7. Directions about unreliable evidence
Updates and background for this project (Digest)
INTRODUCTION
7.1 This chapter considers the directions that judges must or must not give about “unreliable” evidence in two broad categories: first, directions in relation to those types of unreliable evidence that are now principally dealt with by the provisions of the Evidence Act 1995 (NSW) such as evidence of prison informers and accomplices, confessions and admissions and identification evidence; secondly, those that principally relate to sexual assault offences, such as uncorroborated evidence of complainants and evidence in cases where there has been a delay in bringing a complaint.
Statutory regulation of warnings
7.2 Prior to the Evidence Act 1995 (NSW), case law established the need for judicial warnings or comment in a number of areas – chiefly where evidence given in certain circumstances was seen as unreliable unless corroborated. The judicial warnings in these areas were traditionally accompanied by the instruction that it was “dangerous to convict” on such evidence unless the jury, having scrutinised it with great care, was satisfied of its truth. The use of such a formulation was open to criticism because some jurors may have taken it as an implied invitation to acquit.
7.3 In 1985, the Australian Law Reform Commission observed that the law with regard to warnings was “too rigid and technical”, and did not serve its purpose of minimising the risk of wrongful convictions. The ALRC, therefore, proposed the existing requirements with respect to corroboration evidence be abolished and only retained in certain circumstances.1 The Evidence Act accordingly has rendered the requirement of corroboration unnecessary except in relation to perjury and related offences.2
7.4 The Evidence Act 1995 (NSW) now deals with such issues by requiring a warning for evidence “of a kind that may be unreliable” in jury trials where a party requests it, unless the judge considers there are “good reasons” for not doing so.3 The Act provides a list of the types of evidence that may be considered unreliable:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b) identification evidence,
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
(e) evidence given in a criminal proceeding by a witness who is a prison informer,
(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant...
The list is not exhaustive and the section expressly states that it “does not affect any other power of the judge to give a warning to, or to inform, the jury”.4
7.5 Under this provision, the focus is now on the reliability of the evidence in question and the factors that make it unreliable. The Evidence Act requires that the judge, in delivering the warning requested by a party to the trial:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.5
7.6 The recent High Court case of Mahmood6 illustrates the point that warnings may still be required in the circumstances of a particular case. In that case, the prosecutor remarked on the “cold-blooded and clinical” demeanour of the accused in a portion of a taped record of a visit to the crime scene a week after the alleged events, when the portion of the taped record had been admitted for another purpose, namely, to explain the presence of blood on the accused’s clothing. It was common ground on the appeal that the remainder of the footage that was not admitted did not support the prosecutor’s observation. The trial judge merely raised concerns about the prosecutor introducing the question of demeanour in the circumstances, and had instructed the jury that they might give the evidence of demeanour on the tape less weight than other evidence of the accused’s emotional state that was closer to the time of the alleged offence. The High Court held that a direction was required that would overcome the “prejudicial effect” of the prosecutor’s remarks in the closing address and concluded that:
It was necessary for the jury to be directed, in unequivocal terms, that they knew so little of the context in which the segment of the video recording appeared that they could not safely draw the inference that the prosecutor had invited them to draw, that is to say, that they should ignore the prosecutor’s invitation and remarks.7
7.7 The Evidence Act also states that the judge need not use any particular form of words in delivering the warning.8 It is therefore no longer necessary to say that it is “dangerous to convict” on uncorroborated evidence nor to give a direction about the absence of corroboration.9 The Court of Criminal Appeal has actively discouraged the use of the formula:
The formulation ‘dangerous to convict’ is a powerful direction, capable of being understood, and in my opinion, is frequently understood, by a jury as, in effect, a direction by the judge to acquit the accused. It is a formulation that is best avoided, save in exceptional circumstances.10
7.8 However, the Court of Criminal Appeal has also observed that there may be circumstances where the judge can give a warning that it would be dangerous to convict on the uncorroborated evidence of an accomplice “if satisfied that it is necessary in the interests of justice to do so in the particular case”, but “the judge is never under a duty to do so”.11 The High Court has made it clear that the common law will continue to require a warning where there would otherwise be a perceptible risk of a miscarriage of justice.12
7.9 In some cases, even where warnings are expressly prohibited,13 the line to be drawn between comments and warnings can be fine, and highlights the problems involved in altering trial practice by legislation where the judge retains the discretion to ensure a fair trail.
7.10 For example, the High Court has noted the possibility in cases regarding the uncorroborated evidence of sexual assault complainants that, even where a warning has been prohibited by statute, the complainant’s evidence may still be “subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only”.14 The judges did, however, qualify this position by stating:
The judge’s discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the [dangerous to convict] warning.15
What was still permitted was a comment in relation to the evidence of the particular complainant in the case being tried. This has been a cause of continuing debate and amendment to the law.16
7.11 There may, therefore, remain occasions, particularly in sexual assault cases, where directions will need to be given in similar terms to those which in the past have been productive of an inordinate number of appeals.17
PRISON INFORMERS
7.12 The Evidence Act 1995 (NSW) identifies evidence of prison informers as being a type of evidence that may be unreliable.18 A prisoner’s evidence of an accused’s oral confession made while they were incarcerated together has long been recognised as unreliable. Reasons given for its unreliability include:19
- such evidence is easily concocted;
- the accused will generally be denied an opportunity to corroborate his or her denial of the confession;
- prison informers are generally of bad character and their evidence is, therefore, unreliable;
- prison informers may fabricate evidence in anticipation of benefits including favourable treatment within the prison environment;
- prison informers will be affected by the values and culture of prison society.
