour of absolute liability.
141 In the Attorney General’s second reading speech he said:
“The bill rationalises the age of consent in New South Wales to 16 years of age for all persons irrespective of gender or sexual orientation. The lower age limit is absolute – no specific statutory defence is provided for.”
The reference to the “lower age limit” is a reference to the reduction in the age of consent for males from 18 to 16. The reference to “absolute” can only mean that it was intended that there was to be no defence where the child is under that age. I do not take the reference to the absence of a statutory defence to suggest that the Attorney and Parliament believed that some other defence would apply: one that had never existed for child sexual offences in general and one that was considerably less onerous for an accused than the statutory defence that had been repealed.

[148] In my opinion there is no common law defence based upon mistake of age for an offence under s 66C(3) or otherwise in child sexual assault offences. (emphasis added)



TOPIC FOUR

THE LONGMAN DIRECTION



Introduction
The 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 delay.



“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 asking:

“What must I say to this jury if I am to have a proper professional confidence that whatever it is that I do say will withstand revision by those who will come later to it with the benefit of hindsight?”. WSP [2005] NSW CCA 427 at [76] per Sully J.
Both Heydon JA GPP (2001) 129 A Crim R 1 at [51] and Wood CJ at CL BWT (2002) 129 A Crim R 153 per Wood CJ at CL at [31]. See also Sully J at [95]. have commented on the ‘sharp divisions within the High Court about Longman warnings’, and Simpson J has referred to its “long and rather troubled history”. DRE [2006] NSW CCA 280 at [47].

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 Delay
The 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

an irrebuttable presumption that the delay has prevented the accused from adequately testing and meeting the complainant’s evidence; and that, as a consequence, the jury must be given a warning to that effect irrespective of whether or not the accused was in fact prejudiced in this way BWT (2002) 129 A Crim R 153 [13]-[14]. See also ibid per Sully at [95]; GS [2003] NSW CCA 73 per Buddin J at [21]; Percival [2003] NSW CCA 409 per Adams J at [9]; MM (2004) 145 A Crim R 148 per Howie J at [115]; DBG (2002) 133 A Crim R 227 per Howie J at [33].
The presence of corroborating evidence does not obviate the need for the warning, Doggett (2001) 208 CLR 343 per Gaudron and Callinanan JJ at [46] and Kirby J at [131], Gleeson CJ and McHugh J dissenting; GPP (2001) 129 A Crim R 1 Heydon JA at [61]; BWT (2002) 129 A Crim R 153 per Sully J at [95]; DRE [2006] NSW CCA 280 per Simpson J at [58]. although see the discussion below as to the complications the existence of such evidence creates for the formulation of the warning.

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 [137]-[138].

Whether a Longman direction is required in an individual case depends largely upon the length of the delay. Predictably there is no

mathematical formula applicable to a case of delay so that it can be said with certainty that, for a specified delay, a Longman warning must, or need not, be given to a jury. As in all such matters, it is necessary to consider the trial judge's instructions in the context of the contested issues in the trial and all of the evidence. Dyers (2002) 210 CLR 285 per Kirby J at [57]. See also Doggett (2001) 208 CLR 343 per Kirby J at [127]
Delay that will attract the Longman direction has been described as:

· great time Crampton (2000) 206 CLR 161 per Kirby J at [132]
· sufficient time … to be material in any such respect BKK [2001] NSW CCA 525 per Sperling J at [109]
· substantial delay BWT (2002) 129 A Crim R 153 per Wood CJ at CL at [13]; per Sully J at [95]
· significant delay DBG (2002) 133 A Crim R 227 per Howie at [33]
· 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 [120]
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 [95] Sully J points out:

