R v MBX[2013] QCA 214

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I have had the advantage of reading in draft the reasons for judgment of Applegarth J.  I gratefully adopt and will not repeat his Honour’s explanation of the relevant factual and procedural background.

2. As to the first ground of appeal, that the trial judge erred in not directing the jury that attempted rape or indecent treatment was open on the evidence as an alternative verdict, the analysis in [51] – [54] of his Honour’s reasons explains why neither alternative was fairly raised on the whole of the evidence. As his Honour has also explained (at [58]), defence counsel apparently made a tactical decision for arguably good forensic reasons to leave the jury with a simple choice between conviction on rape or a complete acquittal. Applying Thomas JA’s analysis in R v Willersdorf [2001] QCA 183 at [20] (with which McPherson JA and Chesterman J agreed, and which, as Applegarth J points out at [28] has been adopted in subsequent decisions) the trial judge did not err in failing to leave attempted rape or indecent treatment as alternative verdicts.

3. As to the second ground of appeal, which contends that the trial judge inadequately directed the jury on the consequences of delay, I would adopt [112] – [113] of Applegarth J’s reasons. Similarly, I would adopt [117] – [133] of his Honour’s reasons for rejecting the third ground of appeal, which contends that the trial judge should have cautioned the jury about certain features relating to the complainant’s credibility.

4. I would dismiss the appeal for these reasons.

5. APPLEGARTH J:  The appellant was convicted of three counts of rape against his nephew.  The three acts of anal penetration which the jury found proved were alleged to have occurred when the complainant was aged between four and six, on occasions when he was visiting his grandparents.  The appellant lived in a detached flat situated at the complainant’s grandparents’ house.

6. The complainant recalled that the appellant invited him into the flat to play a computer game. After sexual activity, including anal penetration, the appellant was said to have told the complainant that if he did not do as he was told then the appellant would tell people and the complainant would be “in heaps of trouble.” The second and third incidents followed a similar pattern, and the three incidents happened over a period of a few months. The complainant was “pretty sure” that they occurred before he started school in January 2000.

7. The complainant, his mother and his brothers would visit his grandparents’ house, but sometimes he would visit without his mother. According to the complainant, only his grandmother, the complainant and a brother were at his grandparents’ house on the day when the third rape occurred in his uncle’s detached flat.

8. When the complainant was 15, he confided to a school friend that his uncle raped him when he was younger. He told others the same thing and he was interviewed by police in May 2010. The complainant’s evidence was that penetration of his anus had occurred on each occasion. There was no evidence of bleeding.

9. The defence case was that no such incident occurred. The absence of bleeding, the absence of contemporaneous complaint and other matters were relied upon as evidence that the charged offences did not occur.

10. Before counsel addressed the jury, the learned trial judge raised the issue of whether attempted rape should be left as an alternative. The prosecution’s submission was that the complainant’s evidence was not of an attempt, was of feeling pain and that penetration to any extent constituted the offence. After seeking instructions, the experienced defence counsel who appeared for the appellant at his trial advised the trial judge that the defence position was that only rape should be left to the jury. Defence counsel noted that he had not cross-examined the child on the attempt aspect or the penetration aspect. It was “really whether the act happened or not.”

11. In summing up, the trial judge identified the critical issue as whether there was penetration to any extent.

12. The delay of about ten years between the alleged incidents of anal rape and the police investigation in 2010 led to a “Longman direction” being given to the jury about the forensic disadvantage the appellant suffered in not being able to adequately test the complainant’s evidence, to obtain forensic evidence and to assemble, soon after the alleged incidents, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incidents happened.

13. The trial judge warned the jury that it would be “dangerous to convict on the complainant’s testimony alone unless, after scrutinising it with great care and considering the circumstances relevant to its evaluation and paying heed to this warning, you were satisfied beyond reasonable doubt of its truth and accuracy because there is not other evidence to support him. His evidence, in effect, stands alone.”

14. After a lengthy period of deliberation, the jury returned guilty verdicts on 25 May 2012 on each count, and the appellant was sentenced to 10 years imprisonment.

Issues on appeal

15. The appellant abandoned the ground of appeal that the verdicts were not reasonable, and grounds of appeal relating to pre-trial rulings. The appellant also abandoned an application for leave to appeal against sentence. On his appeal against conviction, the appellant obtained leave to amend the Notice of Appeal so as to argue in substitution the following grounds:

“(1)The learned trial judge erred in failing to direct the jury that either attempted rape or alternatively indecent treatment was open on the evidence as an alternative verdict;

(2)There [was] a miscarriage of justice because the learned trial judge inadequately directed the jury on the consequences of delay as formulated in Longman v Queen;

(3)There was a miscarriage of justice because the learned trial judge failed to caution the jury about features relevant to the complainant’s reliability which, taken together with the absence of corroboration, required a judicial warning.”

16. The respondent submits that there was no error in not leaving alternatives for the jury, particularly when counsel for the appellant at trial submitted that only the rape charges should be left, and sought to use the complainant’s concession that there was no bleeding to the appellant’s forensic advantage. The respondent submits that the Longman direction was sufficient, and that the summing up also adequately identified the matters about which the jury would evaluate the complainant’s evidence with great care.

Ground One: Should the trial judge have left alternative offences to the jury?

Parties submissions

17. The parties’ submissions upon this ground of appeal cite only two decisions: R v Rehavi^[1] and R v Willersdorf.^[2]  In addition, the appellant submits, citing Stevens v The Queen, that a jury is entitled to refuse to accept the cases of the parties and to work out for itself a view of the case which does not exactly represent either the prosecution or defence cases.^[3]  The appellant submits that a reasonable assessment of the evidence, including the lack of evidence of bleeding in such a young child, permitted the possibility that the complainant experienced something other than penile penetration.  Alternative offences should have been left to the jury despite defence counsel’s submissions.  The failure to direct the jury on alternative verdicts is said to have deprived the appellant of a fair chance of acquittal of the counts of rape.

18. In reply, the respondent submits that the complainant’s evidence about penetration was unequivocal. The complainant’s evidence in this regard when interviewed by police in mid-2010 when he was 15, and the pre-recorded evidence he gave in January 2012 when he was 17, supports that submission. The evidence was that the appellant put his penis in the complainant’s anus and it hurt. The complainant agreed there was no bleeding, and defence counsel relied on this, the absence of contemporaneous complaint of pain and other matters, to submit that the jury would not be satisfied beyond reasonable doubt of the truthfulness or reliability of the complainant’s evidence. As noted, at the conclusion of the evidence the trial judge raised the issue of leaving attempted rape as an alternative, but neither the prosecutor nor defence counsel supported this course.

Relevant principles

19. Section 578(1) of the Criminal Code 1899 (Qld) provides that upon an indictment charging a person with a crime of rape, the person “may be convicted” of any offence, if established by the evidence, defined in the sections mentioned in that subsection.  These sections include s 210, which concerns the offence of indecent treatment of a child under the age of 16 years.

20. Section 583(1) provides that upon an indictment charging a person with committing any offence, the person “may be convicted” of attempting to commit that offence. Section 350 provides that any person who attempts to commit the crime of rape is guilty of a crime.

21. The rules concerning presentation to the jury of alternative verdicts are not prescriptive. They are governed by the trial judge’s duty to ensure a fair trial according to law.^[4]  This Court has held that whenever an alternative verdict “fairly arises for consideration on the whole of the evidence” then failure to leave it to the jury prima facie deprives the accused of a chance of acquittal of the principal offence.^[5]  However, as Kiefel J (with whom Hayne, Heydon and Crennan JJ agreed) stated in R v Keenan:

“A trial judge’s duty to ensure a fair trial does not mean that the lesser charge must be left to a jury in every case.  It is a question of what justice to the accused requires.  Putting the lesser charge to a jury might jeopardise the accused’s chance of a complete acquittal in some cases.”^[6]

22. In considering this ground of appeal, it is appropriate to turn first to R v Rehavi and R v Willersdorf.  As Fryberg J (with whom McMurdo P and McPherson JA agreed) stated in R v GS, those cases raise a number of very complex issues and those issues have been discussed at considerable length in decisions in other Australian jurisdictions.^[7]  It is appropriate to refer to some recent authorities to identify the factors that bear on whether an alternative offence should be left to the jury.

