Prior to 1 December 2006, if a complainant failed to make a timely complaint about an alleged sexual offence, the judge needed to warn the jury about any perceptible risks of miscarriage of justice that the delay had caused, including the risk of forensic disadvantage (Longman v R (1989) 168 CLR 79).
In such cases, the “Longman rule” often required judges to warn the jury that it would be dangerous to convict on the complainant’s evidence alone unless, after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, they were satisfied of its truth and accuracy (Longman v R (1989) 168 CLR 79.).
The application of the Longman rule to the issue of forensic disadvantage was substantially modified by the insertion of ss61(1A)-(1F) into the Crimes Act 1958, which codified the law in this area and abrogated any previous law. These provisions applied to “proceedings” commenced on or after 1 December 2006 (Crimes Act 1958 s607). From 2010, the issue of forensic disadvantage was also addressed by s165B of the Evidence Act 2008.
From 29 June 2015, the new Part 4, Division 5 of the Jury Directions Act 2015 replaced the statutory directions of the Crimes Act 1958 and Evidence Act 2008 regarding delay and forensic disadvantage. The common law requirements on judges to direct the jury about forensic disadvantage were abolished and judges were prohibited from warning juries that it is dangerous to convict on the complainant’s evidence alone.
When to Give a Forensic Disadvantage Direction
The need for a direction on forensic disadvantage is governed by Jury Directions Act 2015, Part 4. Division 5. Defence counsel may request that a judge direct the jury on the forensic disadvantage experienced by the accused due to the consequences of delay between the alleged offence and the trial (Jury Directions Act 2015, 39(1)). If sought, a judge must give the jury the direction unless there are good reasons for not doing so (Jury Directions Act 2015 s14, 39(2)). A judge must not give a direction if it has not been requested, unless there are substantial and compelling reasons for doing so (see Jury Directions Act 2015 s16).
While the Jury Directions Act 2015 does not require it, judges should ask defence counsel whether they seek a forensic disadvantage direction if the judge is concerned that the issue may have been overlooked.
At common law, a direction on forensic disadvantage was required when the delay between the alleged offences and the trial, and the risk that the accused lost means of testing the allegations which would have been available if there had not been such a delay, gave rise to a perceptible risk of a miscarriage of justice (Longman v R (1989) 168 CLR 79; R v Miletic  1 VR 593; R v Inston (2009) 103 SASR 265; SPB v Western Australia  WASCA 136).
The warning was necessary because the circumstances which created the risk of a forensic disadvantage may not have been apparent to the jury (Longman v R (1989) 168 CLR 79; R v Miletic  1 VR 593; R v Mazzolini  3 VR 113).
The delay which gave rise to the need for the warning was not mathematically defined. Judges needed to determine whether the case was one of “long delay” which gave rise to the need for the warning (Doggett v R (2001) 208 CLR 343 per Kirby J).
A judge may direct the jury on forensic disadvantage only if the judge is satisfied that the accused has experienced a significant disadvantage (Jury Directions Act 2015 s39(2)).
A direction is not required simply because there has been a delay between the alleged offence and the trial. The judge must find that the accused suffered a significant disadvantage in challenging, adducing or giving evidence, or conducting their case because of the consequences of that delay (Jury Directions Act 2015 s38). A hypothetical disadvantage is not sufficient.
Some forensic disadvantages that may result from delay include:
Loss of chance to explore the circumstances of the alleged offending in detail;
Loss of chance to identify the occasion of the allegations with any specificity;
Loss of chance to make any defence other than a simple denial;
Loss of chance of medical examination of the complainant;
Loss of chance to establish an alibi;
Loss of chance to call evidence contradicting the broader evidence of the complainant;
Loss of chance to obtain documents that may have assisted the defence;
Disadvantage in testing events that may have affected the complainant's recollection or reliability (see Longman v R (1989) 168 CLR 79; Crampton v R (2000) 206 CLR 161; R v Morrow (2009) 26 VR 526).