What is not clear is whether there is any, and if so what, time lapse that would be generally regarded by current majority opinion in the High Court as not calling for the giving of a Longman direction.
He goes on to suggest that
While that state of affairs continues, it seems to me that the only prudent approach of a trial Judge is one that regards any delay between offence and complaint as sufficient to raise for consideration the need for a Longman direction. That consideration should concentrate upon two related factors, namely, the actual lapse of time involved in the particular case; and the actual risk of relevant forensic disadvantage in the particular case. It seems to me that, as matters stand, a trial Judge would be well advised to give a Longman direction unless it is possible to conclude reasonably: first, that the particular time lapse is so small that any reasonable mind would regard it as, in context, trifling; and secondly, that the risk of relevant forensic disadvantage would be seen by any reasonable mind as, (to borrow from Mason J in Wyong Shire Council v Shirt 1980) 146 CLR 40 at 47), “far-fetched or fanciful”.
Ultimately the question of whether the warning is required will depend upon the facts of the case. In any case where there is delay it is advisable to at least consider the applicability of the warning.



Content of the Warning
In Longman (1989) 168 CLR 79 at 90-91 Brennan, Dawson and Toohey JJ described the warning as follows:

[T[here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. (references removed)
In BWT (2002) 129 A Crim R 153 at [95] Sully provides the following useful summary, designed to provide a practical guide to trial judges WSP [2005] NSW CCA 427 per Sully J at [76].

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.
This summary was accepted by Kirby J Dyers (2002) 210 CLR 285 per Kirby J at [55] (High Court) as providing a correct summary of the law, and appears to be been largely accepted, with some reservation, as such by the Court of Criminal Appeal.

In Stewart (2001) 124 A Crim R 371 at [165]. and MM (2004) 145 A Crim R 148 at [114]. 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 it)

The Warning
Longman 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 [95] he conceded in Kesisyan [2003] NSW CCA 259 at [20]. the exact phrase is not required. He went on to emphasise, however,

it is essential for trial Judges to ensure that the substance of what is conveyed by the relevant charge to the jury does, indeed, accord with the substance of the principles established by the decision in BWT. Ibid at [21]
In view of a similar approach taken in other cases DBG (2002) 133 A Crim R 227 per Howie J at [28], [30]; Kesisyan [2003] NSW CCA 259 per Meagher JA at [8]; WSP [2005] NSW CCA 427 per Spigelman CJ at [13]-[18]; DRE [2006] NSW CCA 280 per Spigelman CJ at [25], per Simpson J at [59]; Wade [2006] NSW CCA 295 per Barr J at [23]-[24]. See SJB (2002) 129 A Crim R 572 per Levine J at [53] for a case where the failure to use the phrase meant a miscarriage of justice, although the result may be questioned in view of subsequent cases., it must be accepted that the failure to use the term ‘dangerous to convict’ will not vitiate the warning provided the terminology used captures the substance and force required.

A refusal to use the term “dangerous to convict” can, however, result in uncertainty and a multiplicity of cases where

small differences in terminology are said to constitute failure to comply with the requirements of a warning in accordance with Longman. DRE [2006] NSW CCA 280 at [1] per Spigelman CJ.
In WSP [2005] NSW CCA 427. the Court, Spigleman J, Sully and Hulme JJ, all experienced criminal appeal judges, disagreed over the sufficiency of the following warning

“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 states:

It is said in the Book of Proverbs that one’s man meat is another man’s poison. It is, I apprehend, not an impermissible or an illogical analogy that one man’s ritualism is another man’s consistency; and if ever there was a current need for consistency in criminal law and procedure, it is to be found, I would respectfully suggest, - in the need to give some consistent shape and direction to the necessity in a particular case for a Longman direction, and to the requirements of the direction should one be needed. Ibid at [92]

In the same case Hulme J suggests that disputes over the wording of the warning

can hardly be regarded as satisfactory but … is liable to arise whenever, in those cases where a Longman warning is required, trial judges choose to depart from the words used in Longman itself. There clearly are persuasive reasons for following the words used in that case, at least in the absence of factors that make that wording inappropriate. Ibid at [185]. See also Sheehan [2006] NSW CCA 233 per Kirby J at [75], [107].
Reasons for Warning