7.13 Despite there being no rule of law that a judge must always give a warning in relation to the evidence of a prison informer, there are only exceptional cases where it would not be required.20
7.14 The exact form of the warning will depend on the circumstances of the case. The High Court has noted that the fact that an accused is in custody usually means that there will be sufficient evidence to justify his or her detention on remand which can corroborate the informer’s evidence. Prison informers are generally taken to be aware of this state of affairs. It is therefore accepted that it is insufficient for a judge merely to warn the jury not to rely on the evidence of a prison informer unless other evidence corroborates it. The warning should draw attention to such matters as the circumstances that make the informer’s evidence unreliable and the need for evidence to corroborate the making of the confession itself.21
7.15 Following the High Court’s decision in R v Pollitt, Justice Hunt set out some of the matters that should be included in a warning on the evidence of a prison informer:22
(a) that the experience of the courts over the years has demonstrated that the evidence of such witnesses is potentially unreliable, together with the explanation as to why that is so;
(b) that it is for that reason necessary to scrutinise the evidence of the particular witness in question with great care;
(c) that, in the absence of substantial confirmation provided by independent evidence that the confession was in fact made, it is dangerous23 to convict upon the evidence of that witness;
(d) that such independent evidence is unlikely to be provided by a fellow prisoner, because he is likely to be motivated to concoct his evidence for the same reasons; and
(e) that, having regard to the potential unreliability of the evidence, there is a risk of a miscarriage of justice if too much importance is attached to it.
7.16 Arguably, a judge should give directions about the use of evidence from a prison informer because the issues relating to the reliability of such evidence are generally not taken to be within the experience of ordinary jurors. Some form of explanation is required so that jurors can assess the evidence properly.
ISSUE 7.1
(1) Are warnings about the use of a prison informer’s evidence necessary?
(2) If so, in what circumstances should a judge deliver them?
ACCOMPLICES
7.17 At common law, a judge in a criminal trial was required to warn the jury that it was dangerous to convict on the uncorroborated evidence of an accomplice to the alleged criminal conduct.24 In giving such a warning, the judge was required to explain what was meant by corroboration and direct the jury’s attention to evidence that may corroborate what the accomplice has said.25 Defence counsel, therefore, did not always entirely welcome accomplice warnings, since the recitation of evidence that could have corroborated what the accomplice said could strengthen the prosecution’s case.26
7.18 The Evidence Act now provides that a judge may give a warning about evidence that may be unreliable where it has been given by a person “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”.27
7.19 The chief reason for the warning is said to be “the natural tendency of an accomplice to minimise the accomplice’s role in a criminal episode, and to exaggerate the role of others, including the accused”.28 This tendency may even go so far as the witness implicating a person who is entirely innocent of the offence charged.29 There is an even greater danger where, as a result of assistance provided to law enforcement authorities, the accomplice has received an immunity from prosecution or a reduced sentence,30 with the consequent risk of the benefit being lost if he or she fails to give evidence. It has been suggested that juries would not, generally, be aware of such circumstances. There is a well-established requirement that the judge direct the jury on the significance of a grant of immunity to a witness in order to assist the jury in evaluating the reliability of that witness’s evidence.31 This is consistent with the requirement in the Evidence Act that the judge inform the jury of matters that may cause the evidence of a witness to be unreliable.32
ISSUE 7.2
(1) Is it necessary for judges to give a warning about the use of evidence of people reasonably supposed to have been criminally concerned in the events giving rise to the proceedings against the accused?
(2) If so, in what circumstances should it be given, and how should such a warning be phrased?
CONFESSIONS AND ADMISSIONS
7.20 An admission is a statement that an accused has made prior to the current proceedings and that is against his or her interest.33 The reception of admissions into evidence has been the subject of some controversy, and their treatment will depend on the circumstances of the case.34
7.21 A confession is an admission by the accused of guilt of the offence charged. A confession, which may be may be made to any person at any time, is generally admissible as evidence, but the question of weight is one for the jury.35 Generally the courts have considered that evidence of a confession does not require a specific warning.
7.22 “Admission” is broadly defined under the Evidence Act 1995 (NSW).36 However, the need for a warning, even under the statutory provisions, will depend on the circumstances of the case,37 including whether the accused disputes the admission,38 whether there are good reasons for not providing a warning,39 or whether, regardless of the category of witness, the evidence is of a “kind that may be unreliable”.40
7.23 Much of the discussion of confessions is set in the context of the former practice of some investigating police to fabricate confessions. The obligatory use of recording equipment has overcome some of this problem so that a judge no longer needs to advise a jury to be cautious before convicting on disputed police evidence of an oral confession without corroborating independent evidence.41
7.24 However, there are also other circumstances where the defence may raise the unreliability of a confession. They include false confessions voluntarily made, for example, to protect the actual perpetrator of the crime, to achieve notoriety, or to assuage feelings of guilt relating to the victim and the events giving rise to the offence; false confessions made to achieve short-term relief regardless of the long-term consequences, for example, to obtain release from immediate confinement, to escape a stressful situation or because of an inducement held out by the investigating authorities; and false confessions made because the accused has become wrongly convinced of his or her own guilt for a number of possible reasons including mental illness, and the presentation of false evidence by the investigating authorities.42
IDENTIFICATION EVIDENCE
7.25 There are different types of identification evidence, including visual evidence identifying a person by way of photographs, identification parade or other means, identification of the voice of a person and identification of objects associated with a person such as motor vehicles, articles of clothing or weapons. The most common form of identification evidence is that which deals with the visual identification of a person, usually the accused.