23. When R v Rehavi was decided by this Court in 1998, two lines of authority competed for acceptance.  The first, reflected in R v Fitzpatrick, was that:

“… a trial judge has a duty in his summing-up to direct the jury as to any alternative verdict that is open on the evidence, even if such a verdict has not been mentioned by counsel in their final addresses, or even by the prosecutor in his opening address …”^[8]

The second, reflected in R v Pureau, was that:

“… the judge’s obligation to put an issue to the jury which has been neither propounded nor developed by the Crown is one which arises only out of his duty to ensure a fair trial according to law, and that he must keep in the forefront of his mind in deciding to do so the fairness of such a course and, in particular, any tactical disadvantage which it may create for the accused …”^[9]

24. In Benbolt v The Queen, King CJ followed the general proposition stated by Matheson J in R v Fitzpatrick and continued:

“There is, however, an overriding obligation on the trial judge to ensure that the accused is accorded a fair trial.  There may be situations in which the leaving of alternative verdicts to the jury would, having regard to the course of the trial, amount to a denial of natural justice.  In such cases, the judge would be justified in not leaving the alternatives to the jury …”^[10]

His Honour added that it was not unwise for trial judges to raise alternatives on their own initiative: 

“There are strong considerations of justice and policy in favour of the disposal of all alternatives at the trial and the judge ought not lightly to take a course which would preclude consideration of an alternative to the offence charged.  I consider that it is his duty to raise alternatives on his own initiative if there is a reasonable basis for them in the evidence, subject only to overriding considerations of fairness.

… The principle is clear that a failure to direct a jury as to an alternative verdict of a lesser offence open to them does not entitle the accused to complain unless the failure had deprived him of a chance of acquittal of the major crime.”^[11]

25. In R v Rehavi, this Court considered Benbolt v The Queen, other Australian authority and a decision of the English Court of Appeal before concluding:

“There is a public interest in a fair trial and a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused.  To shut the jury out from the lesser verdict compromised the verdict given.  There was, in our view, a real risk that the jury, being persuaded that the appellant had inflicted serious injury on the complainant, and without compromising their oaths, were prepared to infer the necessary intent rather than acquit him altogether.  The appellant has thereby been deprived of the opportunity of a verdict on the lesser offence.”^[12]

26. In R v Willersdorf, Thomas JA (with whom McPherson JA and Chesterman J agreed) stated:

“The duty to inform the jury of available alternative verdicts is an aspect of the duty of a trial judge to see that the trial is conducted according to law and that the jury is properly instructed in relation to available defences.  The proper discharge of that duty does not require the presentation of every conceivable defence.  To do so might tend to obfuscate the true defence.”^[13]

27. The following passage from R v Willersdorf was relied upon by the appellant:

“The ultimate conclusion in Rehavi is that a jury should be permitted to return any verdict available on the evidence if this is consistent with justice to the accused.  The reservation ‘consistent with justice to the accused’ of course recognises inter alia that there are situations such as a true ‘all or nothing’ case, where the offering of conviction on a lesser charge might jeopardise the accused’s chance of complete acquittal.  Consistently with the authorities including Rehavi, I conclude that whenever an alternative verdict fairly arises for consideration on the whole of the evidence then failure to leave it to the jury prima facie deprives the accused of a chance of acquittal of the principal offence.  A tactical request from defence counsel is a matter that must be taken into account in the overall assessment of miscarriage of justice, but it is not conclusive.  The ultimate duty to ensure fairness rests with the trial judge, and this is not always achieved by acquiescing in the request of defence counsel.”^[14]

28. In later decisions of this Court, the requirement stated in R v Willersdorf that the alternative verdict “fairly arises for consideration on the whole of the evidence” has been adopted.^[15]

29. In R v GS, the appellant argued the trial judge erred in failing to leave to the jury alternative verdicts of indecent treatment pursuant to s 578 of the Criminal Code 1899 (Qld).^[16]  This Court cited long-standing authority that the alternative offences specified in that section should not be left to the jury unless there is evidence upon which it would be open to the jury to convict on those offences.  Under s 578 the jury can convict of a specified offence only if that offence is established by the evidence.  As Fryberg J observed:

“If the state of the evidence is such that it would not be open to the jury to convict, it would be pointless to leave the alternative offence.  Logically, the first question therefore is whether it was open to the jury to convict the appellant of the alternative offence.”^[17]

30. After considering the evidence, Fryberg J stated that the matter may be tested by supposing the alternative had been left to the jury and had founded a conviction: could the appellant successfully argue on appeal from such a conviction that there was no evidence upon which the conviction could safely be based.^[18]

31. The Court rejected the submission that an alternative verdict must be left to the jury whenever there is some evidence to support it, regardless of the interests of justice.^[19]  It was sufficient to dispose of the appeal to conclude that, even if the alternative verdict was open on the evidence, there were a number of factors that would have made it inappropriate for the judge to have left it to the jury.  Those factors were “that counsel for the appellant positively requested the judge not to leave the alternative verdict; that he did so for tactical reasons; and that he did so on instructions.”^[20]

32. In R v Mead, this Court concluded that the appellant’s contention that an alternative verdict of stealing should have been left to the jury would have been persuasive, but for the appellant’s reasons for requesting at trial that it not be left to the jury.^[21]  The appellant having requested at trial that the alternative verdict not be left to the jury, this Court concluded that it was not a case:

“… where the alternative verdict of stealing fairly arose for consideration on the whole of the evidence.  It was not the way the case was conducted, and defence counsel, for arguably sound forensic reasons, considered the appellant would be prejudiced by the changing prosecution case if the alternative offence of stealing was left for the jury to consider.”^[22]

33. As can be seen, the requirement stated in R v Willersdorf that the alternative verdict “fairly” arise for consideration on the whole of the evidence was taken to comprehend the fairness of putting to a jury an alternative verdict which the appellant’s counsel at trial, for arguably sound forensic reasons, requested not be left to the jury.

34. In R v Rehavi, it was stated that “a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused.”^[23]  This observation may focus on the injustice to the accused in being deprived of the opportunity of a verdict on a lesser, alternative offence.  The general obligation to direct a jury about an alternative verdict that is reasonably or fairly open on the evidence rests on broader considerations of what is required in the interests of justice.  These considerations were highlighted by Lord Bingham in R v Coutts who observed:

“The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support.  I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree.  I would also confine the rule to alternative verdicts obviously raised by the evidence:  by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial.  Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction.  In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment.  A defendant may, quite reasonably from his point of view, choose to roll the dice.  But the interests of society should not depend on such a contingency.

It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant’s right to a fair trial.  This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged.  But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient.  There may be unfairness if the jury first learn of the alternative from the judge’s summing-up, when counsel have not had the opportunity to address it in their closing speeches.  But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches.  They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct.  Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise.  It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal.”^[24]

35. I do not understand these statements as detracting from the principle stated in R v Willersdorf that a trial judge’s duty to ensure a fair trial according to law does not require the presentation of every conceivable defence.  To do so might tend to obfuscate the true defence.^[25]  In some cases, putting the lesser charge to a jury might unfairly jeopardise the accused’s chance of a complete acquittal.

36. The Queensland authorities cast the duty to leave an alternative verdict to a jury if it “fairly” arises for consideration on the whole of the evidence.  Decisions in other Australian jurisdictions have adopted different formulations of the evidentiary threshold that must exist before an alternative verdict is put to a jury, and the other considerations which determine if it is in the interests of justice for a lesser, alternative verdict to be left.

37. In R v King, Smart AJ reviewed many authorities and concluded that where a serious offence is charged and there is a lesser alternative offence, the conviction for which “would be a viable outcome on the evidence, that is, the evidence is such that a conviction for the lesser alternative offence would represent a rational result … it is in the interests of justice for the alternative count to be left.”^[26]  However, limits to this principle were identified, including:

1. where there is no dispute that the full offence charged was committed and the issue is whether the Crown has proved that the defendant committed it; and

2. where the principal offence is grave and the alternative alleged is comparatively trifling and remote from the real point in the case.

38. Other principles that emerged from the authorities were that:

1. If the Crown wishes the jury to consider the alternative offence in the event of their finding the accused not guilty of the principal offence the Crown must open the alternative offence to the jury.