The jury must be directed as to the reasons for the warning

so that the jury understands its import and can evaluate the evidence appropriately to determine whether they should convict the accused notwithstanding the danger in doing so. Hence the bare warning derived from the passage above is not sufficient to overcome the possibility of a miscarriage if it is not accompanied by an explanation of the need for the warning and with sufficient information for the jury to be able to assess the evidence in light of the warning given. MM (2004) 145 A Crim R 148 at [113] per Howie J
Attention must be drawn to the difficulties the delay has caused the accused in adequately testing the evidence of the complainant, including:

· difficulties of recollection the passage of time causes the accused, Doggett (2001) 208 CLR 343 per Gaudron and Callinan JJ at [51],
· 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 [51]; BKK [2001] NSW CCA 525 per Sperling J at [108]; DBG (2002) 133 A Crim R 227 per Howie J; Sheehan [2006] NSW CCA 233 per Kirby J at [108]-[109].
· 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 [100]; DBG (2002) 133 A Crim R 227 per Howie J at [37]-[38]; JJB [2006] NSW CCA 129 per Kirby J at [95].
Additional consequences of delay were raised in their judgements in Longman by McHugh J

that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay Longman (1989) 168 CLR 79 at 108
and Deane J.
The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. Ibid at 101.

Although Spigelman CJ has pointed out that these observations are

“not part of the Longman warning and have never received authoritative acceptance” DRE [2006] NSW CCA 280 at [7], JJB [2006] NSW CCA 126 at [2].
their application, in an “appropriate case”, has been accepted by several High Court judges Crampton (2000) 206 161 per Gaudron, Gummow and Callinan JJ at [45]; Doggett (2001) 208 CLR 343 per Kirby J at [124]., as well as the Court of Criminal Appeal BWT (2002) 129 A Crim R 153 per Sully J at [95]; JBV [2002] NSW CCA 212 per Heydon JA at [14]; . It would seem the best approach is for a judge to
keep in mind not only the guidance given by the joint judgment in Longman itself, but also the additional considerations to which reference was made in their respective judgments by Deane J and McHugh J. BWT (2002) 129 A Crim R 153 per Sully J at [95]
A general warning as to the difficulties caused by delay is not sufficient.
[115] To ensure that the warning is effective the trial judge must relate the danger to the specific difficulties faced by the defence by reason of the delay. MM (2004) 145 A Crim R 148 per Howie J at [115]. See also GS [2003] NSW CCA 73 per Buddin J at [22]-[24].
Where there is actual prejudice to the accused that prejudice should be identified for the jury with particularity. DBG (2002) 133 A Crim R 227 per Howie J at [33]; MM (2004) 145 A Crim R 148 per Levine J at [29]

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 [14]; MM (2004) 145 A Crim R 148 per Howie J at [115] 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 [2003] NSW CCA 73 per Buddin J at [21]; Percival [2003] NSW CCA 409 per Adams J at [9]; DBG (2002) 133 A Crim R 227 per Howie J at [33].

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:

In order to comply with the requirements of a Longman warning it is not necessary for the trial judge to identify every conceivable disadvantage that could have been suffered. It is sufficient to do what has happened in this case, namely to focus on specific examples of disadvantage, even hypothetical ones, and to indicate that there may have been other disadvantages. His Honour did so by reference to submissions that the jury had just heard.

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 [2006] NSW CCA 280 per Spigleman CJ at [29], [31]. See also Roberts (2001) 53 NSWLR 138; 124 A Crim R 60 per Howie J at [52].

Response to the Warning

The jury should be advised to

scrutinis(e) the evidence of the complainant with great care, conscious of the danger, and paying heed to the warning. Only then, where the jury is nonetheless convinced that the evidence is both truthful and reliable, should it find the accused guilty of the offence. Sheehan [2006] NSW CCA 233 per Kirby J at [112]. See also Longman (1989) 168 CLR 79, and BWT (2002) 129 A Crim R 153 at [95] (quoted above).
There seems to be little dispute over this aspect in the cases!!!


