R v WBC[2015] QCA 156

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Douglas J and with his Honour’s reasons for it.
2. MORRISON JA:  I have read the reasons of Douglas J and agree with those reasons and the order his Honour proposes.
3. DOUGLAS J:  The appellant was convicted on 21 November 2014 on two counts of rape.  The charges on the indictment related to two occasions said to have occurred between 4 April 2001 and 6 April 2004 when the appellant made the complainant suck his penis.
4. The appellant was a former partner of the complainant’s mother.  The complainant regarded the appellant as his father.  He was about two years old when his mother met the appellant.  She and the appellant began to live together on 19 October 1998 and separated in 2005.  The complainant was born on 5 April 1995 and was 19 at the time of the trial.  His evidence related to events that occurred when he was aged between six and eight, being either in grade 1, grade 2 or grade 3 of school at the time.
5. The appellant has appealed on the ground that the verdicts are unreasonable.  His counsel also argued that the learned trial judge had failed to direct the jury adequately in accordance with the principles derived from R v Markuleski.^[1]  The third ground of appeal was that the learned trial judge had failed to direct the jury in accordance with the principles derived from Robinson v The Queen,^[2] resulting in a miscarriage of justice.

Summary of the evidence

6. As the first ground of appeal asserts that the jury’s verdict was unreasonable, it is necessary that this court assess independently the quality and sufficiency of the evidence to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.^[3]
7. The appellant had two daughters by another relationship with whom the complainant grew up and whom he treated as his step-sisters.  They were each older than he.  They stayed with the complainant’s family two nights during the week and every second weekend and most of the school holidays.  The appellant and the complainant’s mother also had a son who was seven years younger than the complainant.
8. The complainant also knew the appellant’s father.  He appears to have treated him as a grandfather and called him “Pop”.  The appellant’s father lived in a caravan close to a workshop owned by the appellant where one of the incidents was found by the jury to have occurred.  The second incident was said to have occurred in a car, a Mitsubishi Pajero, owned by the appellant.

The incident in the workshop - Count 1

9. The appellant’s workshop had associated living quarters as well as a caravan adjacent to it where the appellant’s father lived.  Photographs and diagrams were tendered at the trial to assist with the interpretation of the evidence from the witnesses about the workshop.  Similarly, there were photographs and diagrams of the caravan.
10. The complainant gave evidence that, when he was in grade 1, he would visit the workshop with the appellant, “Sometimes more than others; maybe three times a week …”.^[4]  His mother also gave evidence that it was mainly when he was in grade 1 that he would go to the workshop.  The complainant gave evidence that his two step-sisters would be with him on those occasions and that it was usually his “Pop” who took them, but sometimes it was the appellant.  The appellant’s father gave evidence in the defence case about driving the children to the workshop.  The complainant also recalled that, on occasions when the appellant’s father did not drive them, but was otherwise at the workshop, he would come out and greet them.  The appellant’s father himself gave evidence that he would not always do so.  The complainant said that the noise of the car coming down the driveway would usually be able to be heard from the workshop area.
11. The complainant recalled about two or three occasions when he had travelled to the workshop without his step-sisters.  His mother also gave such evidence and recalled a larger number of times than the complainant referred to in his evidence.
12. The complainant’s evidence was that the first event involving sexual offending happened when it was only he and the appellant at the workshop.  He said that he travelled there with the appellant.  He could not recall precisely what time of day it was but said that it was light and he thought it was probably during the afternoon.  He did not believe that anybody else was at the property when he and the appellant arrived.  In that context he said that, if his “Pop” were at home, his practice was to come out to greet them when they arrived.  He was cross-examined about variations in his account of the event.  At one stage he said that he “knew” no-one else was there at the time and, also, at another point, that he did not “think” someone was there.^[5]
13. Counsel for the respondent argued that the reason why he may have known or thought his “Pop” was not there, because he had not come out to greet them when they arrived, did not alter.  She submitted that the alleged “inconsistency” was not material.  That seems to me to be correct.
14. The complainant’s evidence was that the offending conduct happened in a room with a couch in it whose door was shut.  The appellant put a sleeping mask like those used on a plane over the complainant’s eyes.  There was other evidence that the appellant did work for an airline allowing him access to such masks.  It was suggested to the complainant that the appellant only had masks of that nature at another workshop elsewhere.  The complainant did not accept that.
15. In spite of the mask, the complainant could see the appellant.  The complainant was on his knees when the appellant removed his belt and took down his pants.  The complainant saw the appellant’s penis and then the appellant made him suck on it for approximately 15 minutes during which the complainant told him to “suck it like a lollipop”.^[6]  The complainant recalled that the appellant “peed” into his mouth which the complainant, with age, had come to realise was the appellant ejaculating.^[7]
16. After that incident, the complainant said that they stayed at the workshop for some time, that he was watching television on the couch and had seen the news.  He was not sure how long they stayed at the workshop or where they went afterwards.  He did not think that he saw his “grandfather” at all then.  He accepted in cross-examination that he had, on another occasion, said that he “sort of remembered watching television, and Pop was there as well”.^[8]  He then said that he was not 100 per cent sure that Pop was there as well and that it could just be another memory from another day which he left out on the earlier occasion.  He was not sure why his evidence had changed but said that he was “just trying to give the best answer that I think”.^[9]
17. On their way home the appellant told the complainant not to tell his mother what had happened.