7.26 The need for great care in approaching such evidence is reinforced by examples of wrongful convictions based on identification evidence arising from the inaccurate testimony of apparently honest witnesses.43
7.27 The Evidence Act 1995 (NSW) requires the judge, when he or she has admitted identification evidence relating to the resemblance of the defendant, to inform the jury:
The Act also states that “it is not necessary that a particular form of words be used in so informing the jury”.45 The High Court has held that the warning does not have to be given if the identification evidence is not disputed.46
7.28 This provision is limited to evidence relating to the resemblance of a defendant47 and does not extend to evidence relating to inanimate objects or to “negative” (or “exculpatory”) identification evidence.48 These are covered by the more general provisions relating to evidence that may be unreliable contained in s 165(1) of the Evidence Act 1995 (NSW).49
7.29 The NSW Court of Criminal Appeal has extended the need for a warning to cases involving the identification of inanimate objects in appropriate cases, for example, a motor vehicle, clothing or a weapon. Such a warning would be necessary where the identification of the object is the “critical issue” determining the guilt of the accused.50
7.30 The question has arisen as to what warning, if any, should be given in relation to identification from video or photographic evidence where the jury is called upon to make its own assessment of the reliability of the evidence, for example, where the quality of the image is poor or otherwise questionable.51 In such cases the difficulties involved in using this sort of footage are, on one view, “obvious to any layman” and can be said to arise for people in the ordinary course of life. They do not, therefore, require a specific comment or warning of the sort required where an eyewitness gives identification evidence.52 The English Court of Appeal has observed that:
for example, the jury does not need to be told that the photograph is of good quality or poor; nor whether the person alleged to have been the defendant is shown in close-up or was distant from the camera, or was alone or part of a crowd. Some things are obvious from the photograph itself ...53
ISSUE 7.4
(1) In what circumstances should warnings be given about the use of identification evidence?
(2) Should warnings about the use of identification evidence extend to relevant observations about matters that would be considered obvious to any jury?
UNCORROBORATED EVIDENCE
7.31 There used to be a long-standing common law rule requiring trial judges in all sexual assault cases to warn the jury that it was dangerous to convict the accused upon the uncorroborated testimony of the complainant.54 In 1981, legislation was passed abolishing the requirement to give a warning that it is unsafe to convict a person on the uncorroborated evidence of the complainant in trials for sexual offences.55
7.32 In R v Murray,56 the NSW Court of Criminal Appeal held that this legislation does not prevent trial judges from directing the jury on the necessity to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. The Court held that, in serious offences, it is always open to the judge to direct that, where there is only one witness asserting the commission of the crime, “the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in”.57
7.33 The abolition of the requirement for the giving of a warning about uncorroborated evidence is no longer confined to sexual offences. It has been extended to all offences by s 164(3) of the Evidence Act 1995 (NSW) which provides:
7.34 The new provisions have not discouraged trial judges from giving the Murray direction. A study found that in 80% of the sexual assault trials examined in NSW in 1994-1995 the judge gave some form of corroboration warning, including the old-style warning that it is unsafe or dangerous to convict on the uncorroborated evidence of the witness. The study found that the new-style warning — the Murray direction — was given in 59% of sexual assault trials.58
Criticisms
7.35 The Murray direction has been criticised as superfluous since the judge has already directed the jury not to convict unless they are satisfied of the guilt of the accused beyond reasonable doubt. One commentator questioned whether jurors are “in need of a warning of the patently obvious, particularly in view of the avalanche of directions now often required in a sexual assault trial”.59 The commentator described corroboration warnings like the Murray direction as “either superfluous where the complainant’s unreliability was obvious and useless where the complainant was a skilled and convincing liar”.60
7.36 There is also a concern that the Murray direction, by emphasising the absence of corroboration evidence and the need to “scrutinise” the evidence of the complainant “with great care”, may be misinterpreted by juries as a suggestion to acquit.61
Legislative reform
7.37 In 2006, the NSW Parliament passed legislation inserting s 294AA into the Criminal Procedure Act 1986 (NSW). The new section provides, in relation to certain prescribed sexual offence62 proceedings:
7.38 The Second Reading Speech that introduced the amendment adopted the reasoning of the Criminal Justice Sexual Offence Taskforce that the Murray direction “was unnecessary, as the directions on reasonable doubt were sufficient to protect the accused”.64 This implied that the purpose of the amendment is to prevent judges from giving the Murray direction. This position is also consistent with the recommendations of a parliamentary committee that the Criminal Procedure Act 1986 (NSW) be amended to provide that the Murray warning no longer be given in child sexual assault proceedings.65
7.39 There are, however, doubts whether the text of the amendment would achieve any such intention.66 The Murray direction deals with the need for the jury to scrutinise with great care the evidence of the complainant, where he or she is the sole witness asserting the commission of the crime. Section 294AA(1), on the other hand, does not, by its terms, deal with evidence in the context contemplated in Murray, but is rather directed at warnings that refer to complainants of sexual offences as an unreliable class of witnesses. Further, the Murray direction does not warn juries about “the danger of convicting on the uncorroborated evidence of any complainant”, which is what s 294AA(2) appears to be proscribing. Hence, it is unlikely that s 294AA will prevent trial judges from giving the Murray direction.
ISSUE 7.5
(1) Should the Murray direction be abolished or should it be confined to cases where there is specific evidence indicating that the complainant’s uncorroborated evidence may be unreliable?
(2) In either case, how should legislation be drafted to achieve this?
