Case: Longman v R [1989] HCA 60 ; (1989) 168 CLR 79
Outcome: considered
The usual or 'presumptive' results of long delay are the possibility of honest unreliability on the part of the complainants, including possible unconscious substitution of an imagined reality for what actually occurred, the fading and loss of recollection of pertinent details by an innocent accused and the loss of legitimate opportunities to test the detail of allegations and marshal evidence pointing to innocence. McHugh J (in remarks later approved in Crampton v The Queen [2000] HCA 60 ; (2000) 206 CLR 161 by Gaudron, Gummow and Callinan JJ, said in Longman v R [1989] HCA 60 ; (1989) 168 CLR 79 at 107: 'The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: ... No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complainant and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. ... Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, "I don't hate him but I do hate what he's done and the problems it's caused in my life". H owever, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred. To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.' 104 I turn to what is, to my mind, upon reflection, an important matter. Under Australian law, there are quite specific safeguards required in trials of old allegations of the kind here in question. In such a case it is mandatory that the judge should give the jury a strong warning, not merely make comment, about an accused person's 'loss of those means of testing the complainant's allegations which would have been open to him had there been no delay ...'. The High Court so decided in Longman [1989] HCA 60 ; (1989) 168 CLR 79. Brennan, Dawson and Toohey JJ said (at 91): 'After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of New South Wales..) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.' McHugh J would have required more (at 108-9): '... the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, ... that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. ...' His Honour's suggestions were, as earlier indicated, approved by a majority in Crampton. 107 Thus in Australia there is a guarantee that, if a trial of old allegations of alleged childhood sexual assault is not stayed, the difficulties faced by an accused faced in meeting accusations of conduct long ago will be mitigated by a 'firm and unmistakeable' warning to the jury carrying the weight of the trial judge's authority. There is no such guarantee in New Zealand. It appears that the courts of that country have set their face against following Longman : R v M CA 187/95 13 November 1995 . 108 It is not, of course, every difference between New Zealand and Australian criminal law that will justify the courts of one of them in regarding the law of the other as unjust. Indeed the courts should be chary of doing that, as the authorities I elsewhere refer to indicate. In many instances, reasonable minds may and do differ on what constitute the incidents of a fair trial. However, the matter at issue concerns the mitigation of likely actual disability for an accused person arising from long delays. The Longman direction is viewed in Australia as necessary to ensure that the accused gets a fair hearing by the jury. The Australian view is that there is a non-negotiable need to warn the jury of something crucial that they are likely not sufficiently to appreciate or properly to consider without that warning. In Doggett v The Queen [2001] HCA 46 ; (2001) 208 CLR 343 the High Court held (by majority) that a Longman direction must be given even where a complainant's evidence was corroborated, the prosecution case was 'in many respects a strong one' (c.f. [55] per Gleeson CJ) and experienced counsel had made no request for it at trial. 109 It seems to me that the requirement for a Longman direction is not something that any Australian judge or magistrate is entitled to view as other than a vital requirement for a just trial in a case of long delay. Upon analysis, because it deals with a particular difficulty the accused would have in having the jury understand his story, the necessity for such a direction goes to the right to a fair hearing. Such is, of course, a fundamental right recognised by the Universal Declaration of Human Rights (adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948) ('UDHR') and the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)) ('ICCPR'), together often known as the International Bill of Rights. The UDHR provision (Art 10) provides: 'Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.' So far as material Art 14(1) of ICCPR provides: 'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...' 110 The Longman requirement is, in my opinion, analogous to the rejection by the High Court of 'representative charges' in Australia, considered in this Court in Bannister . In that case, it appeared that, in sexual abuse cases in New Zealand (as explained in R v Accused [1993] 1 NZLR 385 at 389) where the prosecution evidence: '... does not enable more particularity than that the conduct alleged occurred a number of times over quite a long period, such as a year or more ... the practice is to specify in [a] count [that] period ... and to allege a crime (eg rape or indecent assault) during that period ... To obtain a conviction the prosecution must then satisfy the jury beyond reasonable doubt that at least one criminal act of the description alleged was committed by the accused during that period ...' 131 This second aspect has also occasioned my anxious concern. However, as indicated above, I am not only bound by the approach taken in Bannister , but on reflection consider that the Bannister conclusion is inescapable for an Australian court, where there is a divergence between New Zealand and Australian law, however contestable, in a matter sufficiently serious as to turn the issue on the question of injustice. The divergence in my view, as to the Longman direction, does have that quality in the present cases. I see no way around this in New Zealand's favour. 136 There is however one aspect of possible oppression which deserves further discussion. It was argued that, despite the lack in New Zealand of the specific and important common law protection available in Australia constituted by the necessity for the Longman direction, there is at least a good chance that the New Zealand courts would consider that the combination of the detriments to the defence case from the long delay and the possibilities of unreliable if honest evidence that appear to exist, would warrant the trials being stayed. It is said that it would be oppressive to surrender the applicants only to see them not tried. 137 There are two answers to this. Firstly, I cannot foretell with reasonable confidence how New Zealand courts might react to the entirety of the material, including the actual witnesses' statements, that would be before them on stay applications. Secondly, there must be many cases in which people are extradited to New Zealand where, for one reason or another, the trial does not proceed. If it is not oppressive to return someone with a strong prospect of being actually found not guilty, it is hardly oppressive to return him even if he has a strong prospect of the proceedings terminating, for what may be less meritorious reasons, in a way which favours him.