The incident in the car - Count 2

18. The complainant’s evidence about the incident in the car was that it occurred in a Mitsubishi Pajero.  The appellant owned a white Mitsubishi Pajero.  The complainant’s mother gave evidence that it was bought after her younger son was born.  The complainant gave evidence that he thought the car was an automatic and he said that he was seated in the front passenger seat with the appellant driving and nobody else in the car.  He thought it was daylight but could not recall what time it was except that he said that it was “maybe late afternoon”.^[10]  He recalled that they were driving to get dinner but could not recall where they were going to obtain it.
19. He said that the appellant pulled the vehicle over to the side of the road, unbuckled his pants, leant the complainant over the centre console to the appellant’s seat and made him suck his penis, which he did for approximately five minutes or less.  The appellant had put his hand on his shoulder to pull him over at the start and the incident finished by the appellant lifting the complainant up again by the shoulder.  The appellant did not ejaculate on this occasion and then drove off.

Defence evidence

20. The appellant did not give evidence himself but called three witnesses; his father, his older sister and one of his daughters.
21. The daughter gave evidence that she and her sister would go to the workshop with her father, grandfather and sometimes the complainant but said that she did not know of any times that the complainant had gone there on his own with the appellant.  Her evidence was, however, that she only saw the appellant and the complainant two nights a week and every second weekend, apart from school holidays.
22. The appellant’s father was 91 years old when he gave evidence.  He said there were times that the appellant attended the workshop (where he had his caravan) with the children, but that he only ever brought the three children, the two step-daughters and the complainant together.  This was contrary to the evidence of the daughter that she and her sister would only sometimes go with the complainant.  The appellant’s father’s evidence was also that when the children came they would come in and talk with him.  He also said that he would not come out every time the appellant or some other person arrived at the workshop to see who was there.  His evidence was, in some respects, inconsistent with the evidence of the appellant’s daughter about what the children would do when they attended the property.
23. The appellant’s daughter also said that her grandfather was always there when she visited and that he would come out to greet them.  She also gave evidence of him watching TV with them.
24. The appellant’s father also gave evidence that he would mostly be at home during the week apart from errands he may run such as transporting the children to and from school.  Sometimes on a weekend he would go out to place bets at the local TAB or visit his daughter and her children.  The appellant did not always telephone him to advise when he was coming, nor did he always come out to see or speak to the appellant when he arrived.  Sometimes he would go into the workshop and speak to the appellant and at other times he would just stay in the caravan.  He also accepted in cross-examination that there were times that he would return home when the appellant would already be at the workshop.
25. The respondent’s submission in respect of this evidence was that the appellant’s grandfather’s evidence did not preclude him from being absent from the premises at the time of the alleged offending, the subject of Count 1, or potentially present at the property, but not in the workshop, at the time of the incident.
26. There was also evidence from the appellant’s older sister that the appellant had a rule that children were not allowed to sit in the front seat of a car until the child attained double figures, namely 10 years of age.  The appellant’s daughter’s evidence was that her father had a rule that children were not allowed to sit in the front seat of a car until they were 13 years of age.  In cross-examination, the appellant’s daughter accepted that there were occasions when she and her sister would fight about who was able to sit in the back seat.  She also accepted that her sister did not turn 13 until May 2005 and that her father and the complainant’s mother separated in mid-2005, the year her sister turned 13.
27. The complainant’s mother did not accept the existence of any such rule in her evidence.  Nor did the complainant.  It seems clear on the evidence and cross-examination, also, that there was no clear basis for the appellant’s sister to hold the belief that the appellant would not allow children to sit in the front seat of a car until they were 10 years old.  She also had limited opportunities to observe any enforcement of that rule.  There was, therefore, conflicting evidence about whether such a rule existed.