DELAY AND FORENSIC DISADVANTAGE
Sexual assault cases
7.40 In Longman v The Queen,67 a case where the complainant alleged that her step-father sexually assaulted her when she was a child, the High Court held:
The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.68
7.41 Counsel for the defendant had asked the trial judge to give the jury a warning about acting on the uncorroborated evidence of the complainant. The judge refused to give such warning, relying on s 36BE of the Evidence Act 1906 (WA), which abolished the corroboration warning requirements in relation to sexual assault offences, and prohibited judges from giving such warnings unless justified in the circumstances.
7.42 The High Court held that the section in question dispensed only with the requirement to warn the jury of a general danger of acting on the uncorroborated evidence of complainants in sexual offences as a class. It did not, however, affect the requirement for a judge to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.
7.43 The majority judgment of Justices Brennan, Dawson and Toohey stated that a warning in terms quoted above was required in this particular case because of the defendant’s loss of the means of testing the complainant’s allegations. They reasoned that, had the allegations been made soon after the alleged events, it would have been possible to explore in detail the circumstances surrounding those events and to present evidence throwing doubt on the complainant’s story or confirming the defendant’s denial.69
7.44 Justices Deane and McHugh identified other reasons why the warning was needed in this case, including “the possibility of child fantasy about sexual matters”,70 and the fallibility of human recollection, especially of events which occurred in childhood.71
7.45 Subsequently, the High Court in Crampton v The Queen72 emphasised the need for the direction that arose from Longman to be given unequivocally as a warning. The case involved a 19-year delay in the complaint. In her summing-up, the trial judge gave directions to the effect that a late complaint involved potential disadvantages to the accused. This was followed by an observation that the accused’s defence consisted of denial. In her redirections made on request by the defence counsel, the judge said that the very long delay in the complaint was a matter the jury should consider with all the other circumstances of the case.
7.46 The High Court held that the trial judge’s reference to the accused’s denial of the complainant’s allegations diminished her directions on delay, which the High Court characterised as a mere caution and not a warning. The Court said that the judge should have given an “unmistakable and firm” warning, and in terms similar to those suggested in Longman, that, because of the passage of so many years, it would be dangerous to convict on the complainant’s evidence alone without the closest scrutiny of the complainant’s evidence, subject to appropriate adaptations to the circumstances of the case.73
7.47 In Doggett v The Queen,74 the High Court extended the application of the Longman warning to cases where the prosecution has presented evidence that corroborates the complainant’s testimony.75
Criticisms
7.48 The Longman warning has been the subject of a number of criticisms, including the following.
7.49 First, the warning is said to have given rise to an irrebuttable presumption that delay in the complaint prevents the accused from adequately testing the complainant’s evidence. The warning has an underlying assumption that the accused might have called relevant evidence had there been a contemporaneity between the alleged offence and the complaint or charge.76
7.50 It is argued that this assumption loses its force if the accused was not prejudiced in circumstances where he or she is able to call evidence in rebuttal, or where the absence of contemporaneity did not in any way deprive him or her of such an opportunity. The latter circumstance might arise, for example, where the complaint related to a time and place where the accused was in fact living alone with the complainant, and in circumstances where, no matter what inquiries were made, the case became one of word against word, such that rebuttal evidence could never have been obtained.77
7.51 Secondly, it is contended that the Longman warning has effectively reinstated the false stereotypes about the unreliability of complainants in sexual offences cases.78
7.52 Thirdly, the use of the phrase “unsafe/dangerous to convict” has been criticised as an encroachment on the jury’s fact-finding role. It is claimed that there is a risk that the jury will interpret the phrase as a suggestion or encouragement by the judge to acquit the accused.79
7.53 While there are passages in some cases to the effect that the Longman warning does not require the use of particular words,80 and that a direction which does not contain the words “dangerous” or “unsafe” to convict is not necessarily inadequate,81 the weight of authority appears to be that the use of the words “dangerous/unsafe to convict” will be essential in most cases of delay.82
7.54 Finally, there is a lack of clarity as to what length of delay in making a complaint will be considered “substantial” so as to necessitate the delivery of the warning. The Longman case itself involved a time lapse of more than 20 years between the alleged offences and complaint.
7.55 There have been cases where courts have held that the giving of the Longman warning to the jury was unnecessary, since the delay in complaint was not so substantial as to give rise to forensic disadvantage to the accused.83 However, there are also cases where the giving of the warning was held to be appropriate in circumstances involving much shorter delays than was present in the Longman case: three years in one case,84 and only a few months in another case.85
7.56 One judge made the observation that, while it is clear that a delay in the order of 20 years would require a Longman warning, it remains unclear from the relevant High Court cases what time lapse, if any, would be regarded as not calling for a Longman direction. He concluded that “the only prudent approach of a trial judge is one that regards any delay between offence and complaint as sufficient to raise for consideration the need for a Longman direction”.86
Legislative reform
7.57 A number of law reform agencies have recommended the reform of the Longman warning.87 The latest such call came from the the Criminal Justice Sexual Offence Taskforce, which was established by the NSW Attorney General to examine issues surrounding sexual assault.88
7.58 The Taskforce recommended that the Longman warning be given only upon the request of a party and where the court is satisfied that there is evidence that the accused had suffered a specific forensic disadvantage due to the delay. Further, it recommended that there should be no requirement that a particular form of words be used, and that the words “dangerous and unsafe to convict” need not be used to give effect to the warning, or, as a secondary recommendation, that the words “dangerous and unsafe to convict” should not be used.89
7.59 In 2006, the NSW Parliament implemented the recommendations of the Taskforce by amending s 294 of the Criminal Procedure Act 1986 (NSW). Subsection (1) outlines the application of the section, thus:
7.60 The amendments adopted to address issues relating to the Longman warning state:
(3) However, if:
(a) the delay in making a complaint by the person on whom the offence is alleged to have been committed is significant, and
(b) the Judge is satisfied that the person on trial for the offence has suffered a significant forensic disadvantage caused by that delay, and
the Judge may inform the jury (but only if a party to the proceedings so requests) of the nature of the disadvantage and of the need for caution in determining whether to accept, or give any weight to, the evidence or question referred to in subsection (1).
