TE v R

ALLSOP P: On Tuesday 28 June 2011, the Court heard an application by the applicant for an extension of time to file and serve a notice of appeal against conviction and for leave to appeal against his sentence in respect of 23 offences for which he was found guilty by a jury after a trial of over two weeks in the District Court. On the day of the hearing the Court made orders: (a) extending time for the filing of a notice of appeal up to 30 March 2011; (b) granting leave to appeal, to the extent leave be required; (c) allowing the appeal; (d) quashing the convictions and sentences imposed on the applicant in the District Court; and (e) ordering that there be a new trial.

These are my reasons for making the orders on 28 June.

Prior to 1 January 2007 (the relevant date for the operation of the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (NSW) (the “Amending Act”) in its amendments to the Criminal Procedure Act 1986 (NSW), s 294) the appellant, TE, was charged with 24 offences in relation to two persons: A and M. Regarding A, the appellant was charged with eleven counts of sexual intercourse with a person under 16 contrary to the Crimes Act 1900 (NSW), s 66C(1), and three counts of aggravated indecent assault upon a person under 16 contrary to the Crimes Act, s 61M(1) committed between August 1996 and December 1999 against A when she was between 11 and 14 years of age. Regarding M, A’s mother, the appellant was charged with eight counts of assault contrary to the Crimes Act, s 61 and one count of maliciously inflicting grievous bodily harm contrary to the Crimes Act, s 35(b) (with an alternative count of assault occasioning actual bodily harm) upon M during the same period.

The sole ground of appeal against conviction is that the primary judge did not direct the jury in accordance with Longman v The Queen [1989] HCA 60; 168 CLR 79.

At the trial, the Crown submitted, and defence counsel conceded, that the Criminal Procedure Act, s 294 (as amended by the Amending Act) applied thereby making a “Longman direction” unnecessary. The primary judge determined that the Amending Act operated, a Longman direction was not required, but that he was not precluded from giving directions concerning the fact of delay and of its effects.

As the later decisions of this Court (TJ v R [2009] NSWCCA 257; 76 NSWLR 167 and ST v R [2010] NSWCCA 5) establish, his Honour erred in holding that the amended s 294 applied. The appropriate Longman direction was required to be given.

Both counsel at the trial proceeded on the premise that the amended s 294 applied. Nevertheless, defence counsel submitted that the circumstances were such as effectively to require a Longman direction. Counsel submitted as follows: “The statutory formulation in section 294 of the Criminal Procedure Act covers the case where there is a bear (sic) reference to something arising out of delay per se. This is a case where it has been put to both the complainants that they had numerous opportunities to complain between certain dates and they did not avail themselves of the opportunities. The opportunities have been referred to. This is not merely a case where we are saying there has been an efflux of time and nothing more. This case goes far beyond doubt that, we say, and it entitles us to a Longman direction with specific reference to the evidence in this particular case, because it has not been run simply on the basis of; these events happened in 1996, 1997, 1998, as alleged by you, but there was no complaint, in A’s case, until 2002. We say that is not the sole basis, but in between that time, you were seen by all these people and this matter was specifically put to you. In addition to that, in relation to the matter that (sic) Stockton Beach, and the matter before you it, she was interviewed by the police twice and asked whether she had been sexually assaulted by the accused; a positive denial. We say this is a much stronger case than merely the effluxion of time. Your Honour has to have regard to the particulars of the evidence in this case when deciding to give a warning. Such warning as is given, cannot be just in balanced terms. It must be one that links it into the specific evidence given in this case.” (I will come to the events that place this submission in context in due course.)

The judge refused defence counsel’s submission that the jury should be directed that the appellant had suffered procedural disadvantage by the change (that was assumed) in the law.

The primary judge did, however, conclude that the appellant had suffered a significant forensic disadvantage. His Honour, in the absence of the jury, identified the terms of the directions that he proposed and provided counsel with an opportunity to comment on them.

In all the above circumstances, the Crown effectively accepted in this Court that the Criminal Appeal Rules, Rule 4 should not prevent the point now being raised.

The bulk of the delay in appealing was due to factors outside the control of the appellant that are unnecessary to recount. The Crown did not oppose an extension of time for filing the notice of appeal.