Preliminary complaint evidence

28. The first preliminary complaint appears to have been one made by the complainant to the younger step-sister, closer in age to him.  She did not give evidence either for the prosecution or for the appellant.  The appellant and that daughter had fallen out with each other.  As a result the appellant had indicated that he did not wish any of the complainant’s family to have contact with her.  The complainant was, however, in touch with her on Facebook.  He was informed that he was to cease contact with her otherwise there would be repercussions in relation to his contact with, or his mother’s custody of, his younger half-brother.
29. A Facebook message exchange between the complainant and his younger step-sister between 31 May and 1 June 2011 became Exhibit 2 in the trial.  The complainant indicated to his step-sister that he had something to say about the appellant should he try to obtain custody of the younger half-brother.  He was hesitant to indicate what that was until he was pressed by his step-sister who asked him directly if he had been sexually assaulted by the appellant.  The complainant confirmed that he had been many years ago, once in the workshop and once in the car.  He also asserted that the appellant blindfolded him. This was consistent with his evidence at the trial.
30. On Boxing Day 2011, the complainant’s contact with his step-sister was discovered by the appellant and relayed to the complainant’s family.  The complainant’s mother and grandfather spoke to him and informed him that he may not be able to have contact with his half-brother if he did not cease having contact with his step-sister.  The complainant then sent a text message to his mother and grandmother informing them that the appellant had taken him to the workshop, made him “suck his dick”, blindfolded him and told him not to tell his mother.  He did not mention the episode in the car the subject of Count 2.  He also told them that his step-sister was the only person he had ever told, which was why he kept in contact with her.
31. He denied the suggestion made to him in cross-examination that he had been motivated to make a false complaint out of fear that he and his mother would not be able to keep contact with his half-brother.
32. The Facebook exchange included an emoticon, a symbol, “:s”,^[11] at the end of an answer by the complainant where he confirmed he had been sexually assaulted.  The appellant’s counsel suggested in cross-examination the symbol indicated uncertainty.  When asked what the symbol was in evidence in chief, the complainant said “I’m not sure; just confused, I guess”.^[12]  In cross-examination he said: “I might not have been confused at the time, but that was just the face I used”.^[13]  He rejected any suggestion that the use of the symbol represented uncertainty in his own mind about being sexually abused.

Ground 1: Were the verdicts unreasonable?