Stringency of Warning
A 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 [95] Sully J suggests

It seems to be a fair inference from the various statements of principle of those five Justices of the (High) Court that they would all accept, at least to some extent, a measure of discretionary flexibility on the part of a trial Judge who is required to give a Longman direction. It seems to me, however, that the majority Justices regard that margin of discretion as being a very narrow one. It seems to be their Honours’ position that such a residual discretion is available for the purpose of strengthening what I might describe as the basic Longman direction; but that it is not available so as to water the basic direction down in any way.(emphasis added)
Kirby J in Dyers (2002) 210 CLR 285 at [55], and Spigelman CJ in WSP [2005] NSW CCA 427 at [2] and DRE [2006] NSW CCA 280 at [18] affirm the stringency of the test, although Howie J suggests that such stringency applies only to the warning itself and not to the additional comments made relating the warning to the evidence:
I have considerable difficulty in accepting the proposition that the mere failure of a trial judge to comment on one particular aspect of the complainant’s evidence, and one that is a matter of common experience, will automatically result in a miscarriage of justice notwithstanding that every other aspect of the warning and the accompanying comments were impeccable. MM (2004) 145 A Crim R 148 per Howie J at [121]




Warning not Comment
The cases are very clear that the Longman direction is a warning, and a direction in the nature of a comment is not sufficient. Crampton (2000) 206 CLR 161 at [39] per Gaudron, Gummow and Callinan JJ; per Kirby J at [124]; Roddam [2001] NSW CCA 168 per Howie at [32]; BWT (2002) 129 A Crim R 153 per Sully J at [95]; WSP [2005] NSW CCA 427 per Spigelman CJ at [14].

In Crampton (2000) 206 CLR 161 at [124]-[125] Kirby makes the following distinction between a warning and a comment

It is important to note the distinction made by the majority in Longman between comment (which a trial judge may and sometimes should give to ensure the fairness of the trial) and a warning (which in circumstances of “long delay” it is “imperative”, in the sense of obligatory, that the trial judge must give to the jury).

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 warning must be given with the authority of the Court:
The form of the warning must be such as bears unmistakably the imprint of the Court’s own authority. It must be made clear that the foundation of that authoritative warning of the Court itself is the accumulated experience of the Courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. BWT (2002) 129 A Crim R 153 per Sully J at [95]. See also Roddam [2001] NSW CCA 168 per Howie at [32]; Wade [2006] NSW CCA 295 per Barr J at [25].
In Wade [2006] NSW CCA 295 at [2]. Hunt AJ explains that the “authority of the court” means
no more than that the various warnings which either the legislature or the appellate courts have required trial judges to give in relation to various issues to be determined by the jury must be seen by the jury to be given on the judge’s own behalf, and not merely by way of reference to what counsel may have submitted to the jury. It does not require any particular form of words to demonstrate that the direction is being given by the judge on his or her authority.
The judge should not suggest to the jury the warning is being given merely as a matter of routine or formality Roddam [2001] NSW CCA 168 per Howie J at [36], or suggest that what is being conveyed is nothing more than common sense BWT (2002) 129 A Crim R 153 per Sully J at [95]..

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 [119] where he argues

The warning, therefore, is that contained in the passage from Longman set out at the commencement of these reasons. The matters in amplification of the warning, which point out the general and particular difficulties confronting the accused, are comments.




Some Don’ts
The reasons for the delay are irrelevant and to invite the jury to take such reasons into account would probably result in a miscarriage. Roddam [2001] NSW CCA 168 per Howie J at [40]; Roberts (2001) 53 NSWLR 138; 124 A Crim R 60 per Howie J at [52].

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 [46] and Kirby J at [131], Gleeson CJ and McHugh J dissenting; GPP (2001) 129 A Crim R 1 Heydon JA at [61]; BWT (2002) 129 A Crim R 153 per Sully J at [95]; DRE [2006] NSW CCA 280 per Simpson J at [58]. 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 [95]. See also WRC (2002) 130 A Crim R 89 per Hodgson JA at [74]-[75].