The substantive issue on appeal was whether there had in fact been no miscarriage of justice, by reason of the direction actually given and its substantive conformance (or not) to the requirements of Longman. The requirements of Longman

Before turning to the facts it is necessary to set out the essence of what the primary judge was obliged to say to the jury. The cases of Longman; Crampton v The Queen [2000] HCA 60; 206 CLR 161 and Doggett v The Queen [2001] HCA 46; 208 CLR 343 concern the necessary character and content of a warning that was required to be given in circumstances of delay in cases of sexual offences. A significant number of cases in this Court have analysed the principles. I refer in particular to R v BWT [2002] NSWCCA 60; 54 NSWLR 241; R v JBV [2002] NSWCCA 212; R v GPP [2001] NSWCCA 493; 129 A Crim R 1; R v Roddom [2001] NSWCCA 168; R v Roberts [2001] NSWCCA 163; Sheehan v R [2006] NSWCCA 233; 53 NSWLR 138; 163 A Crim R 397; TJ v R [2009] NSWCCA 257; and ST v R [2010] NSWCCA 5.

In order to explain the disposition of this matter, it is unnecessary to engage in any further exegesis on the relevant principles than already exists in the cases. With the recognition that can be taken in particular from TJ and Sheehan that no particular form of words is required (the principle being one of substance, not form), clear guidance can be taken from the reasons of Sully J in BWT. The following propositions relevant to this appeal can be distilled from 272-275 [95] of his Honour’s reasons (with which Wood CJ at CL and Dowd J agreed) as to the requirements of the rule: (a) A so-called Longman direction must be given in any criminal trial, a feature of which is substantial delay in complaint of alleged sexual offences of the accused. (b) The direction must be cast in a form that manifests, and is seen plainly to manifest, characteristics as follows: (i) The direction is a warning, not merely a comment or caution. (ii) As the evidence of the complainant could not be adequately tested after the (relevant) delay, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. (iii) The substance of the warning must be carefully and correctly focused and the form of the warning must be carefully and correctly framed. The warning must be such as to bear unmistakably the imprint of the Court’s own authority – making clear that the foundation of the authoritative warning of the Court is the accumulated experience of the courts in dealing with cases characterised by substantial delay in making complaint about alleged sexual offences. This needs to be explained as more than the common sense of jurors. (iv) The direction will be difficult in cases where the complainant’s evidence does not stand entirely without corroboration. In such circumstances, the warning will, of necessity, go into any such matter of corroboration. (v) The fact that a direction is both “practical and sensible” or “brief and temperate” (see BWT at 276 [96] and [97]), is no substitute for giving the warning with the clarity and force required by the above principles. The trial

From the above, it is elementary that one can only assess the legitimacy of the direction to the jury with an understanding of the course of the trial and the background circumstances.

The first complainant, A, was the daughter of the second complainant, M. In early 1996 M was a single mother and she and A were living at an address in Connells Point. At that time M was about 42 years old and she was working as a school teacher. M met the appellant, who was then aged about 21 years, through a teenage neighbour, JK, who was 15 when the appellant met M. After M had had a relationship with JK, a relationship developed between M and the appellant and the appellant moved in and began living with M and A. A was 10 years old at that time. The relationship between the appellant and M continued until early 1999 and the offences charged on the indictment were all alleged to have been committed during the currency of the relationship.

A gave evidence that she first met the appellant through JK. She said that the appellant was 11 years older than she was and that initially they got on together quite well. She thought that she was in fourth grade when the appellant moved into her home and that it was in 1995 or maybe 1996. She felt very angry when that occurred because she wanted her and her mother to live by themselves. During Year 5, A was suspended from school and she stayed at home for a period of two weeks. She recalled that one morning during that period she got into her mother’s bed after her mother had gone to work. The appellant was in the bed and he moved close behind her and rubbed his penis against the back of her leg. He put his hands inside her pyjama pants and rubbed the outside of her underwear in the area of her vagina [Count 1: aggravated indecent assault upon a person under 16 years, s 61M(1)]. The appellant then put his hand inside her underpants. He rubbed her vagina and then he put his finger inside her vagina [Count 2: sexual intercourse with a person under 16 years, s 66C(1)]. A gave evidence that it hurt because the appellant had long fingernails. She told the appellant that it hurt and that she did not want him to do it and then she got out of bed. She did not tell her mother what had happened when her mother got home.

A gave evidence that she did not go to school very frequently. She did not like going to school and she used to stay at home with the appellant. Her mother did not know that she was not going to school.

A gave evidence that on one occasion, when she was at home, missing school without her mother’s approval, she was watching cartoons. The appellant came over to where she was on the couch. He told her to be on her hands and knees on the couch and then he pulled her underpants down and rubbed his penis against her buttocks [Count 8: s 61M(1)]. He tried to put his penis into her vagina and succeeded in getting it in “a little bit” [Count 7: s 66C(1)]. It hurt and it did not fit all the way. The appellant ejaculated over her back. He wiped her with a towel and then she had a shower. She was bleeding and it “really, really hurt”. Later that day they picked her mother up. She did not tell her mother what had happened. Also on that occasion, A said that she was on the armchair and the appellant came over and told her to kiss him. She said that she did not want to. The appellant kissed her on the lips and then he put his tongue inside her mouth and moved it around. He then undid his pants and told her to put his penis in her mouth. He held the back of her head and pushed his erect penis into her mouth [Count 9: s 66C(1)]. The incident ended when the appellant ejaculated on the couch. A gave evidence that she thought that the incidents that constituted counts 7, 8 and 9 on the indictment all occurred on the same day. She was living at Connells Point and she thought that she was in Year 6. She did not tell her mother.

