The Queensland Government has recently amended the law which governs a direction a Judge can give to a Jury for cases involving allegations of historic offending including allegations of historic sexual offending. This direction is referred to as a “Longman” direction and is named after a High Court of Australia decision from 1989.
The Longman direction was given where there was a long delay in a complaint being brought before the Court. Typically, as part of the direction, the jury would be directed that, because of the passage of so many years, it would be dangerous to convict on the uncorroborated evidence of the complainant alone ‘unless the jury, scrutinizing the evidence with great care … were satisfied of its truth and accuracy’.
The direction operated as a safeguard for the Defendant’s right to a fair trial and was based on the rationale that a significant delay puts the accused at a forensic disadvantage because he has lost the ‘means of testing the complainant’s allegations which would have been open to him had there been no delay’.
The changes to the law which take effect from 15 September 2020, are contained in section 132BA of the Evidence Act 1977. That section states that a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence. Furthermore, in giving the direction the judge must inform a jury of the nature of the disadvantage and the need to take the disadvantage into account when considering the evidence. Finally, the judge must not warn a jury in any way that it would be dangerous or unsafe to convict the defendant or that a complainant’s evidence should be scrutinized with great care.
The effect of this section it that it will now be incumbent on the defendant to establish how a delay in proceeding has caused a forensic disadvantage in order to for a Judge to make a direction to the Jury that the delay in making the complaint should be taking into account when considering the evidence.