The decision in Doggett will mean, in practical terms, that the framing of a satisfactory Longman direction will be a much more fraught and difficult experience in a case where the particular complainant’s evidence does not stand entirely alone, but is supported, whether patchily or not, by some other evidence that is capable of being regarded reasonably as corroborative evidence. Those additional difficulties are pointed out clearly and compellingly, if I may respectfully say so, in the following portion of the judgment of Gleeson CJ in Doggett, (see paragraph [9]):
“If, by a Longman warning is meant a warning that it was unsafe to convict on the uncorroborated evidence of the complainant, in the circumstances of this case such a warning, to be of practical assistance to the jury, would have required the trial judge to go into the matter of corroboration, to direct the attention of the jury to the evidence capable of being regarded as corroborative and to explain its possible significance. Why would defence counsel invite that? As far as he was concerned, the less said about corroboration the better.”
The warning must avoid the error of inviting the jury to speculate upon what an accused may have been able to prove. BKK [2001] NSW CCA 525 per Grove J at [32]

A direction, which told the jury, they were

“required to ask [themselves] this, has the accused lost a chance of obtaining a fair trial” by reason of the delay in complaint“ … “to examine the evidence very carefully to make sure that the accused has not suffered a disadvantage.” … “to ask yourselves this, has the accused been put at a disadvantage because of the delay? That is, is it difficult for him now to prove his innocence”
was considered erroneous. GS [2003] NSW CCA 73 per Buddin J at [18], [19], [21].

In Percival [2003] NSW CCA 409 per Adams J at [10]-[12] a direction suggesting the accused

may have been prevented from leading evidence which demonstrated that it was “impossible” that the complainant’s account was true
was likewise ruled inappropriate.

In MM (2004) 145 A Crim R 148 at [63] 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 [2005] NSW CCA 354 per Simpson J at [39]-[40] quoting Folli [2001] NSWCCA 531 per Mason P at [22]. See also Erohin [2006] NSW CCA 102 per James J at [86].

A Longman direction is not required where the issue at trial is consent. BKK [2001] NSW CCA 525 at [54] per Grove J.

Continued Disquiet
It 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

It seems to me, if I may say so with unfeigned respect, that the combined effect of the decisions in Longman, in Crampton and in Doggett makes it, if not quite impossible, at least extremely and unnecessarily difficult for a conscientious trial Judge when directing a jury, to give dutiful effect, as of course he must do, to the requirements of those decisions, while simultaneously giving effect to the requirement that he be succinct, simple and clear.

There is one additional matter worthy of present consideration.

A common sense understanding of the real world suggests that a jury which is given a Longman direction in the form now apparently required, is likely to reason that the trial Judge, although he has stressed repeatedly that it is not for him to tell the jury how the facts should be found, is in fact sending a none-too-subtly coded indication to the jury that the dangers of convicting are such that the jury ought to return a verdict of not guilty. BWT (2002) 129 A Crim R 153 [114], [118].
In the same case per Wood CJ at CL raised the following concerns
In summary, in relation to this specific aspect of this appeal, I repeat my concern that the direction currently required amounts to a warning that, in fact, the accused was unable by reason of the delay to test or to meet the prosecution case. Two problems emerge:
(a) the giving of such a direction involves a finding of fact that this was the case, whereas it might not be so – indeed it may be positively incorrect; and

(b) so far as it involves a finding of fact then it intrudes into the proper role of the jury. Ibid at [39].

In SJB (2002) 129 A Crim R 572 at [54] Levine J comments
I am in complete agreement with the observations generally made both by Sully J and Wood CJ at CL as to the state of the law and particularly as to the perilous position in which a trial judge can find himself or herself in this most delicate area of the law in terms of the performance of the judicial duty with impartiality.