2. The judge should leave the lesser offence where conviction on that is a viable outcome even if the accused does not seek that where it is in the interests of justice and in the interests of the accused to do so.^[27]

39. The state of the evidence was said by Smart AJ to be critical in deciding whether to leave the lesser offence.  The lesser offence was not to be left to the jury “if the evidence in support of it is flimsy or the prospect of a conviction on the lesser offence rather than the major offence is fanciful.”^[28]  In the same case Grove J (who agreed with Smart AJ as to the outcome of the appeal) likewise framed the issue as being whether there is on the evidence “a viable case of an available verdict of guilty of a lesser offence than that charged.”^[29]  Davidson AJ, who reached a different view to Smart AJ on an assessment of the evidence in that case and who dissented as to the outcome of the appeal, stated that it was clear from the authorities analysed by Smart AJ that “it is only when there is an evidentiary basis for the lesser offence that the judge should leave it as an alternative verdict available to the jury”, and that much will depend on the way the trial was conducted and on what the interests of justice and fairness demand.^[30]

40. Smart AJ’s analysis of the relevant principles has been cited with approval in subsequent decisions of the New South Wales Court of Criminal Appeal.^[31]

41. The Full Court of the Supreme Court of South Australia in R v Tilley reviewed the authorities and stated:

“In short, at common law, … the following propositions emerge from the case law. Merely because an alternative verdict may theoretically be open or possible in the broadest sense, this is not enough to require an alternative verdict to be left. It must be a ‘reasonably open’ or ‘fairly and practically open’ or a ‘viable rational result’ on the evidence before the jury. The duty to put an alternative verdict lies with the trial Judge, regardless of whether or not the prosecution or defence raise the issue. Thirdly, the putting of an alternative verdict to the jury must not result in a miscarriage of justice.”^[32]

42. The principles governing whether it is in the interests of justice for a lesser alternative offence to be left to the jury have been considered in a number of decisions of the Victorian Court of Appeal. R v Nous considered the application of these principles in a rape case where an alternative verdict of indecent assault was not left to the jury.^[33]  The Court of Appeal (Neave and Redlich JJA and Lasry AJA) reviewed earlier authority before concluding that the following factors bear upon whether, in the interests of justice, in cases other than murder/manslaughter, a lesser alternative offence should be left to the jury:

“(1)the presence of evidence which raises the alternative offence as a real and not remote or artificial possibility;

(2)reliance by a party upon such evidence in the course of the trial as evidence which is inconsistent with proof of one or more of the elements of the more serious offence;

(3)a real chance that the jury may convict the accused of the lesser offence; and

(4)a request by a party that the lesser alternative offence be left to the jury.”^[34]

43. The Court continued:

“49While the last of these factors may inform the trial judge’s analysis of the real issues, the absence of such a request will rarely be decisive to the trial judge’s decision. The responsibility for deciding what are the real issues to be left to the jury resides with the trial judge and not with counsel. Where the trial judge is of the opinion that there is a real issue as to whether the prosecution has established an element of the more serious offence and, after discussion with counsel, considers that there is a real possibility that the jury could find the accused guilty of the lesser alternative offence, that offence should be left to the jury.

50A failure by counsel at trial to request that the alternative lesser offence be left to the jury will generally assume great significance on an appeal if complaint is made for the first time that the lesser alternative offence was not left to the jury. Counsel’s duty was to assist the trial judge in discharging the obligation to give the jury such instructions as to the law as are necessary to enable the jury to decide the issues in the case. The forensic decision to leave the jury with the stark choice between conviction on the more serious offence and complete acquittal will weigh heavily against any submission that the accused was deprived of a chance of acquittal of the more serious offence because the opportunity of a conviction on the lesser offence was not left to the jury. Similar considerations led the Queensland Court of Appeal in R v GS to conclude that there was no miscarriage of justice where the trial judge acceded to a request by counsel, on instructions, not to leave the lesser alternative.”^[35]

44. In R v James the accused was charged on a count of intentionally causing “serious injury” and a second count of recklessly causing “serious injury”.  Defence counsel, for forensic reasons, deliberately decided not to ask the judge to direct the jury about lesser alternatives, namely intentionally causing injury or recklessly causing injury.  During the course of the trial, the “injury” alternatives were never perceived by any party as being realistically open.  One of the appellant’s grounds of appeal was an alleged failure to leave the lesser alternatives.  Whelan JA (with whom Maxwell P agreed) considered the issue of the trial judge’s legal obligation in relation to lesser alternatives in those circumstances.  After reviewing the authorities, including R v Nous, Whelan JA stated that the test to be applied in determining whether lesser alternatives are to be left is what justice requires in the particular circumstances of the case, and in that context “the position taken by defence counsel at trial may be a significant factor.”^[36]

45. Priest JA also reviewed the authorities, but disagreed with the fourth point made in R v Nous.  His Honour stated that in the same way that an accused person cannot be disentitled, by the conduct of his or her counsel, from having a defence left which might result in acquittal or conviction for a lesser offence, an accused person cannot become disentitled from possible conviction for a lesser alternative by the “tactics of counsel.”^[37]  Priest JA expressed the opinion that if a lesser alternative verdict is “realistically open”^[38] on the evidence then “no matter the forensic decisions of counsel” a trial judge is required to leave the lesser alternative.  This was said to be subject to the two qualifications identified in R v King.

46. There are three reasons why I do not accept the view of Priest JA that a trial judge is obliged to put lesser alternatives, notwithstanding the “calculated abstention”^[39] of defence counsel from requesting that they be put.  The first is that the authorities of this Court identify the forensic choices made by defence counsel as a relevant factor.  The second is that the decisions of the Victorian Court of Appeal, including R v Nous and the majority in R v James, do the same.  The third is that the views of Priest JA are convincingly countered by the reasons of Maxwell P in R v James.

47. Maxwell P explained the significance of decisions made by defence counsel about the best way to conduct a trial in the interests of the accused. The proposition, which underpinned the decisions considered by his Honour, was said to be that, in an adversarial system, the making of such decisions on behalf of the accused is itself an exercise of the right to a fair trial.^[40]  A rational forensic decision by counsel not to request that an alternative be left is likely to be very significant in determining whether the failure to leave the alternative offence produced a miscarriage of justice.  An objective test is applied in deciding whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage.^[41]  As the Victorian Court of Appeal stated in R v Miletic:

“The fact that, in hindsight, the decision did not work the advantage for which counsel and the applicant hoped is not to the point. Decisions made during the course of a trial as to the best tactics to follow are decisions which ‘depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions’.”^[42]

48. The test stated in R v Willersdorf and other Queensland authorities of asking whether an alternative verdict “fairly arises for consideration on the whole of the evidence”, may be thought to comprehend the four factors identified in Nous.  The authorities have adopted different expressions to describe the threshold evidentiary requirement that there be evidence which raises the alternative offence.  These include that the evidence raise the alternative offence as “a real and not remote or artificial possibility”.  The New South Wales authorities state that conviction on the alternative offence must be a “viable outcome”.^[43]  In Queensland, a provision such as s 278, may set an evidentiary requirement, namely that the alternative offence is “established by the evidence.”  Before an alternative offence is put to a jury, it must “fairly arise for consideration”.  There must be a real chance that the jury may convict the accused of the lesser offence, and such an offence will not fairly arise for consideration on the whole of the evidence if there is no evidence upon which a conviction for the alternative offence could safely be based.

49. In summary, the duty to leave an alternative verdict to the jury depends upon the interests of justice, and the interests of justice are not determined by a request or the absence of a request by counsel to leave an alternative verdict. A request to leave an alternative verdict will not determine the matter if the alternative is not fairly open on the whole of the evidence. The interests of justice, including justice to the accused, may oblige a judge to leave an alternative verdict which is fairly open on the whole of the evidence in the absence of a request from defence counsel. The interests of justice, including the public interest that a guilty party is convicted of an alternative, lesser offence that is fairly open on the evidence, may oblige a judge to leave that alternative verdict despite a request by defence counsel that it not be left.  The interests of justice are not determined by the tactical choices of defence counsel, acting on instructions, to “roll the dice.”  The duty of a trial judge to ensure a fair trial does not mean that a trial judge will acquiesce in any request made by counsel.  Lord Bingham’s speech in R v Coutts explains why this is so, and as Thomas JA stated in R v Willersdorf, the ultimate duty to ensure fairness is not always achieved by acquiescing in the request of defence counsel.

50. The failure of defence counsel to seek an alternative verdict does not preclude an appellant from taking the point that the alternative should have been put and that a miscarriage of justice occurred.^[44]  Still, a forensic decision to leave the jury with “a stark choice between conviction on the more serious offence and complete acquittal will weigh heavily against any submission that the accused was deprived of a chance of acquittal of the more serious offence because the opportunity of a conviction on the lesser offence was not left to the jury.”^[45]

Application of these principles

51. The alternative offences which the appellant submits the trial judge erred in failing to put to the jury were not opened by the Crown to the jury. Evidence which might have raised them as a real possibility was not led or elicited. The complainant’s evidence was that he had been penetrated, and there was no other evidence on the issue of penetration. Neither the prosecution nor the defence explored the possibility that the appellant had attempted to penetrate the complainant, but failed to do so. There was no cogent evidence of one, let alone three, failed attempts. An alternative scenario of three failed attempts was not a viable outcome on the evidence. The real issue at trial was whether the appellant had penetrated the complainant on each occasion.

52. This is not to say that the jury was required to accept, in its entirety, either the prosecution or defence cases. Such a view of the jury’s function is inconsistent with Stevens v The Queen.^[46]  Instead, it is to state that there must be evidence which fairly raises the alternative offence.  The alternative offence must fairly arise on the whole of the evidence before the trial judge has a duty to put it.  It will not fairly arise if it would be unsafe to convict the accused on that alternative basis.  The manner in which a trial is conducted may leave no evidentiary basis upon which a middle course in the form of conviction for an alternative offence could be safely based.