A gave evidence that, during the summer holidays between Years 6 and 7, she and her mother and the appellant went on a camping trip to a beach near Newcastle. On the way there, they stayed at a motel. Her mother went to sleep and she and the appellant went to the motel swimming pool. There were no other people around. A was in the pool, sitting on the steps and the appellant touched her swimming costume on her vagina. He then put his hand inside her swimming costume and put his fingers inside her vagina [Count 10: s 66C(1)]. A said that the appellant then took her hand and put it inside his boxer shorts and onto his erect penis. He then rubbed his penis with her hand [Count 11: s 61M(1)]. The appellant then pulled down the boxer shorts that he was wearing as swimwear and pulled her over to him by her waist. He pulled her swimming costume to the side and put his penis into her vagina [Count 12: s 66C(1)]. A said that “maybe a centimetre or so” of his penis went into her vagina and it hurt. She said that the appellant told her that if she relaxed it would not hurt. A said that her mother came out of the room. The appellant moved away from her and she just kept swimming around the pool. She did not tell her mother what had happened.

A said that later she and the appellant went for a drive. The appellant let her sit on his lap and steer the car. She got off his lap and he pulled off the road into a rest area. The appellant reclined the driver’s seat and asked her to get onto the driver’s seat with him. She did so and the appellant started touching her vagina. He pulled his penis out from his pants and put it into her vagina [Count 13: s 66C(1)]. A said that it did not go in very far and that it hurt. She thought that she was still wearing her swimming costume at the time. Another car came into the area and parked behind them. A tried to get away from the appellant and he told her that it would be okay, that they could not see anything. She told him that she wanted to go home and they went back to the motel. She did not tell her mother about this.

A gave evidence that the next day they drove to Stockton Beach. They drove around the sand dunes for a while and then they put up a tent. Her mother went for a walk on the beach. The appellant came into the tent and pushed her down onto her back. He got on top of her and pulled off her shorts. He pulled his own shorts down, touched her vagina and then put his finger inside her vagina [Count 14: s 66C(1)]. The appellant then put his penis into her vagina [Count 15: s 66C(1)]. A said that the appellant’s penis did not penetrate her vagina a lot. She said that the appellant did not have his penis in her vagina for very long because her mother came back. A said that when the appellant heard the tent being unzipped he jumped away from her. Her mother yelled at him. He went out of the tent and hit her mother. The appellant hit her mother in the face and then threw her to the ground into a bush. He was hitting and kicking her mother while she was on the ground. A said that she was standing away from them, screaming. She could not remember what she was saying. The appellant hit her mother for a long time. When he finished hitting her mother, her mother got up and ran away and said that she was going to call the police. A said that she stayed at the tent with the appellant when her mother went to call the police. She said that she did so because she did not want the police to come and take her away. She said that the incident occurred at almost sunset. It was still light when her mother ran away but it was dark when she came back with the police. The appellant was put in a paddy wagon and she and her mother were taken to a police station, in separate vehicles. When she was being taken to the interview room at the police station she saw the appellant in a “glass box”. He was banging on the walls and screaming at her when she walked past. She could not hear what he was saying.

When A was interviewed by a police officer she did not tell the officer what had happened to her. She gave evidence that that was because they might have taken her away or the appellant might have hurt her mother. A said that after she and her mother had been interviewed they travelled home by train.

