Not-So-Uniform Evidence Law: Reforming Longman Warnings

Abstract

The Australian, New South Wales and Victorian Law Reform Commissions recently conducted a joint inquiry into the uniform evidence legislation. The Commissions made unanimous recommendations regarding the majority of issues in their Final Report. However, reform of Longman warnings—given in sexual assault trials to warn the jury of the effect upon an accused of a delay between the alleged crime and trial— proved contentious. While the Australian and Victorian Law Reform Commissions favoured limiting judicial discretion over Longman warnings, the NSW Law Reform Commission believed that this would compromise the accused person's right to a fair trial. This article offers a critique of the NSW Law Reform Commission's dissent. The article commences by considering the Commission's approach to the fair trial principle. It suggests that the Commission's analysis is predicated on a narrow understanding of this principle, and asserts that fairness to an individual defendant cannot alone justify unfettered judicial discretion over Longman warnings if such warnings cause systemic prejudice to a class of victims. The article will then canvass several aspects peculiar to sexual assault trials that render warnings about delay problematic. Finally, evidence of the increasingly routine application of Longman warnings will be considered. In light of this evidence, the Commission's argument that such warnings are necessary to ensure fairness on the facts of individual cases is no longer convincing.