33. The appellant’s argument that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of his guilt of both offences included the following criticisms:
    1. The complainant’s evidence was sparse and provided little contextual detail for the offences so that the jury was therefore unable to evaluate reasonably whether the offence contained credible detail or accorded with the jury’s understanding of human behaviour.
    2. There was a troubling vagueness to the context which was referred to by the complainant.
    3. There was no independent evidence supporting the complainant’s allegations with some aspects of it being contradicted by the defence evidence.
    4. There was a delay of as much as 10 years between the commission of the first offence and the first preliminary complaint.
    5. The complainant, at the age of 19, purported to describe events that occurred when he was a young child with the attendant risk to memory over time.
    6. There were inconsistencies in the evidence about whether the complainant visited the workshop without his siblings.
    7. Elements of his account were improbable, such as the appellant choosing to stop his Pajero on the side of a main road to interfere sexually with the complainant.
    8. There were arguable inconsistencies as to whether the appellant’s father was at the workshop at the time of the offence in Count 1.
    9. There was an identifiable motive for the complainant to make a false complaint of sexual misconduct against the appellant by the time the preliminary complaints were made in June 2011 and Boxing Day 2011.
    10. The complaint to the complainant’s step-sister in June 2011 was made in response to her leading statement and was accompanied by a symbol denoting uncertainty or confusion.
    11. The text message sent by the complainant on Boxing Day 2011 did not include a reference to any incident alleged to have occurred in the Pajero.
    12. There was no reasonable explanation for the absence of complaint between 2005, when the appellant and the complainant’s mother ceased cohabiting, and June 2011.
    13. Even before 2005 when the appellant’s father was taking the complainant and siblings to school, he made no mention of any sexual interference to him, even though he trusted him.
    14. The evidence as to whether a child of his age would have been permitted to ride in the front seat of the appellant’s vehicle suggested that he would not have been, thus undermining his credibility in relation to Count 2.
34. The respondent did not accept that those matters were of such significance that the jury were unable to act upon the complainant’s evidence as honest and reliable.  Ms Wooldridge submitted that the absence of such details could readily be attributed to the circumstances of the offence and the passage of time. She pointed to other objective features which were established on the evidence supporting a conclusion that the complainant’s account was based in reality, such as his attendance at the workshop, his description of the room with the couch and the television and the access the appellant had to an eye mask of the type used on planes.  She submitted, and it seemed to me to be accurate, that it was not established on the evidence that the appellant’s father was close by when the offence was committed.  She also pointed to the complainant’s age at the time and his ability to understand the nature of what was occurring as matters which needed to be taken into account when assessing his evidence.  She submitted, which also seemed to me to be correct, that these were matters for the consideration of the jury and did not render the complainant’s account so wholly improbable that it could not be acted upon by a jury.
35. Any inconsistencies in the complainant’s evidence about whether he watched television with his Pop or alone after the offence had occurred was again a matter that the jury were entitled to consider in assessing his evidence but not such as to justify a jury not being satisfied beyond a reasonable doubt on the complainant’s evidence that the incident referred to in Count 1 had occurred.
36. The appellant criticised the complainant’s evidence of the events associated with Count 2 as vague.  Ms Wooldridge countered by arguing that, while the complainant could not recall the time it occurred with any precision, he could recall that they were driving to get dinner, that it was daylight and “maybe late afternoon”.  She submitted that, in the context of the complainant’s age at the time of the incident and the passage of time, the absence of further details is understandable.  I accept that submission.
37. Her submission was that the brazenness suggested in respect of that event and other arguments advanced by the appellant in respect of the reliability of the complainant’s evidence were matters for the consideration of the jury and, again, not such as to render the complainant’s account so wholly improbable that it could not be acted upon by the jury.
38. She argued that the evidence of the preliminary complaint, including the suggested motive to lie associated with the threatened lack of access to his younger half-brother, also were matters for the jury.  The complainant had denied the alleged motive for him to make a false complaint and Ms Wooldridge submitted that the jury were also entitled to use the consistency of his previous disclosures in assessing his credit and that it was a matter for the jury that his message to his mother and grandmother did not refer to the incident in the car.  She pointed out that his disclosure to his half-sister did refer to the incident in the car.  That disclosure also referred to the use of the blindfold.
39. In the circumstances, I am not persuaded that the appellant has shown on the whole of the evidence that it was not open to the jury to be satisfied beyond a reasonable doubt of the appellant’s guilt.  As Mason CJ and Deane, Dawson and Toohey JJ said in M v The Queen:^[14]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

40. In my view, the jury was entitled to reach the conclusion it did on the evidence led in this case.  The criticisms of the complainant’s evidence were not such as to require the jury to disbelieve him or to conclude that they could not rely upon it to establish the appellant’s guilt beyond a reasonable doubt. 

Ground 2: Did the learned trial judge adequately direct the jury in accordance with the decision of R v Markuleski?