(4) For the purposes of subsection (3)(b), the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:
(5) The mere passage of time is not in itself to be regarded as establishing a significant forensic disadvantage.90
7.61 One issue that arises from the amendments relates to the content of the direction that judges would be allowed to give. In particular, it remains unclear whether trial judges are prevented from using the words “dangerous/unsafe to convict” in the directions that can be made pursuant to the amendments.
7.62 The drafting of s 294(3) has also been criticised for being confusing about what trial judges may now tell the jury. While allowing the judge to inform the jury of the nature of the significant forensic disadvantage is desirable, the subsection by its terms:
Other cases
7.63 The question of delay and its impact on the conduct of the defence occurs most frequently in the context of the trial of sexual offences. However, as Chief Justice Spigelman has observed, sexual offence cases are only one example of situations where delay can affect the conduct of the defence.92 Delay in bringing a matter to trial may arise not only because of a complainant’s delay in making a complaint, but also because of a key witness’s delay in coming forward or even a more general delay in bringing the matter to trial caused by the volume of pending cases. For example, the Tasmanian Court of Criminal Appeal has held that a warning about delay is necessary where there has been a lengthy delay before a trial for armed robbery.93 Judicial directions relating to delay in such cases are not subject to the statutory requirements imposed in the case of delayed complaint in sexual offence matters.94
DELAY AND CREDIBILITY
7.64 Courts can direct juries that delay or absence of complaint may be used as a factor in assessing the complainant’s credibility. Such a direction is based on Kilby v The Queen,95 where the High Court ruled that, while a failure to make a complaint at the earliest opportunity is not evidence of the complainant’s consent to the alleged sexual assault, it is nevertheless relevant to the complainant’s credibility and a fact to be considered by the jury in assessing the consistency of the complainant’s evidence.
7.65 Subsequent to the Kilby decision, various Australian jurisdictions enacted legislation requiring the judge to warn the jury that a delay in making a complaint of sexual assault does not necessarily mean that the allegation is false.96 In NSW, if evidence is given or a question is asked of a witness about an absence of or delay in the complaint in sexual offence proceedings, the judge:
In Crofts v The Queen,98 the High Court held that the Victorian equivalent provision99 is not intended to overturn the Kilby doctrine and therefore does not preclude a judge from commenting that delay in complaint of sexual assault may affect the credibility of the complainant.100
7.66 In the result, where a trial judge gives the jury the statutory direction that a delay in complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim of sexual assault hesitates to complain, the judge should also consider giving the direction that delay in complaint may be taken into account in evaluating the evidence of the complainant, and in determining whether or not to believe the complainant.
7.67 The Court qualified its ruling in two ways. First, the Kilby direction is not required where the peculiar facts of the case do not require such a warning to restore a balance of fairness. Secondly, the warning must not be expressed in terms that suggest a stereotyped view that sexual assault complainants are unreliable or that delay in making a complaint is invariably a sign that the complainant’s evidence is false.101
Criticisms
7.68 The first criticism of the decision in Crofts is that the delivery to the jury of two seemingly contradictory directions may render both of them redundant and carries a real risk of confusing the jury.102
7.69 The Crofts decision has also been criticised on the basis that it preserves the assumption that delay in a complaint for sexual assault affects the credibility of the complainant because of the traditional notion, which is acknowledged at common law, that a genuine sexual assault victim will make a “hue and cry” immediately after the assault.103
7.70 This assumption is not in accord with the current body of research showing that it is common for sexual assault victims not to complain immediately. For example, the Victorian Law Reform Commission (“VLRC”) conducted an empirical study covering sexual assault cases in Victoria between 1994 and 2002 which found that, although over half the reports of rape were made within a week, a significant number — 11.5% — were made five years after the alleged event. Delays in reporting occurred more frequently and for a longer period in cases of incest and sexual penetration of a child under 16 years; only 16% of such offences were reported within a week, 41% were reported at least two years after the offence, and over 30% were reported more than five years later.104
7.71 The results of the VLRC study are in line with international studies on child sexual assault victims. A study which reviewed data from several international studies found, among other things, that about 60% to 70% of people who were sexually abused when they were young had not told anyone about the abuse when they were children.105 This implies that a large majority of those who participated in these studies did not disclose the fact that they were sexually abused as children until they reached adulthood.