M’s version of events about this holiday was as follows. M remembered going on a camping trip to Nelson Bay, during the school holidays, with the appellant and A. On the first night they stayed at a motel in Newcastle. M said that she had a couple of drinks and became very tired. She went to sleep and the appellant and A went out. The next day they went to Nelson Bay. They drove down to Stockton Beach and stopped at some sand hills where they set up the tent. During that day the appellant told her that his mother was arranging for him to marry his cousin. M said that she was cross and disgusted. The appellant and A went driving around the sand hills but she did not want to go with them and she walked down to the beach. M said that when she returned to the tent it was still bright daylight. She went up to the tent and opened the zipper. She saw A lying down with no pants on. The appellant was half naked. He was on top of A with his pants half down. A was 10 years old at the time. M said that she said, “Oh my God” and backed out of the tent. The appellant grabbed her by the back of the hair and slammed her down on her back on the sand outside the tent. He started yelling and screaming. He was pushing hands full of sand into her hair and belting her in the forehead. He was grabbing sand and pushing it into her face. He then pushed her into the tent and threw beer bottles at her legs. M said that the appellant then told her to get out of the tent which she did. He pushed her down onto the ground again and pushed sand into her face. She said something to him about what he was doing with A and he said, “That’s got nothing to do with it”. The appellant said that A had told him that when they were at Gairie Beach she had had men in the tent at night. M said that she told the appellant that that was not what happened and that it was rubbish. The appellant did not believe her. He was rubbing her face in the sand and banging her head. He then told her to take the car and get away. M said that she said to A, “A, come on, let’s go darling”. A was sitting huddled crying. A said, “Oh no, he didn’t hurt me mum, he didn’t hurt me”. M said that she got into the car and drove down the beach and then rang triple 0. Later the police came and took her and A to Nelson Bay Police Station where they were interviewed separately. The police took out an apprehended violence order (“AVO”) against the appellant. The next day M and A caught a bus and train back to their home at Connells Point.

There was no suggestion in the evidence that A told her mother M what had happened in the tent.

A’s version of events as to what happened when she and her mother returned home was as follows. A did not know what happened to the appellant at the police station but when they got home he was there. He screamed at her mother and hit her. M’s version of what happened was that when they arrived the appellant was inside the house. M said that the appellant told her it was all right, to sit down and be calm. He said that he loved her and that they could sort through this. M was asked whether the appellant said anything to her about what had happened at the beach and why he had done those things. She answered, “… he said he didn’t know what had got into him and it would never have gone further than that”. M said that she settled down and agreed to let the appellant stay. The appellant told her never to involve the police in things, that they could sort it out by themselves. M said that they were sitting on the lounge and she said something to the appellant to indicate to him that what he had done was inexcusable. He then started throwing wine glasses at the wall above her head [Count 16: assault, s 61]. He threw two glasses and they hit the wall above where her head was. The appellant was angry and he was shouting. M said that she went to have a shower and the appellant followed her. He was pushing and shoving and punching her while she was in the shower.

M said that she made a statement to the police about what had happened at Stockton Beach on 25 January 1997. Later, on 2 August 1997, she made another statement retracting the first statement. She had made a statutory declaration to the same effect on 1 March 1997. She said that she made the statutory declaration when the appellant told her that the only way he could get away with not paying $85,000 was for her to retract her statement and say that it was wrong. M said that she lied in her statement of 2 August 1997. She did so because the appellant told her that it was something that should never have happened and he wanted them to start again and become a family. He told her that it would ruin his life if she pursued it. If she didn’t pursue it they could just carry on and become a happy family. M said that she retracted the first statement because she was scared that A would run away and that she would lose her. She said that she also lied in her statutory declaration.

Thus, any corroboration of the Stockton Beach incident was retracted, but those retractions were, it was said in evidence, lies.

A gave evidence about life with the appellant living with them. A gave evidence that the appellant was very violent; there was no money and the appellant used to sell all their “stuff”. He became “crazier and crazier”. He would hit her mother all the time and throw things at her mother, although he was not really violent towards her. A gave examples of the appellant’s violence towards her mother. On one occasion, the appellant poured milk over her mother’s head while she was on the phone and then threw his guitar amplifier. As a result of that incident her mother broke her ribs and punctured her lung and was in hospital for a long time. One time the appellant threw her mother at the door between the hallway and dining room and another time he threw her mother into a wardrobe and banged her head into the wardrobe. She thought that her mother suffered a black eye as a result of the wardrobe incident. One time the appellant threw a plate at her mother and one time he threw a bottle-stopper at her mother. One time he threw his coffee cup at her mother. A said that on one occasion the appellant threw her bookshelf at her, A, but it hit the wall. A said that there was never any money because the appellant spent all the money on heroin. Her mother was supporting them on her income. A became aware that the appellant was using heroin shortly after she met him. He came in one night with one of his friends, bragging about how he had taken heroin. A gave evidence that the appellant left his needles all around the house and that he used to shoot up in front of her. He also used to take her with him when he bought heroin.

A gave evidence that her relationship with her mother had not been great most of the time although it had been “getting good” before the appellant moved in. She said that when the appellant moved in she was angry with her mother because she wanted them to live by themselves. The appellant used to make her mother put him first and she was angry with her mother about that. She was angry with her mother about what was happening and her mother was not helping. She and her mother had arguments all the time.