53. This is such a case. The absence of evidence of a failed attempt on any of the three occasions, coupled with the complainant’s unequivocal evidence of penetration, meant that, if alternative verdicts had been put on each count and the appellant had been convicted of the lesser offence, he could have successfully argued that the convictions were not safely based.

54. The defence’s conduct in not exploring the possibility of alternative offences of attempted rape or indecent treatment arising from a failed attempt to penetrate the complainant on one or more occasion is explicable on the basis that the trial was conducted as an “all or nothing” case, where the offering of convictions on a lesser charge might jeopardise the accused’s chance of acquittal.^[47]  Given the trial was conducted as an “all or nothing” case, there was no evidentiary foundation upon which the alternative verdicts could be safely based.  Neither attempted rape nor indecent treatment were fairly raised on the whole of the evidence.

55. The appellant’s counsel on the appeal submitted during argument that when an alternative verdict is open on the evidence, it is the duty of a trial judge to leave it to the jury, irrespective of defence counsel’s strategic or tactical decisions. That submission should not be accepted. R v GS rejected the proposition that an alternative verdict must always be left to the jury whenever there is some evidence to support it, regardless of the interests of justice.^[48]

56. Here, as in R v Nous, a forensic decision was made not to expose the accused to the risk of being found guilty of an alternative, lesser offence.  The accused made a tactical choice that an alternative offence not be put to the jury.  If the absence of blood and the absence of an early complaint of anal penetration persuaded the jury that the complainant was either untruthful or unreliable, then the appellant stood to be acquitted.

57. A tactical request, in the exercise of the accused’s right to a fair trial, that an alternative offence not be left is relevant in determining whether the interests of justice require the alternative to be put.

58. The way the trial was conducted and the evidence before the jury did not fairly raise the alternative offences. A tactical decision was made, for arguably sound forensic reasons, to leave the jury with the stark choice between conviction on rape and complete acquittal. It was open in the circumstances for the trial judge to conclude that the interests of justice, including justice to the accused, did not require alternative offences to be put to the jury.

59. The appellant has not established that the trial judge erred in failing to put alternative verdicts to the jury. There was no miscarriage of justice in not putting alternative verdicts, and the tactical request from defence counsel that the alternative offence raised by the trial judge not be put is a significant factor in reaching that conclusion.

The summing up

60. After the conclusion of evidence, trial counsel for the appellant asked the trial judge to consider giving a “Longman Direction coupled with a Robinson-type direction, because there’s no [corroboration]^[49] in this case, as I understand it.”

61. In the course of her summing up the trial judge reminded the jury that the case “rises and falls on your assessment of [the complainant].” Reference was made about the need to assess both the truthfulness and reliability of his evidence. The jury was told the crucial fact the prosecution had to prove beyond reasonable doubt was that the appellant penetrated to some degree the anus of the complainant with his penis and that if, for example, the jury found that there was oral sex but not anal sex, then the accused would be not guilty because the rape charge was dependent on anal sex. The jury was told it had to accept the complainant’s evidence on the element of anal penetration in order for the Crown to prove the offence beyond a reasonable doubt.  The trial judge addressed the issue of consistency or inconsistency in the accounts the complainant had given to various people and its possible impact on his reliability.

62. After remarking that “no-one’s memory is perfect” the trial judge gave the following directions which the respondent submits were adequate to comply with the directions discussed in Longman and Robinson:

“Of course, that’s heightened in this case because in this case the complaint is quite old. The complainant is talking about things that are said to have happened about 10 years ago, possibly 11 years ago, and that long delay in reporting the incident, obviously, has an important consequence and that is that the evidence that [the complainant] is giving now it is very difficult to adequately test after the passage of so many years.

By the fact of this delay, ladies and gentlemen, the accused has been denied the chance to assemble, soon after the incident is alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complaint instead been made known to the accused soon after the alleged event, it may have been possible then to explore the pertinent circumstances in some detail and perhaps to gather and to look to call at a trial evidence throwing doubt on the complainant’s story or confirming the accused’s denial.

It’s pretty obvious in this case that there has been some difficulties caused by that delay. You will remember the witnesses such as [LJ] and [M] and even [DJ] and [SJ] and, of course, the complainant having difficulties remembering exact dates of when things happened and when people were at various houses and even where the pictures were taken and that’s an illustration of the difficulties with complaints that are made a long time after the events are said to have occurred.

Of course, you’d bear in mind that the complainant, in trying to recall what he says happened, is looking back into the memories of a four, five and six year old and obviously you draw on your own experience to think about how well you can remember things that occurred when you’re a small child and the perceptions that a small child might have of things may be very different to what an adult has.

Obviously, the ability to test what somebody says by the ability to adduce medical evidence is lost by the fact of the delay and it's obvious also from the fact that the matter’s so old that you would never be able to get forensic evidence of proof or disproof of what happened.

So, the fairness of the trial has necessarily been impaired by this long delay. As a result of that, I need to warn you that it would be dangerous to convict on the complainant’s testimony alone unless, after scrutinising it with great care and considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy because there is no other evidence to support him. His evidence, in effect, stands alone.”

63. Later in her summing up the trial judge again identified the critical issue as being whether the jury was satisfied beyond reasonable doubt, in relation to each of the three charges, that the complainant was giving accurate and reliable evidence when he said that the accused penetrated his anus on those three occasions. The trial judge summarised in some detail the respective contentions of the prosecution and the defence about the accuracy and reliability of the complainant’s evidence. In the case of the defence, the summarised points included:

1. the need to be satisfied that the respondent was honest and reliable and that if the jury had a reasonable doubt about that they would acquit;

2. to acquit the jury did not need to come up with a reason why the complainant would make up a story, and did not even have to be satisfied that the complainant was not being truthful;

3. the allegations were of a penile rape of a four or five year old;

4. the jury would think there would be some sort of sign of pain or blood on the complainant’s underpants or complaints of pain by a child that young if he had been penetrated by an adult male;

5. there was a concerning lack of detail about events, including where the complainant’s brothers were when the events occurred and why the complainant’s mother did not observe matters including some change in her son;

6. the possibility that he told his older brother that he was “only a baby” when it happened, and that KG thought the complainant had said he was 10 at the time, whereas he told others that he was five or six;

7. the fact the complainant did not complain for so long was significant;

8. the fact the complainant had continued contact with the appellant over the years, and did not complain about having to see the appellant;

1. a photograph showing a child who was enjoying contact with the appellant was inconsistent with his having been raped by him;

10. the fact that the events were said to have occurred just across the way from where the family was, but nothing astray was heard or seen;

11. that there were online communications between the complainant and KG as teenagers and that people who share secrets, particularly teenagers, do not always tell the truth online; and

12. that the jury would have a significant doubt about the complainant’s evidence such that it could not rely on the complainant as being reliable or truthful.

64. No redirections were sought by the appellant’s trial counsel concerning the adequacy of those directions or the summary of the defence’s contentions.

Ground 2:  Longman and Robinson directions

65. Longman directions and Robinson directions are shorthand descriptions of directions that are required in particular cases in the interests of justice to warn the jury of the dangers of acting on the evidence of a complainant.  As Hayne J stated in Tully v The Queen:

“What Robinson, and Longman, hold is that there are cases where there is a perceptible risk of miscarriage of justice if the jury is not warned of the need to scrutinise the evidence of a complainant with care before arriving at a conclusion of guilt.”^[50]

In Tully, other justices treated Longman and Robinson as linked.^[51]

66. The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint and in bringing the complaint to the attention of the accused “creates a forensic disadvantage to an accused in respect of adequately testing allegations^[52] or adequately marshalling a defence,^[53] compared with the position if the complaint were of ‘reasonable contemporaneity’.”^[54][55]

67. In R v Tichowitsch, this Court identified both “the occasion for, and the content of, the Longman warning”^[56] as those described in the joint judgment of Brennan, Dawson and Toohey JJ in Longman which stated:

“But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer ([1987] AC, at p 141). 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 (see Jago v District Court (NSW) (Ante, pp 31-32, 42-44, 56-57, 71-72)) 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, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.  To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.  The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence.  That was not sufficient.”^[57]

68. Neither Longman nor Robinson is authority for the proposition that it is imperative to give a warning that it is dangerous to convict because the prosecution case depends on the testimony of a child complainant whose evidence is uncorroborated.  Nor is the subsequent decision of the High Court in Tully.^[58]

69. The justices in the majority in Tully, in considering Robinson, emphasised that the need for a judicial warning that it would be dangerous or unsafe to convict had to be found in the perception of a risk of a miscarriage of justice where the risk arose for reasons apparent to the judge, but not the jury, beyond the mere fact that the prosecution case depended on the uncorroborated evidence of a child complainant.^[59]  As Crennan J stated in Tully:

“The question is whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice.  There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences.”^[60]

70. Longman was a case of a 20 or 25 year delay, but a Longman direction has been required in cases that involve a shorter period.  It has been said the criterion for the provision of a warning as stated in Longman is not mathematically precise.^[61]  In this case there was no contest at trial that a Longman direction was appropriate.

