A long-standing principle in common law considered a delay in making a complaint could be raised before a jury to caution them before they convicted an accused. When I say long-standing, this principal goes back to Medieval times between 1200 AD and 1300 AD where the term Hue and Cry was a feature of the common law. The reasoning was if a person was assaulted they would complain.
This was particulary so in sexual assault cases where the failure of a woman who alleges rape to raise an immediate ‘hue and cry’ was taken as evidence of consent.
Kilby vs The Queen
In Kilby v The Queen (1973) 129 CLR 460, the High Court rejected the argument that an inference of consent can be drawn from the complainant’s failure to make an immediate complaint, but held that evidence of complaint is relevant to the complainant’s credibility.
In practice, judges warn juries that an absence of complaint does not mean that the sexual assault did not take place. Alternatively, a complaint on its own does not mean that the sexual assault took place.
Distinct forensic disadvantage
What is of importance is that a delay in complaint which is often a feature in sexual assault cases means that the accused is at a distinct forensic disadvantage. This means that if the matter had been reported a day earlier or a week earlier or even a month earlier, the accused could interrogate his records to determine such things where he was on the day the assault is said to have taken place. Was he with anyone at the time? Or was he in a different jurisdiction thereby leading alibi evidence, telephone records, bank records could also be brought to bear to explain the surrounding circumstances of the accused at the time of the alleged assault.
Judges warn juries that because of the forensic disadvantage faced by the accused the complainant’s evidence needs to be carefully considered. In the case of lengthy delay say 5- 10 years or more judges often direct the jury that it would be dangerous to convict because of the forensic disadvantage suffered by the extensive delay in complaining.
The Longman warning – Section 309 of the Evidence Bill 2024
This is what is referred to as a Longman warning. This gave the defence team a strong foothold in order to challenge the credibility of the complainant. This however, is all about to change. Section 309 of the Evidence Bill 2024 abolishes the Longman warning. The judge is entitled to inform the jury of the forensic disadvantage but now is prohibited from directing the jury in the form of a warning that it would be dangerous or unsafe to convict or that the evidence of the complainant must be scrutinised with great care.
This development makes a dent in how the defence runs its case. How this will play out in courtrooms around WA remains to be seen. This amendment is another step by legislators to place men at a distinct disadvantage when defending allegations of sexual abuse.