41. The decision in R v Markuleski^[15] is authority for the common direction that reminds the jury that separate charges should be considered separately and that they should evaluate the evidence relating to each particular charge to decide whether they are satisfied beyond a reasonable doubt that the prosecution has proved its essential elements.  His Honour, the learned trial judge, gave such a direction in this case.  It read as follows:^[16]

“There are two separate charges to be considered and determined by you.  You must consider each charge separately, assessing the evidence relating to that particular charge, to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the guilt of the accused in respect of that charge.  It’s as if we’re having two separate trials, but doing them at the same time.  That’s how it is.  You will therefore, of course, return a separate verdict for each charge.  The evidence in relation to the two separate offences is, of course, different in the circumstances that have been identified, and so your verdicts need not be the same.  But, of course, each charge depends entirely upon the credibility and reliability of the complainant as to what he said occurred in the shed and in the car.

Your verdicts must be logical.  There is no room for compromise verdicts.  If you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of the charges, for whatever reason, that must be taken into account when you are assessing whether the complainant was truthful and reliable generally in his allegations against the accused.”

42. It was submitted for the appellant that, as defence counsel at the trial submitted, the jury may have had a doubt about the complainant’s reliability and credibility on Count 1 because of the state of the evidence about the whereabouts of his grandfather at the time.  That doubt would impact on their view of the complainant’s reliability and credibility in respect of Count 2.  Defence counsel also submitted that the complainant’s version of Count 2 was arguably less plausible than his version of Count 1 because of the allegation that the sexual misconduct occurred beside a road in daylight with other cars going past.
43. Mr Walker SC for the appellant, who was not the trial counsel, argued that the direction given was inadequate because of his Honour’s failure to direct the jury to consider the reason why they might have a reasonable doubt about a part of the complainant’s evidence and whether it affected the way they assessed the rest of his evidence.  He submitted that a direction along the lines of the final three paragraphs in the Queensland Supreme and District Courts Benchbook^[17] should have been added.  That passage reads as follows:

“Your general assessment of the complainant as a witness will be relevant to all counts, but you will have to consider her evidence in respect of each count when considering that count.

Now, it may occur in respect of one of the counts, that for some reason you are not sufficiently confident of her evidence to convict in respect of that count.  A situation may arise where, in relation to a particular count, you get to the point where, although you're inclined to think she’s probably right, you have some reasonable doubt about an element or elements of that particular offence.

Now, if that occurs, of course, you find the defendant not guilty in relation to that count.  That does not necessarily mean you cannot convict of any other count.  You have to consider why you have some reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence, that is whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about the part of her evidence relevant to any other count.”

44. While those passages are longer than the final sentence extracted from the learned trial judge’s summing up, they do not seem to me to add anything of substance in this particular case.
45. His Honour drew attention to defence counsel’s criticisms of the complainant’s evidence, both as to its reliability and credibility, on several occasions in his summing up.^[18]   Particular reference was made by his Honour to the criticism of his evidence about the presence or absence of the appellant’s father after the event at the workshop.^[19]  While those references to counsel’s submissions were not particularly tied into this direction, it was made clear to the jury that they should, if they had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of the charges, for whatever reason, take it into account when assessing whether the complainant was truthful and reliable generally in his allegations against the accused.  The jury were clearly instructed about the criticisms of the complainant’s evidence in respect of each charge. 
46. No redirection was sought by defence counsel on this issue.  The direction that was given seems to me to have been appropriate for this case and not to have led to any miscarriage of justice.

Ground 3: Did any failure to direct the jury in accordance with the principles derived from Robinson v The Queen result in a miscarriage of justice?

47. A Robinson^[20] direction is given in circumstances where it is appropriate to warn the jury that they should scrutinise the evidence of a witness with great care before arriving at a conclusion of guilt because of the particular circumstances of the case.  The circumstances in which it can be given are affected by the terms of s 632 of the Criminal Code:

“632Corroboration

(1)A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.

(2)On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.

(3)Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.”

48. No such direction was sought in this case.  His Honour did, however, give a Longman^[21] direction in the following terms:^[22]

“Now, in this case you can only find the accused guilty of the charges in question if you are satisfied beyond reasonable doubt that the complainant is a truthful and reliable witness.  Because, as you’d appreciate, it is only the complainant who gives evidence that the sexual activity in fact took place.