The appellant’s Longman direction submissions

71. The appellant’s written submission on this second ground of appeal relating to the adequacy of the direction as formulated in Longman were that the addition of certain comments within the direction I have quoted at paragraph [62] “deprived the warning of real force by shifting the focus from the disadvantage confronting an accused to the disadvantages confronting the complainant.”  The appellant submitted that, in combination with the failure to caution the jury, having regard to the particular circumstances of the case (being matters addressed in ground three), the inadequacy of the warning about the consequences of delay deprived the appellant of a fair chance of acquittal.

72. In her oral submissions, counsel for the appellant raised additional matters about the adequacy of the Longman direction.  The first was that the introduction of the warning about the consequences of delay, which followed directions about preliminary complaints and inconsistencies in evidence, was prefaced with the observation “no-one’s memory is perfect” and was improperly linked with the direction on preliminary complaint.  The second, and more substantial, additional matter was that the warning on delay did not specifically refer to the risk of distorted or erroneous memory, as identified in the judgments of Deane J and McHugh J in Longman.  The essential submission was that the complainant’s young age at the time of the alleged offences coupled with the long passage of time created a real risk that honest but erroneous memory gave the complainant’s evidence false plausibility.  Awareness of the risk of erroneous or false recollection, as identified by Deane J and McHugh J in Longman, was submitted to be something that a jury may not be alert to which arose in the circumstances of this case.

73. The appellant’s submissions on the second ground of appeal raise two substantial issues:

1. Was the Longman direction deprived of real force?

2. Was the Longman direction inadequate in not specifically referring to the risk of honest but erroneous memory on the part of the complainant, and, in particular, that “the effects of the long passage of time on child fantasy or semi-fantasy may have created a problem that honest but erroneous memory has given the complainant’s evidence a false plausibility.”^[62]

Was the Longman direction deprived of real force?

74. The fact the Longman direction was preceded with directions about preliminary complaints and the treatment of inconsistency in evidence, and was prefaced with the observation “no-one’s memory is perfect” did not deprive it of force.  In fact, the reference to the imperfections of memory was relevant to the direction that followed.

75. The comments about the evidence of witnesses served to illustrate the difficulty with memory as a result of delay. They did not deprive the explanations that preceded and followed about the effect of delay on the accused’s defence, or the concluding warning, of real force.

Was the Longman direction inadequate in not specifically referring to honest but erroneous memory on the part of the complainant and, in particular, child fantasy?

76. In Longman, the appellant was accused of placing or pressing his hand on or against the complainant’s genitals on two occasions.  The first was in 1962-1963 when the complainant was six and the second was in 1966-1967 when the complainant was ten, and on each alleged occasion the complainant was asleep immediately before the alleged offence.  A complaint was made to the police in 1987 and the appellant was convicted in 1988.  Deane J observed:

“It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance.  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.  So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy.  It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant’s evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinised with very great care indeed.”^[63]

McHugh J also had regard to the circumstances that both offences were alleged to have commenced when the complainant was asleep, on each occasion she pretended to remain asleep, the complainant was a child of about six or ten when the offences occurred, the complainant did not allege penetration occurred or was attempted and both offences were alleged to have occurred more than 20 years before the hearing.  In the light of those circumstances, McHugh J stated:

“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented.  The longer the period between an ‘event’ and its recall, the greater the margin for error.  Interference with a person’s ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling.  Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine:  Hunter, Memory, rev. ed. (1964), pp. 269-70.

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely.  The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred.  The opportunity for error in recalling, 20 years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious.  Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be.”^[64]

77. The occasion for and the content of a Longman direction or a Robinson direction depend on the specific facts of a case and the real issues in it.^[65]  As this Court has observed, the content of a Longman direction starts with the joint judgment in that case.  The joint judgment did not specifically refer to the fallibility of recollection in general or the possibility of child fantasy as circumstances that justified a direction.  Its essence is that delay, especially if lengthy, may create a forensic disadvantage to an accused in adequately testing allegations or adequately marshalling a defence.  It is the forensic disadvantage to which the warning is directed.^[66]

78. To like effect is the judgment of the New South Wales Court of Criminal Appeal in BWT in which Sully J (with whom Wood CJ at CL and Dowd J agreed) undertook an extensive review of the various statements of principle in Longman and in the subsequent decisions of the High Court in Crampton and in Doggett.^[67]  Sully J stated that which is to be warned against is to be found in the joint judgment in Longman itself “… that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], 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, was satisfied of its truth and accuracy.”^[68]  Later, his Honour stated that in framing the substance of a Longman direction, a judge must keep in mind not only the guidance given by the joint judgment in Longman itself, but also the additional considerations in the respective judgments of Deane J and McHugh J.^[69]

79. Authorities since Longman have identified one of the forensic disadvantages which may be suffered by an accused by reason of the lapse of time is the risk of honest but erroneous memory, which has the misleading appearance of plausibility due to the disadvantages faced by an accused in testing it and meeting it.^[70]

80. In Crampton v The Queen, the joint judgment of Gaudron, Gummow and Callinan JJ noted the differences between the joint judgment in Longman and the judgments of other members of the Court.  The former was said to “confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant’s evidence alone.”^[71]  It was said the reasons of Deane J and McHugh J might be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant’s evidence “may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist.”^[72]  Gaudron, Gummow and Callinan JJ did not think it necessary to explore the significance of any differences between the respective reasons for the unanimous decision in Longman.  It was unnecessary to do so because the direction in that case fell short of what was required by the joint judgment in Longman.  Gleeson CJ^[73] and McHugh J^[74] agreed.

81. Kirby J also considered the directions were defective by the standards of Longman.^[75]  This was because, in practical terms, after 20 years, the appellant’s defence could never rise much above a mere denial and protest of innocence.  The appellant was thus “at a great disadvantage in testing events that may have affected the first complainant’s recollection or reliability.”^[76]

82. Hayne J identified the critical feature of the circumstances as being that the lapse of time put the accused at a significant disadvantage of a kind and to an extent which a jury might not appreciate without proper direction.  His Honour described the instructions that should have been given to the jury by reference to the joint judgment in Longman.^[77]

83. In Doggett v The Queen, Gaudron and Callinan JJ remarked that whilst it may be accepted that in adulthood people may have vivid and clear recollections of events which occurred when they were children, “accounts of events remote in time need to be carefully scrutinised.”^[78]  More specifically, in relation to the obligation to give a Longman direction their Honours stated:

“… the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused.  Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.”^[79]

84. McHugh J, with whom Gleeson CJ agreed, dissented as to the outcome of the appeal, and about the need for a Longman direction in a case in which there was corroborating evidence.  As to Longman, his Honour stated:

“What was critical in Longman was that the jury were being asked to convict on uncorroborated evidence of events occurring twenty to twenty-five years before while the complainant, then a young child, was asleep or waking. It was a reasonable possibility that, although the complainant was an honest witness, her testimony was mistaken or unreliable by reason of her age at the time of the offences, the long delay in complaining and the fact that she was asleep on the occasions when both offences were alleged to have commenced. The Court took the view that the jury may not have appreciated the danger of relying on the evidence of an apparently honest witness concerning events that had allegedly occurred under such circumstances.”^[80]

85. Kirby J considered the holding in Longman in some detail,^[81] noting that there are certain differences in the reasoning in Longman as to precisely why the warning was necessary.  A common element that was said to inform both the joint reasons of Brennan, Dawson and Toohey JJ and the separate reasons of Deane J and McHugh J was “a recognition of the serious forensic disadvantages suffered by an accused person in a criminal trial in meeting, for the first time, accusations made long after the subject offences were alleged to have occurred.”^[82]  The separate reasons of Deane J and McHugh J were said to have added a second and related danger, namely the risk that, after such an interval of time, the memory even of an honest witness might become contaminated.  Kirby J stated the following in respect of obligatory warnings in cases involving long delay:

“However, the longer the delay, the clearer is the obligation to give the warning to the jury along the lines at least of that stated in the joint reasons in Longman.  In an appropriate case, it would also be as well for the warning to contain reference to the additional consideration mentioned by Deane J and McHugh J in their separate reasons.”^[83]

86. In neither Crampton nor Doggett was there any specific endorsement of the proposition that child complainants in general are prone to fantasy or prone to fantasy about sexual matters.