These disadvantages may be exacerbated where the complainant’s own recollections are weakened by the delay, and he or she can therefore offer few specific details to be tested before the jury (Crampton v R (2000) 206 CLR 161).
Whether or not the accused has suffered any forensic disadvantage will depend on the circumstances of the case. For example:
Where specific dates are given and opportunity is admitted, there may be no basis for arguing that a chance at alibi has been lost (R v GTN (2003) 6 VR 150);
Where medical evidence could not have been led to prove or disprove the offence (e.g. an indecent touching), the lost opportunity to gather such evidence will not be significant (Tully v R (2006) 230 CLR 234).
While the passage of time alone cannot be determinative of whether a direction is required, the length of the delay will be a significant factor:
The greater the delay, the more likely it is that the accused will have suffered a significant forensic disadvantage (see, e.g., Doggett v R (2001) 208 CLR 343 per Kirby J; R v GTN (2003) 6 VR 150);
The shorter the delay, the more difficult it will be to show that the accused has lost the ability to adequately test the evidence of the complainant or to adequately marshal his or her defence (see, e.g., Tully v R (2006) 230 CLR 234).
The judge will generally not need to find that the missing evidence would have assisted the accused. However, a positive finding that the missing evidence would not have assisted the accused will generally suggest that there has been no significant forensic disadvantage.
Content of the Charge
When a forensic disadvantage direction is to be given, the judge must inform the jury of:
the nature of the disadvantage experienced by the accused; and
the need to take the disadvantage into account when considering the evidence (Jury Directions Act 2015 s39(3)(a)).
The judge must clearly identify the specific forensic disadvantages which have resulted from the delay. The precise nature of those disadvantages will depend on the circumstances of the case (see above).
Although a judge has flexibility in the way he or she directs the jury, in light of its status as a mandatory statutory direction, and its function in protecting the accused from a potential miscarriage of justice, the direction should be invested with judicial authority. It should not be described as a “comment” (R v Morrow (2009) 26 VR 526).
“Forensic disadvantage” is a legal term of art and is unlikely to be understood by the jury without further explanation. It should not be used in the directions.
When informing the jury about the nature of the forensic disadvantages that have been identified, care should be taken to avoid suggesting that the judge has made any findings about the facts in issue in the trial.
Judge Must Not Warn Jury that it is “Dangerous to Convict”
The judge must not say, or suggest in any way, to the jury that, as a result of the delay:
it would be dangerous or unsafe to convict the accused; or
the complainant’s evidence should be scrutinised with great care (Jury Directions Act 2015 s39(3)(b)).
Where there has been a delay, judges are commonly also asked to warn the jury about the risk that the complainant’s memory may be honest but erroneous. Where it is appropriate to give both warnings, it will generally be convenient to combine them in the one direction.
Where the complainant has failed to make a timely complaint, the judge may also be required to instruct the jury about the significance of delay. See Effect of Delayed Complaint on Credit for further information.
Where the complainant is the sole witness asserting the commission of a crime, it may be appropriate to warn the jury about the care required before convicting on the basis of that evidence (R v Murray (1987) 11 NSWLR 12; Robinson v R (1999) 197 CLR 427). While such a direction is customary in New South Wales, in Victoria it is not regarded as obligatory (R v Aden & Toulle (2002) 162 A Crim R 1).
 Under the common law, the “proceeding” commences when the court is seised of the matter by the filing of a presentment. There is a new “proceeding” if a new presentment is filed over (R v Taylor (No.2) (2008) 18 VR 613; R v BDX (2009) 24 VR 288). However, under the Criminal Proceedure Act 2009, there is a single criminal proceeding that commences when the charge-sheet or direct indictment is filed and committal hearings, trials, appeals and re-trials are all part of a single proceeding (see Criminal Procedure Act 2009 ss5, 162, 164).
 Jury Directions Act 2015 uses ‘victim’ instead of ‘complainant’. We have retained ‘complainant’ to maintain consistency across the Charge Book.