Longman Warning and s165B

The Longman warning is perhaps one of the most important warnings, in particular because the matter about which the jury are being warned is one that draws on practicalities of defending allegations relating to times well past.

There is an important difference between directions that trial judges give juries, and warnings.

The purpose of a direction is to assist the jury in completing their task, but providing the benefit of the court system’s experience in similar matters. Self evidently, the experience of the courts exceeds the experience that of the jury, and it would be remiss to not provide such warnings as would assist the jury in the discharging of their task.

The Longman warning is perhaps one of the most important warnings, in particular because the matter about which the jury are being warned is one that draws on practicalities of defending allegations relating to times well past.

In Longman v R [1989] HCA 60, the majority described the warning as being in regard to “the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution.”

Importantly, the question of the warning is not to be determined by reference to the period of delay itself, but rather to the “consequence of the delay” (GROUNDSTROEM Christoffer Andreas v R [2013] NSWCCA 237).

The common law warning has, since 2007, been codified in s165B of the Evidence Act 1995, which requires that the Defendant demonstrate “significant forensic disadvantage” occasioned by the delay. The section also specifically provides a non-exhaustive list of matters that may constitute the “significant forensic disadvantage”, including “the fact that any potential witnesses have died or are not able to be located” and “the fact that any potential evidence has been lost or is otherwise unavailable.”

 

Longman

Longman v R [1989] HCA 60

“But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer, at p 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution.”