A gave evidence about an incident that occurred after an argument with her mother. At the time they were living at Kyle Bay. She was in Year 6 and it was 1997. It was around the time that she went to Stewart House because of her suspension from school. After the argument with her mother, A left the house and went to a nearby park. The appellant followed her. They talked for a little bit and then the appellant started touching her. He put his hand up her skirt and she asked him not to because she had her period. He told her that it would make her feel better and she said that she still did not want him to do it. The appellant put his hand inside her underpants and put his finger in her vagina [Count 21: s 66C(1)]. A said that she thought that she was wearing a tampon. She did not know what happened to the tampon. She said that the appellant had his finger in her vagina for “maybe a couple of minutes”. He then pushed her over so that she was facing the slippery-dip. He pulled her underpants to the side and tried to put his penis into her vagina [Count 22: s 66C(1)]. A said that the appellant only got his penis “a little bit in”. It hurt and she cried. The appellant spent about 10 minutes trying to insert his penis into her vagina and then he stopped. It was night time and it was dark. A was not aware of any people being around. She did not say anything to her mother when she returned home.

A gave evidence of an incident that occurred when she was in high school. She fought with her mother and went to her bedroom because she was upset. She got into bed and she was crying. Her mother came into the room and she told her mother to leave. After that the appellant came into the room and got into her bed. At first he was comforting her. Then he climbed on top of her and kissed her on the mouth. While he was kissing her he pulled down her pyjamas and her underpants and put his fingers inside her vagina [Count 23: s 66C(1)].

A remembered that at the time of that incident her mother went out onto the balcony outside her room. Her mother was screaming that she knew what was happening, that she was going to tell the police and that there was a tape-recorder in the room and she was recording what was happening. A said that she said that nothing was happening and for her mother to go away, which she eventually did.

A said that the incidents that she had given evidence about were not the only occasions when something of a sexual nature happened between herself and the appellant. She said that when she was giving her statement those were the only incidents about which she could remember some more details.

Both A and M gave evidence of violence towards M after the incident at Stockton Beach. A said that after the camping incident when the police were involved the appellant went to see a lawyer. She said that she heard about the appellant having to see a lawyer because he was fighting with her mother about how much money it was costing and he was “really violent” with her mother. The appellant was swinging his guitar around and then he chased her mother around the room and into her bedroom. He pushed her mother into the wardrobe and then he chased her around the house and pushed her down on a chair. M said that the appellant was charged with assault following the incident at Nelson Bay. She recalled an incident that occurred after the appellant had gone to see his solicitor. He came home, bursting through the door, shouting and screaming that it was going to cost him $85,000. He picked up an electric guitar and started throwing it around his head. He came towards her and made as if to smash the guitar on the furniture. M said that she ran towards the appellant and tried to say to him how ridiculous it was and to calm down. She then went into the kitchen and he followed her. He caught her by the back of the head and shoved her with both hands into a wardrobe [Count 17: assault, s 61]. M said that her face slammed into the wardrobe and she thought that she was going to die. M said that when she looked up she could tell by the look on the appellant’s face that something really bad must have happened. She could feel her face. It felt like her face was going to fall off. She remembered that A was sitting there staring at her face. The appellant said something like, “What do you think we should do?” and A said, “Oh, why don’t you just kill her?”. M said that she did not report the incident to the police. She did not see a doctor and she explained the injury to her face to people by saying that A had accidentally hit her in the face with an inline hockey stick.

A was asked when she had first told anybody about what the appellant had done to her. She said that she “kind of mentioned it briefly” to a couple of her friends later in high school but that the first time she told anyone the details of what had occurred was when she told Detective Rogerson when she was 16 or 17. A commenced her statement to the police on 31 October 2002 and completed it on 28 December 2005. She said that she only did a little bit of the statement at a time because it was very upsetting. She was prompted to complete the statement when she saw the appellant at a shopping centre on Boxing Day 2005.

The cross-examination of A revealed the following. She lied to the police about the camping trip. Late in 1997 she denied to the police that she had ever been sexually assaulted, and in particular on the camping holiday. She told the police that any statement to her mother that she had been sexually assaulted was to hurt her mother and was not true. She now said that the denials were a lie. A agreed that she disapproved of her mother being in a relationship with the appellant. She said that it was not appropriate. She agreed that when the appellant first moved in she was very angry with her mother. She said that initially she got along with the appellant.

A said that she did not complain to anyone about what had happened because she thought that she would be taken away form her mother and that the appellant would hit her mother and that he would still be there anyway and she would get in trouble from him.

A agreed that she did not ever complain to her grandmother or to her auntie about being sexually assaulted. She gave evidence that she was not close to either of those persons and that she did not believe that her family members would help her.

A agreed that she was aware that while the appellant was with her mother he had a compensation claim pending for an amount estimated to be in the vicinity of one million dollars. She said that she was not aware that in December 1998 he was awarded $850,000. She said that it was ridiculous to suggest that one of the reasons that she had made the allegations against the appellant was that she wanted money from his compensation award. A agreed that she had filed a claim for victim’s compensation.