87. In M, this Court referred to the effect of s 632 of the Criminal Code 1899 (Qld) that a judge should not tell the jury that the law regards child complainants as unreliable witnesses simply because they are children.  However, that section does not prevent a judge from making comments about the unreliability of the evidence of a witness arising out of the circumstances of the case.^[84]  Davies JA (with whom McMurdo P and Helman J agreed) continued:

“Moreover, although the age of a witness, including a complainant, may be relevant to the reliability of that person’s evidence, there is no reason to believe that, generally, the evidence of a child of 11 is likely, without more, to be less reliable than that of an adult.”^[85]

Davies JA noted that the trial judge in that case remarked that young children may be prone to imagination and suggestion, and it was for the jury to consider to what extent, if at all, those general considerations applied to the complainant’s evidence.  Those remarks were said to be, in light of current research, possibly too favourable to the appellant.^[86]

88. The circumstances of the particular case may make it appropriate, in conformity with Longman and Robinson, to refer to the age of the complainant at the time of the alleged offence.^[87]  In Doggett, Gaudron and Callinan JJ referred to the complainant’s age at the time of the offences.  As Wheeler JA explained in FGC v Western Australia, the age of the complainant at the time of the offending is relevant, not because of any unreliability peculiar to children, but because of the difficulty of recalling, on occasion, the detail of events occurring a considerable time before.^[88]  The risk of honest but erroneous memory in such a case arises because the witness is attempting to recall events which occurred in childhood, being events remote in time.

89. The appellant did not submit any decision of the High Court required a Longman direction to specifically refer to the matters discussed by Deane J and McHugh J.  Instead, reliance was placed upon certain passages in the reasons of Keane JA in R v TN.^[89]

90. In R v TN, one of the issues was the adequacy of the trial judge’s directions to the jury, including that the trial judge failed to direct the jury that they needed to scrutinise the complainant’s evidence with great care before they could convict the appellant.  The charges against the appellant related to sexual abuse of the complainant between January 1999 and June 2000 when she was aged between nine and ten years old.  The complainant did not complain about the appellant’s conduct until April 2002 when she told her mother about it.  The appellant placed reliance upon Robinson, and the features that were said to give rise to the need for a warning in accordance with Robinson included:

1. delay on the part of the complainant in complaining to her mother of the appellant’s misconduct towards her; and

2. delay in bringing the complaint to the attention of the appellant.

After referring to relevant statutory provisions and authorities which had interpreted them, Keane JA stated that the legislature has made it clear that, in a trial by jury, it is for the jury to determine, unaffected by “expert” direction from the judge, what should be made of delay in making a complaint in terms of the reliability of a complainant.  His Honour (with whom Williams JA and Helman J agreed) continued:

“Apart from the issue of the complainant’s reliability by reason of delay in making a complaint, the justification for judicial intervention in the fact-finding process of present relevance was identified in Longman v The Queen and Doggett v The Queen as a judicial concern that the lay mind may not be alert to the forensic disadvantages which may be suffered by an accused by reason of the lapse of time.  These disadvantages may involve problems, both in marshalling evidence in his or her defence, and in attacking a prosecution case made more plausible because the lapse of time gives rise to the risk of honest but erroneous memory on the part of a complainant.  This latter problem may be especially acute in the case of a complainant who was a young child at the time of offences alleged to have occurred many years before trial.”^[90]

91. In that case, there was no evidence that the appellant’s ability to marshal evidence was adversely affected by the delay. It was unnecessary to address the possible application of the concerns identified by Deane J and McHugh J in Longman, and noted by Kirby J in Doggett.^[91]  Also, the facts of the case did not give rise to “a realistic concern that the effects of the long passage of time on child fantasy or semi-fantasy may have created a problem that honest but erroneous memory has given the complainant's evidence a false plausibility.”^[92]

92. On appeal to the High Court, Kirby J (who dissented as to the outcome of the appeal) agreed with the Court of Appeal’s disposition of the issue about whether a Longman warning was necessary.  Longman was said to concern a particular problem of very long delays between the time of the alleged offences and trial.  This was not such a case.

93. Hayne J, who also dissented, observed that lengthy delay in making a complaint is often an important reason for concluding that a warning should be given.  It was unnecessary to canvass the differences in the judgments in Longman.

94. Callinan J quoted relevant passages of the Court of Appeal’s decision in TN and made no criticism of what had been said to the effect that Longman is concerned with the forensic disadvantages which may be suffered by an accused person by reason of a lapse of time, which may involve problems, both in marshalling evidence and in attacking a prosecution case.^[93]

95. Crennan J, with whom Heydon J agreed, noted the issue on appeal was whether, as the appellant submitted, the “concatenation of factors” being the age of the complainant, the sexual nature of the offences, the delay between the commission of the offences and the preliminary complaint to the complainant’s mother and inconsistencies in the complainant’s evidence required a warning to be given in accordance with Longman.^[94]  Crennan J considered Longman, Robinson, Crampton and Doggett before concluding that there was “no specific or particular forensic disadvantage to the appellant, as a result of delay, was identified to the trial judge.”^[95]  Her Honour considered the issue of delay and stated:

“As the reasons of the majority in Longman make clear, it is not imperative to give a warning because the circumstances include allegations of sexual misconduct or because the complainant is young at the time of the events alleged (or at trial) or because there is some delay in complaint to, for example, a mother.”^[96]

96. The critical issue in Longman was identified by Crennan J as forensic disadvantage:

“The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it twenty years, or two or three years, creates a forensic disadvantage to an accused in respect of adequately testing allegations^[97] or adequately marshalling a defence,^[98] compared with the position if the complaint were of ‘reasonable contemporaneity’.”^[99]

Her Honour stated:

“No forensic disadvantage of a kind which a jury may not appreciate arises automatically because of delay,^[100] or because the evidence is uncorroborated evidence of sexual misconduct,^[101] or because of the complainant’s youth.^[102]”^[103]

97. In summary, the High Court in Tully was not concerned with a case in which the facts gave rise to the kind of forensic disadvantage identified by the majority in Longman, namely forensic disadvantage arising out of a long, and possibly unexplained, delay.  Nevertheless, the judges who considered the need for a “Longman direction”, like the Court of Appeal in the same case, identified the issue as whether any delay created a forensic disadvantage to the accused in respect of:

1. adequately testing allegations; or

2. adequately marshalling a defence,

compared with the position if the complaint were of reasonable contemporaneity.  The forensic disadvantage was identified by reference to the joint judgment in Longman, not by reference to the separate judgments of Deane J and McHugh J in that case.

98. Intermediate courts of appeal have remarked that “if delay causes either forensic prejudice to the accused in the particular circumstances, or risks of the type described by Deane J and McHugh J in Longman, a warning must be given.”^[104]  However, care is required in identifying the risks described by Deane J and McHugh J in Longman.  It is not helpful to refer to “the extended Longman direction” as if the judgments of Deane J and McHugh J were a joint judgment.  Their separate judgments relate to a variety of matters and include what has been described in later authorities as “the fragility of youthful recollection” and “the possibility of distortion.”^[105]  The “risks of the type described by Deane and McHugh JJ in Longman”^[106] might be understood as a reference to the risks that arose as a result of the nature of the offences in that case, the age of the complainant, the delay that occurred and the fact that the offences were alleged to have commenced when the complainant was “in the twilight state between being fully asleep and fully awake.”^[107]

99. I respectfully agree with Spigelman CJ that the observations of Deane J and McHugh J in Longman “must not be confused with the Longman warning which has authoritative force”, and that their observations have not been given authoritative force by either the High Court or any intermediate court of appeal.^[108]  Spigelman CJ remarked that the observations of Deane J and McHugh J were based on assumptions about child psychology which are not necessarily well founded, and that there is a substantial body of psychological research that children, even very young children, give reliable evidence.  Spigelman CJ observed that the complexity of issues, including the ability of young children to distinguish fantasy from reality and a child’s ability to accurately recall stressful events, is not reflected in the observations of Deane J and McHugh J in Longman.  These observations should be treated with caution.  The reservations of Spigelman CJ about the so-called “extended Longman direction” about matters such as childhood fantasy reflect the reservation expressed by this Court in M about remarking to a jury that young children may be prone to imagination.  The conclusions of Spigelman CJ in JJB were adopted by the Court of Appeal of the Supreme Court of Western Australia in FGC v Western Australia.^[109]

100. The problem of reconstruction leading to a false recollection is not limited to children. As was said by McLelland CJ in Equity in a different context, namely memory of what was said in a conversation, the fallibility of memory increases with the passage of time, and the processes of memory are overlaid:

“All too often what is actually remembered is little more than an impression from which plausible details are then, often subconsciously, constructed.  All this is a matter of ordinary human experience.”^[110]

The process of reconstructing events into plausible, honestly-held, but possibly erroneous, memories does not begin years after the event.  It starts much sooner.  Still, long delay may increase the risk of erroneous memory.  This is why “accounts of events remote in time need to be carefully scrutinised.”^[111]

101. The process of a witness reconstructing an honestly-held, but erroneous, recollection is familiar to trial lawyers and judges due to their experience in forensic contests. It is not, however, unfamiliar to other citizens, as McHugh J acknowledged in Longman with his reference to autobiography.  The distinction between the credibility and the reliability of a witness is made routinely to juries.  But the fact that an individual may be honest but mistaken in a recollection is a matter of common experience.