7.72 The reasons for delay in reporting sexual assaults include fear of reprisal from or even the desire to protect the assailant, who the victim usually knows and trusts. Other reasons include the perception that the police would not do anything; fears of not being believed by the police or other sections of the justice system; and apprehensions about the legal process.106
7.73 Some judges, perhaps due to better awareness of the nature and effects of sexual assaults, have questioned the validity of the underlying assumption in Crofts. One judge, for example, made the following remarks:
I do not understand how any inference can legitimately be drawn about the veracity of a young child simply from the fact that the child does not complain about sexual misconduct at the first reasonable opportunity especially where that conduct is perpetrated by a close family member. Certainly courts should not be encouraging such a line of reasoning on the basis of some supposed collective experience or understanding of the behaviour of children in such a situation. Further, I believe that there is very good reason to doubt that the Kilby direction accords with a more modern, if not more enlightened, understanding of the impact of sexual assaults upon adult victims. 107
7.74 A final concern relating to the Crofts direction is that it is currently being given as a matter of course regardless of the presence of good reasons for the delay in complaint, and even where there was in fact no delay in complaint.108 It has been suggested that judges give the direction only in “those cases where there is at least a prima facie basis for suggesting that the delay was a sign of a want of credibility, for example where there is an absence of any evidence suggesting a reason for it”.109
Legislative reform
7.75 Based on the recommendation of the NSW Criminal Justice Sexual Offence Taskforce,110 the NSW Parliament passed legislation adding a new provision to s 294(2) of the Criminal Procedure Act 1986 (NSW) which states that a judge:
must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.111
This new provision arguably does no more than reiterate existing law. In Crofts, the High Court made it quite clear that judges need not give a Kilby warning as a balancing direction to the statutory directions on delay “where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness”.112 Hence, the decision was premised upon the assumption that the balancing direction was required by the particular circumstances of the case and not by considerations at large. It may, therefore, be claimed that the new statutory provision is simply a reiteration of the High Court’s ruling in Crofts.
7.76 On the other hand, it may be argued that, by reinforcing the need for “sufficient evidence” before a Crofts direction is to be given, the new statutory provision seeks to prevent judges from indiscriminately giving the Crofts direction for the main purpose of “appeal-proofing” the case, particularly in cases where there was in fact no delay in the complaint, or where there are indisputably good reasons for a delay. It remains to be seen how courts will construe the provision, in particular the meaning of “sufficient evidence”, so as to justify the giving of a Crofts direction.113
Footnotes
1. Australian Law Reform Commission, Evidence, Report 26 (1985) vol 1, [1015], [1016].
2. Evidence Act 1995 (NSW) s 164(1) and (2).
3. Evidence Act 1995 (NSW) s 165(2) and (3).
4. Evidence Act 1995 (NSW) s 165(5).
5. Evidence Act 1995 (NSW) s 165(2).
6. Mahmood v Western Australia (2008) 82 ALJR 372; [2008] HCA 1.
7. Mahmood v Western Australia (2008) 82 ALJR 372; [2008] HCA 1, [18].
8. Evidence Act 1995 (NSW) s 165(4).
9. Evidence Act 1995 (NSW) s 164(3). See Conway v The Queen (2002) 209 CLR 203, [53]; Kanaan v R [2006] NSWCCA 109, [214]–[217].
10. Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192, [19] (Spigelman CJ).
11. Kanaan v R [2006] NSWCCA 109, [217].
12. Tully v The Queen (2006) 230 CLR 234, [51], [89]-[92], [158]-[161].
13. See, eg, para 7.37.
14. Longman v The Queen (1989) 168 CLR 79, 87. See also R v GPP (2001) 129 A Crim R 1; [2001] NSWCCA 493, [23]-[34].
15. Longman v The Queen (1989) 168 CLR 79, 87-88.
16. See para 7.38-7.39.
17. For a recent analysis of the circumstances which will require a warning in relation to the evidence in this type of case, see Wade v R (2006) 164 A Crim R 583; [2006] NSWCCA 295; and KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165, [9]-[10] (dangerous to convict because of delay).
18. Evidence Act 1995 (NSW) s 165(1)(e).
19. Pollitt v The Queen (1992) 174 CLR 558, 586 (Deane J), 614 (McHugh J). See also R v Clough (1992) 28 NSWLR 396, 405.
20. Pollitt v The Queen (1992) 174 CLR 558, 599 (Dawson and Gaudron JJ), 605 (Toohey J).
21. Pollitt v The Queen (1992) 174 CLR 558, 588 (Deane J), 601 (Dawson and Gaudron JJ), 606 (Toohey J), 616-617 (McHugh J). See also R v Clough (1992) 28 NSWLR 396, 405-406.
22. R v Clough (1992) 28 NSWLR 396, 406.
23. The reference to “dangerous” to convict would no longer be appropriate since the passing of the Evidence Act 1995 (NSW) s 165. See R v Robinson (2006) 162 A Crim R 88; [2006] NSWCCA 192, [19]
24. Davies v Director of Public Prosecutions [1954] AC 378, 399; Jenkins v The Queen (2004) 79 ALJR 252, 257. A model direction following the old form of warning is provided in the Bench Book to cover the exceptional cases where the judge considers that a warning that it is dangerous to convict on uncorroborated evidence is still required: Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [4-365]. See also R v Chen (2002) 130 A Crim R 300; [2002] NSWCCA 174, [58].
25. Jenkins v The Queen (2004) 79 ALJR 252, [27].
26. Jenkins v The Queen (2004) 79 ALJR 252, [29]. See also Conway v The Queen (2002) 209 CLR 203, [56].
27. Evidence Act 1995 (NSW) s 165(1)(d). The Court of Criminal Appeal suggested that, in giving a warning about “accomplice” evidence, a judge should avoid using the term “accomplice”. This is because the use of the term may give the impression that the judge believes that the witness is an accomplice to the accused and, therefore, that the accused is guilty of the offence charged: R v Stewart (2001) 52 NSWLR 301, [21] (Spigelman CJ), [126] (Howie J); R v Cornelissen [2004] NSWCCA 449, [117]. This position is reflected in Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [4-355]. See also Kanaan v R [2006] NSWCCA 109, [217].