Now, there has been a long delay between the dates of the incidents alleged and the date of complaint.  The complainant’s long delay in reporting the incidents which he says happened back in the period 2001 to 2004 has this important consequence: his evidence cannot not be adequately tested or met after the passage of so many years, the accused having lost by reason of that day^[23] means of testing and meeting the allegations that would otherwise have been available to the accused.  By the delay the accused has been denied the chance to assemble, soon after the incidents are alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incidents happened.

Had the complaint instead been made known to the accused soon after the alleged events, it would’ve been possible then to explore the pertinent circumstances in detail and perhaps to gather and to look to call at trial evidence throwing doubt on the complainant’s story.  So as you can see, there’s necessarily opportunities lost by the delay.  The fairness of the trial as the proper way to prove or challenge the accusations has necessarily been impaired by the long delay.

In the circumstances, I warn you that it would be dangerous to convict in this case.  However, you may convict.  You may convict if, and only if, after scrutinising the complainant’s evidence with great care, considering the circumstances relevant to the assessment of his evidence and paying heed to the warning that I’ve just given you, if having done those things you are satisfied beyond reasonable doubt of the complainant’s truthfulness and reliability and the truthfulness and accuracy of his evidence, then you may of course convict.”

49. During their deliberations the jury asked about his Honour’s comments regarding “the dangers of delivering a conviction in this case” and received a redirection in essentially the same terms as those I have just set out.^[24]  They later indicated they could not agree unanimously on a verdict.  His Honour delivered the standard Black^[25] direction.  They delivered a unanimous verdict the next day.
50. The appellant’s counsel submitted that the remarkably sparse detail of the offences and the events surrounding them given by the complainant in relation to both counts created a forensic disadvantage for the appellant, which was not necessarily obvious to lay members of the community.^[26]  The argument was that the learned trial judge should have specifically alerted the jury to the possibility of error in the complainant’s recollection where the incidents were alleged to have occurred when he was a child and where the recollection of events occurring in childhood may be liable to distortion over time.  The Longman direction only targeted the risk of forensic disadvantage to the appellant by reason of the long delay in his reporting the offences.
51. The submission was, therefore, that the learned trial judge should have stated, as reasons supporting a warning about the danger of conviction: the complainant’s age at the time of the offences, that the likelihood of error in recollection can be expected to increase with time, that experience has shown that recollection of events occurring in childhood is often erroneous and liable to distortion over time,^[27] the absence of other evidence to support the complainant’s testimony and the particular lack of detail about the allegations and the matters surrounding them.  It was submitted that defence counsel’s failure to seek such a direction could not be said to have been for forensic or tactical advantage.
52. Carmody CJ said in R v Reynolds^[28] that a Robinson direction is of a special and exceptional nature which:

“[39]… will generally only be required in circumstances where the factual matrix giving rise to the ‘perceptible risk’ is outside the ordinary experiences of the jury.  Accordingly, although not a substitute for the ‘perceptible risk’ test, a cogent indicator of the need for a Robinson direction is the existence of a forensic disadvantage to the accused emanating from the factual matrix which is perspicuous to the trial judge, but not necessarily to lay members of the community”.

53. Similarly, Applegarth J had said in R v MBX:^[29]

“[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.

[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.  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.’”

54. As I have already pointed out, the learned trial judge in his summing up drew attention to the defence submissions about the lack of surrounding details in the evidence of the complainant and his credibility and reliability generally.  Here, where the Longman direction had been given in clear terms, in my view there was no other forensic disadvantage to the appellant arising from the matters submitted for him that would not have been obvious to a jury also.  This includes the issue of the enhanced risk of unreliability caused by the delay between events happening when the complainant was young and his giving evidence in a trial.^[30]
55. To go further, as was submitted should have been done here, runs the risk of infringing that part of s 632(3) of the Criminal Code prohibiting a judge from warning or suggesting “in any way to the jury that the law regards any class of persons as unreliable witnesses,” the relevant class here being young children.  As the respondent submitted, there was no suggestion in the present case of any particular or special quality of the complainant’s evidence, such as suggestibility or mental frailty or some other such tendency which should alter the decision in the specific circumstances of this case.

Conclusion and order

56. The appellant has not shown that the jury’s verdict was unreasonable or that his Honour misdirected the jury in respect of the Markuleski direction or that a Robinson direction was required in the circumstances.
57. Accordingly, the appeal should be dismissed.