M’s evidence was taken at Calvary Hospital when M was dangerously ill. M’s evidence also included the following. M said that when the appellant first moved in things were fine but then the appellant started to become quite overbearing. She became aware that he was using heroin. One night the appellant went out visiting friends, one of whom was Crystal. He came home and said he had used heroin. From that point on the appellant became more and more aggressive and was aggressively demanding money.

M said that on one occasion Crystal telephoned. She was aware that Crystal was supplying the appellant with heroin. She spoke to Crystal and was absolutely furious with her and told her not to bring the appellant any more heroin and not to come around. M said that she had walked from the kitchen to the bedroom to answer the telephone and was carrying with her, a two-litre container of milk. The next thing she knew was that the appellant had grabbed the back of her hair and was pulling it. He screamed at her that Crystal was the most fantastic and wonderful person. He then grabbed a glass of Sambuca, which had been on the bedside table, and threw it in her face. Then he took hold of the milk and poured it over her until the container was empty. As she turned to walk away the appellant gave her a shove [Count 3: maliciously inflict grievous bodily harm, s 35(b)]. She slipped on the milk and landed on an amplifier that was sitting on the floor. She landed with her ribs in contact with the amplifier. M said that she crawled into the bathroom and got into the bath and washed off the milk. Her body was hurting and she caught a taxi to a 24 hour medical centre at Hurstville where she saw a doctor. She was x-rayed at the premises and those x-rays revealed that she had three broken ribs and a pneumothorax. She was sent to St George Hospital where she remained for three days. She told staff at the hospital that she had tripped on some spilt milk.

One Christmas Day, M gave the appellant a shaving kit and a gold toothpick as she did not have very much money. She said that as they were driving to the reserve or the beach to have a picnic lunch the appellant started hitting her in the face and head and asking her what on earth she thought she was doing buying those stupid presents for him. She said that as she was driving the appellant was hitting her in the face and pulling her hair [Count 5: s 61]. M said that she was petrified. The appellant made her turn around and drive back home. When they got back home the appellant made her rewrap the presents and then write the names of other men with messages such as “I love you”. M said that the appellant physically forced her to do that. He was hitting her and screwing her ears and pulling her hair.

M said that there was a time when the police took action in relation to the AVO. They came to the house and took the appellant away. M said that after the appellant was arrested for breaching the order A was very upset. She was screaming and yelling and saying, “Oh don’t take him away, don’t take him away”. M said that the matter went back to court for breaching the AVO and she lied and said that he had not done it. M started seeing the appellant again and he ended up staying. Later that year the appellant went to his cousin’s engagement party. When the appellant came back from the party M realised that he had been taking heroin again. The appellant sat down with her on the couch and started talking. Then he started hitting her in the face for no reason. He was slapping her about the face and head with an open hand [Count 18: s 61]. M said that the conduct lasted for about an hour.

M said that because of the AVO and because the appellant appeared to be very contrite about what he had done to A at Stockton Beach she suggested that they see a counsellor and talk things through. She said that she did see a counsellor. He asked her about the injury to her face and she said that it was caused by a hockey stick.

M said that in 1997 she did not have any money to spend on A’s birthday. She decided to decorate A’s bedroom and paint an old bookcase. She and the appellant argued about the bookcase. A tin of paint went over and the appellant hit her in the head [Count 19: s 61]. She said that her head must have banged against the wall because later there was blood on the wall. The appellant chased her. He tripped her up and she fell onto the floor. He threw a cigarette butt at her. He was kicking or hitting her. A bit the appellant on the ankle and he went screaming out to the street.

M said that around Christmas 1997 the appellant wanted some computer games which she could not afford. She bought him something else and he “just went off”. He hit her on the forehead very hard [Count 20: s 61].

M was asked about 1998, which was A’s first year of high school and the year that A turned 13. She said that the appellant was getting crazier and crazier. He was allowing A to watch him inject himself with heroin. There were dirty needles and sprays of blood everywhere. She said that the appellant would beat her all the time. M said that eventually she and the appellant ceased living together. She came home from school on the last day of the first week of 1999. The appellant was huddled in the corner hanging out for heroin. He told her to get outside and walk up and down the street. He said that if she did not come back with money for heroin he would kill her [Count 24: s 61]. M said that she went outside and was walking up and down the street. She saw a friend of the appellant, Steve, drive past. He stopped and she told him the story in brief. She asked him for some money to ring her brother-in-law. Steve gave her some change and 25 dollars for A. She went to the phone booth and rang her brother-in-law. She asked him to come and get her. M said that she went back to the house and gathered some bags. Her two nieces arrived and then her sister and brother-in-law. They all went back to Turramurra. After that she and A moved into a caravan park. Later they moved to Dolls Point.