28. Jenkins v The Queen (2004) 79 ALJR 252, [30].
29. R v Stewart (2001) 52 NSWLR 301, [127].
30. R v Stewart (2001) 52 NSWLR 301, [149], [151]-[154].
31. R v Chai (1992) 27 NSWLR 153, 176-177; R v Checconi (1988) 34 A Crim R 160, 170-172.
32. Evidence Act 1995 (NSW) s 165(2)(b).
33. See Evidence Act 1995 (NSW) Dictionary Part 1.
34. Mule v The Queen (2005) 79 ALJR 1573; [2005] HCA 49, [21], [23].
35. Ross v The King (1922) 30 CLR 246, 254-255; Burns v The Queen (1975) 132 CLR 258, 261.
36. Evidence Act 1995 (NSW) s 165(1)(a).
37. R v Fowler (2003) 151 A Crim R 166, [178]-[188].
38. R v Reardon (2002) 186 FLR 1; [2002] NSWCCA 203, [136].
39. Evidence Act 1995 (NSW) s 165(3).
40. R v Clark (2001) 123 A Crim R 506, [70]-[73].
41. See Carr v The Queen (1988) 165 CLR 314, 324 (Brennan J).
42. See S M Kassin, et al, Police-induced Confessions: Risk Factors and Recommendations, American Psychology-Law Society, Proposed White Paper (2008) 34-36.
43. See R v Finn (1988) 34 A Crim R 425, 430 and the list of examples provided by Kirby P in Varley v Attorney General (NSW) (1987) 8 NSWLR 30, 40. See also P Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976) ch 2; L Re, “Eyewitness Identification: Why So Many Mistakes?” (1984) 58 Australian Law Journal 509.
44. Evidence Act 1995 (NSW) s 116(1). See also Evidence Act 1995 (NSW) s 165(1)(b) and (2).
45. Evidence Act 1995 (NSW) s 116(2).
46. Dhanhoa v The Queen (2003) 217 CLR 1, [17]-[22], [53], [90]-[94].
47. Evidence Act 1995 (NSW) Dictionary “identification evidence”.
48. See Kanaan v R [2006] NSWCCA 109, [115]-[126].
49. See para 7.4.
50. R v Clout (1995) 41 NSWLR 312, 320-321; clothing: R v Lowe (1997) 98 A Crim R 300, 314-318.
51. R Costigan, “Identification from CCTV: The Risk of Injustice” [2007] Criminal Law Review 591, 596.
52. R v Downey [1995] 1 Cr App R 547, 556; R v Blenkinsop [1995] 1 Cr App R 7, 11-12.
53. R v Blenkinsop [1995] 1 Cr App R 7, 11.
54. See R v Kelleher [1974] 1 NSWLR 517 (affirmed in Kelleher v The Queen (1974) 131 CLR 534).
55. The Crimes (Sexual Assault) Amendment Act 1981 (NSW) inserted s 405C into the Crimes Act 1900 (NSW) which provided that on the trial of a person for a prescribed sexual offence, the Judge is not required by any rule of law or practice to give…a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed.
56. R v Murray (1987) 11 NSWLR 12.
57. R v Murray (1987) 11 NSWLR 12, 19 (Lee J).
58. NSW Department of Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (1996) 188-190. The study covered all sound-recorded sexual assault hearings in the District Court of NSW over one year between 1 May 1994 and 30 April 1995.
59. D Boniface, “The Common Sense of Jurors vs the Wisdom of the Judicial Directions and Warnings in Sexual Assault Trials” (2005) 28 University of New South Wales Law Journal 261, 267.
60. D Boniface, “The Common Sense of Jurors vs the Wisdom of the Judicial Directions and Warnings in Sexual Assault Trials” (2005) 28 University of New South Wales Law Journal 261, 265.
61. NSW Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions (2002), [4.192].
62. “Prescribed sexual offence” is defined in Criminal Procedure Act 1986 (NSW) s 3.
63. This became effective on 1 January 2007.
64. See NSW, Parliamentary Debates (Hansard) Legislative Assembly, 18 October 2006, the Hon G McBride, Minister for Gaming and Racing on behalf of the Hon Bob Debus, Second Reading Speech, 2958.
65. NSW Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions (2002) Recommendations 24 and 25.
66. H Donnelly, “Delay and the Credibility of Complainants in Sexual Assault Proceedings” (2007) 19 Judicial Officers’ Bulletin 17, 21.
67. Longman v The Queen (1989) 168 CLR 79.
68. Longman v The Queen (1989) 168 CLR 79, 91 (Brennan, Dawson and Toohey JJ).
69. Longman v The Queen (1989) 168 CLR 79, 90-91 (Brennan, Dawson and Toohey JJ).
70. Longman v The Queen (1989) 168 CLR 79, 102 (Deane J).
71. Longman v The Queen (1989) 168 CLR 79, 107-108 (McHugh J).
72. Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60.
73. Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, [44]-[45] (Gaudron, Gummow, Callinan JJ).
74. Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46.
75. The corroborative evidence in that case consisted of a taped telephone conversation, organised with the assistance of the police, in which the accused made admissions of a general nature. Further, the complainant’s mother and brother gave evidence which supported aspects of the complainant’s evidence, such as the fact that she had complained to her mother about the sexual assaults. The High Court held that the corroborative evidence which was led at that particular trial had not itself been sufficient to displace the obligation on the trial judge to give a Longman warning: at [45]-[54] (Gaudron and Callinan JJ). Kirby J described the corroborative evidence in that case as patchy, unspecific, or completely silent on some of the incidents referred to in the charges: at [135].
76. R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60, [15]-[20] (Wood CJ at CL); J Wood, “Complaint and Medical Examination Evidence in Sexual Assault Trials” (2002) 15 Judicial Officers’ Bulletin 63.