102. A jury does not necessarily have to be told that honest individuals may have unreliable recollections. A jury may need to be told, in accordance with the majority in Longman, that delay may place an accused at a disadvantage in testing, and thereby exposing, such an erroneous recollection.  The essence of the Longman warning is that the accused cannot effectively challenge what may be an honestly-held recollection because of the forensic disadvantage in adequately testing allegations or adequately marshalling a defence.

103. Usually, it will be appropriate, depending upon the circumstances of the case, to elaborate on those difficulties by reference to the particular disadvantages faced by the accused in testing and meeting the evidence.^[112]  In framing a Longman direction guidance may be obtained from the joint judgment in Longman and also the additional considerations to which McHugh J referred in that case.  Thus in R v Aristidis, a trial judge’s direction was deficient because it did not adequately emphasise both the difficulties created for the defence by the delay and “the enhanced risk of the complainant’s claimed recollections being unreliable.”^[113]  This Court referred to the observation of McHugh J in Longman that the likelihood of error increases with delay.

104. The joint judgment of Gaudron, Gummow and Callinan JJ in Crampton held that the circumstances of that case made it appropriate for the judge to draw attention to the considerations mentioned by Deane J and McHugh J in Longman which included the fragility of youthful recollection and the possibility of distortion.^[114]  That is not to say that it is appropriate or necessary in every case of a child complainant to direct a jury that the recollection of events which occurred in childhood is “particularly susceptible to error”.^[115]

Summary – Longman direction

105. In summary:

1. The “Longman direction” is a potentially misleading label as to whether it describes:

(a)the warning required in some cases about the forensic disadvantage faced by an accused person where a significant period of time elapses between the date of the alleged offence and the accused first becoming aware of the complaint; or

(b)the warning required, in accordance with Longman, Robinson and other cases, whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

2. As to the former, the “Longman direction” is not a statute,^[116] and no particular form of words is required.  But authority requires it to be in the form of a warning.^[117]  The warning must be given the imprint of the Court’s own authority.

3. The warning relates to the matters stated in the joint judgment in Longman, namely that after the passage of many years, the evidence of the complainant cannot be adequately tested or met.

4. The identified danger, which is based on the accumulated experience of courts, should be explained to the jury.  In essence, it is that an accused can only forensically test whether the complainant’s account is untruthful or unreliable after he or she is informed of the allegation.  Because of the lapse of time the accused cannot adequately test the complainant’s evidence, including not being able to explore in cross-examination matters of detail.  The inability to adequately test or meet the complainant’s evidence may make it more plausible.  The difficulties encountered in adequately testing or meeting the evidence may require some elaboration.

5. The jury is to be warned that it would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, it is satisfied beyond reasonable doubt of its truth and accuracy.

6. The essential requirements of such a Longman direction about the forensic disadvantage faced by an accused person where there has been a significant lapse of time are reflected in the Benchbook.  As the Benchbook notes, the opportunities lost by the delay may require some elaboration, depending upon the circumstances.  The specific difficulties encountered by the defence should be highlighted.

7. The forensic disadvantage stated in the joint judgment in Longman is related to the problem of honest but erroneous memory discussed in the separate reasons of Deane J and McHugh J.  The passage of time and the consequential disadvantages faced by the accused in testing and meeting the complainant’s evidence may give a complainant’s honest but erroneous recollection an appearance of plausibility.

8. A jury does not necessarily have to be told that individuals can have honest, but erroneous recollections: this is a matter of common experience.  Instead, in explaining the forensic disadvantages faced by the accused, it will be appropriate to explain the difficulties encountered in testing or meeting an honestly-held but erroneous recollection.

9. The content of the warning depends on the circumstances of the case.  The joint judgment in Longman provides guidance about the consequences of long delay, as does the separate judgment of McHugh J about the fallibility of recollection, and that the longer the delay between an event and its recollection, the greater the margin for error.

10. If a “Longman direction” is understood in the broader sense referred to in 1(b) above, then circumstances in addition to long delay may need to be stated and form part of the warning.  The particular circumstances described by Deane J and McHugh J (but not any assumption about child fantasy or the general unreliability of the evidence of complainants of childhood sexual abuse) including the nature of the particular offence, the long delay, the complainant’s age at the time of the offences and that she was asleep when the offences were alleged to have commenced, taken together, warranted a warning about the danger of relying on the evidence of an apparently honest witness about events that had allegedly occurred in such circumstances.

The adequacy of the Longman direction in this case

106. In this matter the appellant’s criticism of the Longman direction does not relate simply to the adequacy of the direction given to the jury about the consequences of delay.  In her oral submissions counsel for the appellant submitted that the combination of delay and the age of the complainant gave rise to a requirement to refer to the problem of erroneous memory, and child fantasy, on the part of a child complainant.

107. The need to warn about the forensic disadvantage encountered by reason of delay in testing an honest but erroneous recollection is not based upon judicial experience that recollection of events occurring in childhood is often erroneous because of the inherent unreliability of witnesses who give evidence about events occurring in childhood. It is based upon the long period of time which may elapse between an event that occurred during childhood and its recollection. It would be unhelpful to make categorical statements to a jury, based upon the observation of McHugh J in Longman that recollection of events which occurred in childhood “is particularly susceptible to error and is also subject to the possibility that it may not even be genuine”.  It also may be unhelpful to refer to the “fragility of youthful experience”^[118] lest it be taken to convey a warning that the evidence of witnesses about events which occurred in childhood is inherently unreliable.

108. It may be appropriate in the circumstances of a case to remark about the fallibility of recollection, particularly of events which occurred in childhood due to their remoteness in time. It also may be appropriate for a judge to observe, as the trial judge did in this case, that the perceptions a small child might have of an event may be very different to the perceptions an adult would have of the same event.

109. Particular circumstances, such as evidence of sexual fantasies, demonstration that the complainant has made false complaints against the accused^[119] and the possibility of distorted perceptions when the child complainant is half asleep, may give rise to a risk of the kind which Longman and Robinson identify as requiring a warning to the jury of the need to scrutinise the evidence of a complainant with care before arriving at a conclusion of guilt, or that it would be dangerous to convict in such circumstances.

110. Just as the shorthand description “Longman direction” has the capacity to mislead, so does reference to the “extended Longman warning” as a convenient, but possibly misleading description of what might be taken from the judgments of Deane J and McHugh J in Longman.^[120]  To the extent that McHugh J in Longman referred to the fallibility of recollection and, the longer the period between an event and its recall, the greater the margin for error, these matters provide guidance about the content of a Longman direction and may not require elaboration to a jury.

111. The essential point of reference in framing a Longman direction is the joint judgment in Longman, which concerns the forensic disadvantage in adequately testing allegations because of the lapse of time or in adequately marshalling evidence to meet such allegations.  This concern also was expressed in the separate judgment of McHugh J who referred to “the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence”, and that the defence was unable to examine the surrounding circumstances to ascertain “whether they contradicted or were inconsistent with the complainant’s testimony”.^[121]

112. For the reasons I have given, there was no requirement, based upon the judgments of Deane J or McHugh J in Longman or in what was said by this Court in R v TN,^[122] to refer to childhood fantasy or the possibility of child fantasy about sexual matters.  As was explained in R v TN, the making of a comment adverse to the complainant’s reliability by reason of the fact that he was a child is proscribed by s 632(3) of the Criminal Code 1899 (Qld).^[123]  In any event, for the reasons explained by Wheeler JA in FGC v Western Australia, a warning would need to have a basis in binding authority, experience or scientific works of authority.^[124]  It is the substantial length of time and the fallibility of recollection that gives rise to the risk of honest but erroneous memory, not the fact that the witness is a child or was a child at the time of the alleged offence.

113. The direction given by the trial judge about the consequences of delay in the case of a child complainant accorded with Longman and other binding authority.  It explained the forensic disadvantage faced by the appellant in testing and meeting the complaint’s evidence.  The absence of a specific reference to honest but erroneous memory did not make it inadequate.  Like the joint judgment in Longman upon which the direction was based, the direction was premised on the forensic disadvantage faced in testing and meeting an erroneous memory.  It warned that it would be dangerous to convict unless satisfied beyond a reasonable doubt that the complainant’s evidence was both truthful and accurate.