M said that apart from the occasion in January 1997 when she made a statement to the police she did not ever report to the police any of the violence that she suffered at the hands of the appellant.

M was asked whether, apart from the incident in the tent at Stockton Beach, she ever observed any other conduct involving the appellant and A which concerned her. She said that one night she came home from the shops. As she walked past A’s room she looked in and saw A lying on the bed. The appellant was standing over her. M said that it gave her a wrong feeling. The next day she went into A’s room and took a cassette tape out of the player. She said to the appellant, in front of A, that it had been recording. The appellant started chasing her. She went down to the shops and into the delicatessen. The appellant came in and twisted her hand and forced her to walk out of the shop. She grabbed hold of a garbage bin. The appellant bashed her hand, forcing her to let go. Later he punched her very hard in the stomach. M said that at one stage she sought refuge in the real estate agents, premises. M said that she thought that incident occurred when A was in Year 7.

M said that she started making a statement to Detective Rogerson on 12 March 2004. She completed the statement on 15 March 2005. She said that she came to make the statement after A told her that she had been to the police and made a complaint about the appellant. She said that at that time she was seeing someone who said to her, “Look, I think if A has been brave enough to go to the police, I think you should go to the police as well”.

M agreed that she did not go to the police until 12 March 2004. She said that she did not have a copy of the statement A made to the police before she went to the police herself. She said that she did not accompany A to the police at any time. It was suggested to M that she had never, prior to making her deposition, complained about being forced by the appellant to write out Christmas messages to other men. She agreed that perhaps she had not. During her deposition M had said that the appellant had on an occasion sat her down for nearly two hours and kicked her. It was suggested that she had never previously, in any statement, complained about such an episode. She answered, “There were numerous – would be too few to state the number of times that [the appellant] kicked, hit, punched, slapped, smacked, pulled my hair, pulled my ears, twisted my arms. It happened constantly, and for me to relate every single one of those instances constantly, I would have been sitting there for six months saying it”. M agreed that throughout her relationship with the appellant she had been using marijuana. She denied that she had ever used cocaine.

I also make reference to a portion of evidence from Mrs T, M’s older sister. She saw M about four or five times a year during the time that M was in a relationship with the appellant. She said that she did not have much contact or communication with the appellant as she found it very difficult to communicate with him. She said that as a child in primary school A was withdrawn and sullen and not very happy.

Mrs T said that on the occasion that M was hospitalized she went to the hospital. M told her that she had fallen or slid into a stereo and punctured a lung. When she was at the hospital she observed the appellant acting like a child. He was pushing A around the ward in a wheelchair and screaming and laughing like a child. Mrs T said that at the hospital M was deferring to the appellant. At other times M had always treated the appellant almost as if he was a child of hers. Mrs T said that in her presence A related to the appellant like a school friend. Mrs T said that there was no other occasion when she saw injuries on M. She said that on the occasion that she and her then husband went to Connells Point to collect M and A she went into the house. The house was a total mess. There were holes punched in the walls and broken windows. The lounge was upended and the fabric was ripped. There were cats walking through crockery in the kitchen and the whole house was dirty.

Mrs T said that A was a difficult child to communicate with. She said that A was cheeky and rude to her mother and showed her mother no respect.

The above is not a complete summary of the evidence. It is sufficient, however, to appreciate the stark attributes of the delay, the forensic disadvantages, and the inherent problems with easily relying on much of the evidence. The direction to the jury