77. R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60, [15]-[20] (Wood CJ at CL).
78. Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report (2006) [2.2.18]; NSWLRC, Uniform Evidence, Report 112 (2005) [18.95].
79. R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60, [34] (Wood CJ at CL). See also NSW Criminal Justice Sexual Offence Taskforce, Responding to Sexual Assault: The Way Forward (2006) 95; NSWLRC, Uniform Evidence, Report 112 (2005) [18.93].
80. Sheehan v R (2006) 163 A Crim R 397; [2006] NSWCCA 233, [107] (Kirby J).
81. R v Johnston (1998) 45 NSWLR 362, 369-370 (Spigelman CJ).
82. See R v GJH (2000) 122 A Crim R 361; [2001] NSWCCA 128; R v SJB (2002) 129 A Crim R 54; [2002] NSWCCA 163.
83. See, for example: Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 (two-year delay): R v Perez [2008] NSWCCA 46 (four-year delay).
84. Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42.
85. DRE v R (2006) 164 A Crim R 400; [2006] NSWCCA 280. Spigelman CJ remarked that this was “at best a borderline case for a Longman warning”: at [4].
86. R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60, [95] (Sully J). Wood CJ at CL appears to have limited his agreement with Sully J’s judgment to where there is “significant” delay between the alleged offence and complaint: at [4].
87. See NSW Legislative Council Standing Committee on Law and Justice, Report on Child Sexual Assault Prosecutions (2002) Recommendation 23; NSW Interagency Adult Sexual Assault Committee, A Fair Chance: Proposals for Sexual Assault Law Reform in NSW (2004) 16; NSWLRC, Uniform Evidence, Report 112 (2005) Recommendation 8–3; Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report (2006) Recommendation 2; Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) Recommendation 170.
88. The Taskforce included judges, representatives from government agencies (such as the Office for Women, the Attorney General’s Department, Department of Community Services, NSW Health and Legal Aid) non-government agencies (such as NSW Rape Crisis Centre and Women’s Legal Service NSW), NSW Police, government lawyers (including the Crown Advocate, Public Defenders Office, the Director of Public Prosecutions), academics, the NSW Law Society and the NSW Bar Association.
89. NSW Criminal Justice Sexual Offence Taskforce, Responding to Sexual Assault: The Way Forward (2006) 96.
90. These provisions came into effect on 1 January 2007. The word “and” at the end of s (3)(b) appears to be a drafting error.
91. J Nicholson, “Four Key Sexual Assault Directions”, Sexual Assault Handbook (NSW Judicial Commission, 2008) [55].
92. R v Johnston (1998) 45 NSWLR 362, 370.
93. R v Carr (2000) 117 A Crim R 272; [2000] TASSC 183, [27]-[35].
94. Criminal Procedure Act 1986 (NSW) s 294.
95. Kilby v The Queen (1973) 129 CLR 460.
96. Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(5)(b); Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A(4); Evidence Act 1929 (SA) s 34I(6a); Criminal Code 1924 (Tas) s 371A; Criminal Procedure Act 1986 (NSW) s 294; Crimes Act 1958 (Vic) s 61(1)(b); Evidence Act 1906 (WA) s 36BD.
97. Criminal Procedure Act 1986 (NSW) s 294(2). This provision was adopted in 1981 when it was inserted as Crimes Act 1900 (NSW) s 405B.
98. Crofts v The Queen (1996) 186 CLR 427.
99. Crimes Act 1958 (Vic) s 61.
100. The High Court followed the decision of the NSW Court of Criminal Appeal in R v McDonald (1985) 3 NSWLR 276, 278 (Hunt J).
101. See Crofts v The Queen (1996) 186 CLR 427, 451-452 (Toohey, Gaudron, Gummow and Kirby JJ).
102. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) [7.89]-[7.90].
103. See Kilby v The Queen (1973) 129 CLR 460.
104. Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) [2.37]-[2.2.46].
105. K London, et al, “Disclosure Of Child Sexual Abuse: What Does the Research Tell Us About the Ways that Children Tell?” (2005) 11 Psychology, Public Policy, and Law 194.
106. See D Lievore, Non-Reporting and Hidden Recording of Sexual Assault in Australia (2002). While this paper examines the extent of and reasons for non-reporting of sexual assaults, it is likely that the same factors are at play in cases involving delay in making the complaint.
107. R v LTP [2004] NSWCCA 109, [123] (Howie J). See also Suresh v The Queen (1998) 153 ALR 145, 147 where Gaudron and Gummow JJ stated that the assumption that a victim of a sexual assault will complain at the earliest opportunity is of “doubtful validity”, particulary in child sexual assault cases.
108. In a VLRC study of 11 cases where the trial judge gave the Crofts warning, only two cases involved a delay in complaint: Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004) [7.88].
109. J Wood, “Child Witnesses: The New South Wales Experience” (Australian Institute of Judicial Administration: Child Witnesses – Best Practice for Courts, Parramatta, 30 July 2004).
110. NSW Criminal Justice Sexual Offence Taskforce, Responding to Sexual Assault: The Way Forward (2006) 101-102.
111. Criminal Procedure Act 1986 (NSW) s 294(2)(c).
112. Crofts v The Queen (1996) 186 CLR 427, 451 (Toohey, Gaudron, Gummow and Kirby JJ).
113. See H Donnelly, “Delay and the Credibility of Complainants in Sexual Assault Proceedings” (2007) 19 Judicial Officers’ Bulletin 17 for a view on how the phrase “sufficient evidence” in Criminal Procedure Act 1986 (NSW) s 294(2)(c) might be construed.