114. The second ground of appeal is not established.

Ground 3: Other circumstances relied upon as requiring a judicial warning

115. In support of his third ground of appeal the appellant submitted that a number of circumstances gave rise to a risk of miscarriage of justice “palpable or obvious to a judge, which may not have been apparent to the jury”,^[125] necessitating a warning which made clear the caution to be exercised in light of those circumstances.  The matters which related to the complainant’s reliability were submitted to be:

“a.the age of the complainant;

b.the lack of injury, as reported by the complainant, and the absence of any pain experienced in the period after the rapes;

c.the harmonious relationship between the appellant and the complainant after the alleged commission of the offences, objectively observed by others, including the complainant willingly going with the appellant fishing and frequenting his internet café;

d.the inconsistency in preliminary complaint and in particular that the complainant told his brother he thought he was raped when he was a baby and told [KG] he was raped when he was 10 years of age;

e.there was no suggestion of any earlier or later misconduct by the appellant towards the complainant;

f.some features of the history of the complaint may have indicated a degree of suggestibility on the part of the complainant, particularly the first complaint to [KG] in which he sympathised with her abuse by alleging his own.”

116. The test in determining whether these matters, individually or together, necessitated a warning is whether they created a risk of a miscarriage of justice perceptible to the judge, but not the jury.^[126]

117. As to (a) namely the complainant’s age, this circumstance has been addressed above. The age of the complainant at the time of the offence was one of those circumstances addressed in giving the Longman/Robinson direction.  It was relevant to the accuracy of the complainant’s perception and understanding of events at the time they occurred, and to the possibility of an erroneous recollection due to the passage of time since those events and the forensic disadvantage to the appellant in testing and meeting that recollection.  No forensic disadvantage of a kind which a jury may not appreciate arises automatically because of a complainant’s youth.^[127]

118. As to (b), the lack of any injury noticed by the complainant, such as bleeding, and the fact that he could not remember whether the physical hurt that he felt while the episodes were happening lasted long afterwards, were matters for the jury to assess and were not circumstances giving rise to a risk of miscarriage of justice perceptible to the judge, but not the jury.

119. As to (c), there was an apparently harmonious relationship between the appellant and the complainant after the alleged commission of the offences. The appellant met his future wife in December 2000 and they married in April 2001. The complainant visited them at their new home, and also had a lot of contact with their child. The complainant asked the appellant whether he could work at the appellant’s café. He went fishing with the appellant. He continued to see the appellant on family occasions.

120. In his interview with police, the complainant explained that as recently as a few days earlier he had talked to the appellant and that the complainant would “act like I’m his friend”, but when he saw the appellant driving past he felt angry, shameful and upset. In his evidence in the proceedings, the complainant recounted that when he was growing up the appellant would call him names, would tease him for being fat and would say when no other people were around that the complainant was “gay”. Under cross-examination, the complainant explained that he acted like he and the appellant were friends, despite feeling very angered and frustrated with him, but just pretended and “made out that none of it all bothered me”. The complainant explained that he gave the impression that he was friendly with the appellant because he did not want to cause trouble and ruin things and so “everyone could just get along.” Under cross-examination the complainant also explained that he did not tell his parents immediately after the incident because the appellant told him that he would get in trouble, and the complainant believed that if he had done so he would have been in trouble.

121. It was for the jury to decide what to make of the evidence of an apparently harmonious relationship between the appellant and the complainant, and the complainant’s explanation for maintaining that appearance. If the trial judge had ventured any comments based upon judicial experience with long delayed complaints, including the “fear of being disbelieved, especially if complaint might pit the child’s word against that of an adult”, the desire to protect a family from the upset of accusing a family member of sexual abuse, or “the sense of privacy, and to a degree, shame which often accompanies discussion of sexual matters”^[128], then this may not have assisted the appellant.  The apparently harmonious relationship between the appellant and the complainant was a circumstance for the jury to assess and did not give rise to a miscarriage of justice perceptible to the judge, but not the jury.  It was not a factor that gave rise to a danger of which jurors would otherwise be unaware or would not appreciate.

122. As to (d), the preliminary complaint evidence included evidence to a school friend, NK, that he was raped when he was younger and of a later conversation that the complainant had with NK’s mother when the complainant said that it happened when he was young, around six. The complainant told a school counsellor that he was raped three to four times when he was around six years old.

123. The first person to whom the complainant spoke about being raped when he was younger was a classmate KG. When interviewed by police on 2 November 2010, KG recalled being told by the complainant that his uncle raped him “when he was younger. I’ve – I think he was 10 – I think that’s what age he told me – I’m pretty sure but when he was younger a couple of years back”. The first mention of the complainant’s uncle was when the complainant typed it on MSN. KG’s recollection was that the complainant stated that he was raped by his uncle “when he was younger”. In her evidence in chief KG was “positive” or “pretty sure” that the complainant said he was ten.

124. The complainant could not recall telling KG that he was about ten. The MSN communications were not saved.

125. It fell to the jury to decide whether KG was accurate in her recollection about the age of 10 being mentioned. The possibility existed that the figure 10 was mentioned, for example that the events happened 10 years ago. If, however, the complainant had reported that he was 10 years old at the time of the events then this was inconsistent with his evidence that they occurred when he was five or six, and inconsistent with what he told others about his age at the time of the alleged offences.

126. The danger that KG was accurate in her recollection, and that the complainant was an unreliable historian on a critical matter, namely his age at the date of the alleged offences, was perceptible, indeed obvious, to the jury. It did not give rise to a risk of a miscarriage of justice perceptible to the judge, but not the jury.

127. The complainant’s oldest brother, S, was contacted by the complainant in 2010 who told S that he wanted to speak to him about something serious. They arranged to meet and go fishing and S recalled that when they were quiet and alone the complainant said “I think Uncle [R] raped me when I was a baby”. The complainant could not recall saying that, but accepted that he may have used those words.  Under cross-examination when asked what he would class as a baby age-wise, the complainant said that he had never really considered it, but accepted that a baby would be younger than two.

128. It was for the jury to decide whether the complainant used the form of words which S recalled him using. If the jury accepted that, in broaching this difficult topic with his older brother, the complainant described himself as a “baby” when the events occurred then this would not necessarily destroy the complainant’s reliability. The complainant may have used such a word to emphatically convey that he was very young when the events occurred. The jury may have resolved the issue by concluding that the complainant did not use the word “baby” but used some words that conveyed the message that he was a very young child when the events occurred, and that S’s best recollection of the conversation was that the complainant told him that he was a baby at the time. Again, the risk of S’s recollection being correct and the complainant being an unreliable historian as to his age at the date of the offences was a risk that was perceptible to the jury.

129. The jury was given appropriate directions concerning the resolution of issues concerning the reliability of witnesses and inconsistencies.

130. This was not a case in which proven inconsistencies in the versions given by the complainant about relevant events warranted a Longman/Robinson direction.^[129]  The trial judge was not required to take the view that there were such inconsistencies between the complainant and others concerning his age, that he should be regarded as unreliable, and that the circumstances required a warning that these inconsistencies were a circumstance that made it dangerous to convict on the basis of his uncorroborated evidence.

131. As to (e), the fact that there was no suggestion of any earlier or later misconduct by the appellant towards the complainant was a matter for the jury to consider. It did not warrant a warning.

132. As to (f), the complainant confided in KG in his MSN communication with her after they had been close friends for a long time. She told him about problems that she was having with sexual abuse, and in response the complainant said that he understood what KG was going through, but did not want to go into detail because he was scared and he did not want to be upset because his parents did not know. The complainant then told KG that his uncle had raped him when he was younger. This evidence opened the possibility that the complainant falsely alleged that he was raped by his uncle as a way of sympathising with KG. An alternative explanation is that he made the allegations that he did because he felt able to confide in someone who claimed to be the victim of sexual abuse. The risk posed by the possibility that the complainant was open to some form of suggestion, or falsely made up the accusation against his uncle as a means of sympathising with his friend, was a risk that was perceptible to the jury. It was not a risk that was palpable or obvious to a judge, which may not have been apparent to the jury, so as to have necessitated a warning.

133. In my view, none of the circumstances relied upon by the appellant in his third ground of appeal created a perceptible risk of a miscarriage of justice that was palpable or obvious to a judge, but which may not have been apparent to the jury, thereby necessitating a warning. Nor did the circumstances, taken together, necessitate a warning.

Conclusion

134. The appellant has not established that the learned trial judge:

(a)failed to direct the jury about alternative verdicts;

(b)inadequately directed the jury about the consequences of delay as formulated in Longman;

(c)failed to caution the jury about features relevant to the complainant’s reliability which, taken together with the absence of corroboration, required a judicial warning.

135. I would dismiss the appeal.

136. JACKSON J:  For the reasons given by Applegarth J, particularly those identified in the reasons of Fraser JA, I too would dismiss the appeal.