The primary judge dealt with the question of delay in making complaints and delay in coming to trial together. He said the following: “I come now members of the jury to another matter and it is this question of delay. That is delay in making a complaint, and the delay not only in the complaint, but in the matter actually coming to trial. Well members of the jury the situation in this case is that the sexual assault alleged by [A] is said to have been committed upon her between August 1996 and December 1999. The physical assaults alleged by [M] are said to have been committed upon her between December 1996 and February 1999. The undisputed evidence in the case is that although [M] made a statement to the police about the Stockton Beach incident on 25 January 1997, the day of the alleged incident, and that she made a statutory declaration concerning that matter on 1 March 1997, and made a second statement concerning the matter on 2 August 1997, in which she said she did not then believe that the incident in the tent concerning [A] happened in the way she had earlier reported it to the police. She did not approach the police and make a first draft of a statement alleging a series of physical assaults upon her by the accused until 12 March 2004, and as you have heard that statement was not completed until 15 March 2005. The situation concerning [A] is that she participated in two electronically recorded interviews concerning the events at Stockton Beach, the first on 25 January 1997, the second on 2 August 1997. In the course of that second interview she said that she had never been sexually assaulted. The undisputed evidence is that [A] first went to the police after that on 30 December 2002 when a first draft of her statement was taken from her. Five further drafts were taken over the period 2 December 2002 to 29 September 2005, and on 28 December 2005 her statement was completed and signed. In this case both [M] and [A] were questioned by Mr Fliece as to why they had not complained prior to going to the police. [A] said that she had mentioned the assault to school friends many years previously, but not in any detail at all. In the case of [A], that being a case where the matters of which she complains are all assaults of a sexual nature, I am required to give you certain directions. It is Mr Fliece’s submission that [A]’s delay in making a complaint, to whom she might reasonably have been expected to complain, is inconsistent with the conduct of a truthful person who has been sexually assaulted. It is Mr Fliece’s submission that she had very many opportunities of complaining to the police and to officers from DOCS and to family and friends, but did not avail herself of those opportunities. It is Mr Fliece’s submission that you should therefore regard [A]’s evidence that she was sexually assaulted as false. Well members of the jury that submission is necessarily a matter that you should consider. However I must warn you that delay in making a complaint, or absence of a complaint, does not necessarily indicate that the evidence of the complainant, in this case [A], is false. It may indicate fabrication on the part of the complainant, but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted hesitates in making a complaint. You may recall that when [A] was being cross-examined extracts from her statement were read to her where she said that at Stockton she was scared of the police and did not want to tell them anything and that she did not want to get into trouble over it and she did not want [the appellant] or her mother to get into trouble. Members of the jury having said that I direct you that you are entitled to take into account [A]’s delay in complaining when assessing her credibility. What decision you reach about it (sic) matter entirely for you, but you are entitled to take that delay into account when assessing her credibility. Now members of the jury it is important that you appreciate fully the effects of delay on the ability of the accused to defend himself by testing prosecution evidence or adducing evidence in his own case to establish a reasonable doubt about his guilt. The delay I refer to is not only the delay in making a complaint, but also the delay in the matter coming to trial, none of which is the fault of the accused. In this regard I refer to the following specific difficulties encountered by the accused. First, the concession made by Detective Rogerson, that she made no effort to locate witnesses who may have witnessed the delicatessen incident because it happened so long ago. It follows, the defence submits, that the accused himself would not have been able to locate any such witnesses. Secondly, the difficulty that anyone would now have in locating possible witnesses to the alleged incidents in the swimming pool at Newcastle. Third, the same difficulty in relation to the alleged incident at Green Park, and fourth, that because of the uncertainty of dates in the indictment, that uncertainty having been brought about by delay, the accused has been denied the opportunity of adducing evidence to the effect that he was not present at the time and place alleged in the charges. In those circumstances, members of the jury, I direct you that the accused has suffered a significant forensic disadvantage and that there is need for caution in determining whether to accept or give any weight to the reasons given by [A] as to why she delayed in complaining until 31 October. However, whatever your view is about her reasons for delay, the fact is that her delay, together with the further delay in the matter coming to trial, requires additional care by you in evaluating the Crown evidence. Well, members of the jury, as the assaults complained of by [M] are not sexual assaults I am not required by law to give you the same directions in relation to delay in making a complaint as I have given you in respect of [A]. Nevertheless it is necessary that you bear in mind that the same principles apply. It is apparent that by reason of [M]’s delay in approaching the police and the further delay in the matters coming to trial that the accused has suffered a significant disadvantage.”

There are a number of respects in which the above falls short of a Longman direction. First, rather than make clear that the direction was the authoritative warning of the Court from the accumulated experience of the courts, his Honour said “I am required to give you certain directions”. This ran the risk of conveying to the jury that the direction was a matter of legal formality.

Secondly, whilst his Honour used the word “warn”, this was in the context of the warning that delay in making a complaint did not necessarily indicate that it was false. This would tend to undermine the clarity of the Longman warning that it is dangerous to convict on such evidence, without the closest scrutiny.

Thirdly, whilst identifying some of the appellant’s forensic disadvantages, the direction was inadequate to amount to a warning that it would be dangerous to convict him without great care in scrutinising the evidence. “Caution” and “additional care” were said to be necessary. The direction did not amount to a warning.

The words used by the primary judge may well satisfy the description of Sully J in BWT of “practical and sensible” or “brief and temperate”, but they did not satisfy the clarity and cogency of the warning required by Longman.

The Crown (Mr Ingram SC) did not (entirely properly and correctly, in my respectful view) seek to argue that the convictions for the non-sexual offences for violence against the mother could stand if there was material error in the direction concerning the sexual offences against the daughter.

Nor did the Crown argue that the proviso could save the convictions if there was a material misdirection considering Longman.

These are my reasons for making the orders on 28 June 2011.

HIDDEN J: I agree with Allsop P.

HALL J: I agree with Allsop P.