Complaint evidence
[5-000] Introduction
Evidence of complaint by an alleged victim is admissible under s 66(2) Evidence Act 1995, where the complainant gives evidence. It is some evidence of the fact the accused conducted themself as alleged in the complaint. The evidence can also be used to show consistency of conduct by the complainant. This type of evidence is not restricted to sexual assault cases. Evidence can be admitted under s 66 as relevant to any offence provided it is first-person hearsay under s 62.
Evidence of complaint can also be admissible under s 65(2) Evidence Act, where the person making the complaint is not available to give evidence, for example where the complainant is dead or for some other reason is not available: see cl 4 of the Dictionary.
Further, such evidence can be admitted with leave under s 108(3)(b) in order to re-establish the credibility of a witness. In that case, the complaint can become evidence of the truth of the allegation made in the complaint by the operation of s 60 of the Act unless limited under s 136.
[5-010] Evidence of complaint where witness available to give evidence — s 66(2)
As to the admissibility of complaint under s 66(2): see generally Papakosmas v The Queen (1999) 196 CLR 297; Criminal Practice and Procedure NSW at [3-s 66.1]; Uniform Evidence Law (16th edn, 2021) at [EA.66.60]ff; Uniform Evidence in Australia, (3rd edn, 2020) at 66-2ff.
The use to be made of the evidence can be limited under s 136 of the Act so that it cannot be used as proof of the fact of what was asserted in the complaint, but relevant only to the credibility of the alleged victim. This limit, however, would not generally be applied to complaint evidence admitted under s 66(2): see generally: R v BD (unrep, 28/7/97, NSWCCA); Papakosmas v The Queen at [40]; Criminal Practice and Procedure NSW at [3-s 136.1]; Uniform Evidence Law (16th edn, 2021) at [EA.136.60]ff; Uniform Evidence in Australia, (3rd edn, 2020) at 136.1ff.
Section 66(2A) sets out matters the court may take into account in determining whether the occurrence was fresh in the memory of the person who made the representation. The phrase “fresh in the memory” is interpreted more broadly than by the High Court in Graham v The Queen (1998) 195 CLR 606: R v XY [2010] NSWCCA 181 at [78]–[79], [99]; and at [83]–[98]; see also The Queen v Bauer (a pseudonym) (2018) 266 CLR 56 at [89]. The time that has passed between the alleged offences and the complaint remains relevant but is not determinative: R v XY at [79]. It is necessary to consider the facts in each case. In sexual assault cases it is recognised the nature of the offending may be such that the events involved may remain fresh in a complainant's memory for many years: The Queen v Bauer (a pseudonym) at [92]; R v XY at [85]; R v Gregory-Roberts [2016] NSWCCA 92 at [47]–[48]; Kassab (a pseudonym) v R [2021] NSWCCA 46 at [339]–[340].
As the evidence is admitted as hearsay, a warning may be required under s 165(1)(a) of the Act: see generally R v TJF [2001] NSWCCA 127 where there was delay and the complaint was prompted; Criminal Practice and Procedure NSW at [3-s 165.1]ff; Uniform Evidence Law (16th edn, 2021) at [EA.165.90]ff; Uniform Evidence in Australia, (3rd edn, 2020) at 165-9ff.
[5-020] Suggested direction — where complaint evidence admitted under s 66(2)
The following direction suits a case in which the fact of an assault is disputed. It may be modified for a case where the act is not disputed but there is an issue as to consent. If use of the evidence has been limited under s 136 Evidence Act 1995, the direction should omit reference to the evidence having twofold use and omit the reference to s 60 Evidence Act use.
Where the evidence is used to re-establish credibility under s 108(3), the following direction may be used with appropriate adaptation including, of course, omission of references to s 60 Evidence Act use.
The directions include any required in accordance with s 294 if delay in complaint is raised.
If it is contended there is a difference between the complainant's evidence and a prior complaint, a direction under s 293A Criminal Procedure Act 1986 as suggested at [5-050] may be incorporated where indicated. A judge may give a direction under s 293A or s 294 at any time during the trial and may give the same direction more than once: ss 293A(2A); 294(2A). See further at [5-060] below.
The Crown relies on the evidence of the complainant having told [a person or people] about the alleged assault by the accused. This is referred to as “complaint evidence”.
[Set out the evidence of complaint.]
It is for you to determine whether there was complaint by the complainant.
If you determine that complaint was made, the following direction/s apply to how it may be used.
Section 60 use
The first way in which the evidence may be relevant is that it can be regarded as additional evidence the complainant was assaulted in the way they described. So, not only would you have the complainant’s evidence before you about being assaulted by the accused, you would also have the description of the assault that was given to [witness].
[Set out the competing arguments as to this, if any.]
Credibility use
The [second] way the evidence of complaint may be used is that it can be relevant to the truthfulness of the complainant’s evidence in court.
The Crown says the fact the complainant complained to [witness] when the complainant did [add if relevant: and in the circumstances in which the complainant did] makes it more likely the complainant is telling you the truth about having been assaulted by the accused.
The defence disputes this [set out defence arguments].
[Where the evidence is limited to solely credibility under s 136 add: You can only use the evidence of complaint in this way. You cannot use it as evidence that the assault occurred. The Crown did not lead the complaint evidence as itself being able to prove the charge. You can only find the charge proved on the evidence given in the courtroom and not what was said at some other place and time to [witness].]
[If appropriate add: Another matter you should consider is that just because a person says something on more than one occasion it does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.]
[If there was a delay in complaint for a prescribed sexual offence, add (s 294(2)): In relation to the timing of the complaint made to [witness], you should bear in mind that a delay in complaining does not necessarily indicate that the allegation is false. There may be good reasons why a victim of a sexual assault may hesitate in making, or refrain from making, a complaint about it. [Summarise the competing cases as to this.]]
[In relation to delay in complaint for a prescribed sexual offence (that is, where the “sufficient evidence” test under s 294(2)(c) is met) add: However, the accused has argued that the delay in making a complaint is inconsistent with the conduct of a truthful person who has been sexually assaulted and so you should regard this as indicating that the complainant’s evidence is false. The accused asks you to rely upon the evidence that … [set out the evidence relied upon by the accused said to justify that the jury should use the delay in assessing the complainant’s credibility].]
[Where the offence is a prescribed sexual offence (see [5-045] Direction where difference in complainant’s account — prescribed sexual offences only – s 293A Criminal Procedure Act 1986) add:
The defence case is that [witness] was not telling the truth, that there were gaps in the account [witness] gave, and that there were differences and inconsistencies between the witness’s accounts.
[Summarise relevant evidence]
Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is your job, and entirely a matter for you members of the jury, as judges of the facts, to decide whether or not any differences in the complainant’s account are important in assessing their truthfulness and reliability.]
[Summarise the competing cases to the extent that this has not already been done.]
[5-030] Evidence of complaint where witness not available under s 65(2)
Evidence of a complaint about the accused’s conduct can be admitted as evidence of the truth of the allegation under s 65 even though the complainant is not available as a witness, for example in a murder case. Such evidence will usually be admitted as evidence of a relationship between the complainant and the accused and is admitted for the purpose of being used by the jury as evidence of the truth of the allegation made.
The mere fact a complainant refuses to answer questions will not always satisfy the requirement of “all reasonable steps” in the definition of “unavailability of persons” in Pt 2, cl 4(g) of the Dictionary to the Act for the purpose of s 65(1). What constitutes “all reasonable steps” will depend upon the circumstances of the case but some relevant considerations include: the nature of the case; the importance of the evidence; the higher standard of proof in a criminal trial; and the importance of the liberty of the individual: RC v R [2022] NSWCCA 281 at [114]–[115]. The serious consequences of the successful invocation of s 65 emphasises the need for compliance with the conditions of admissibility prescribed by the section: at [116]; Sio v The Queen (2016) 259 CLR 47 at [60]–[61].
Section 65(2) is premised upon an assumption that a party is seeking to prove a specific fact and so it requires the identification of the particular representation to be adduced to prove the fact: Sio v The Queen at [57]. It is then that the court considers the circumstances of the representation to determine whether the conditions of admissibility have been met under s 65(2): Sio v The Queen at [57]. Section 65(2)(d)(ii) is directed at circumstances that of themselves tend to negative motive and opportunity of the declarant to lie: Sio v The Queen at [64].
Section 65(2)(d)(ii) requires a court to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character: Sio v The Queen at [64].
The test in s 65(2)(b) is less stringent than that in either s 65(2)(c) or (d) but cases considering those parts of s 65(2) apply to the test in s 65(2)(b) provided the different language of each is borne in mind: Priday v R [2019] NSWCCA 272 at [29]–[37]. As to evidence admitted under s 65(2): see generally Sio v The Queen at [53]–[74]; R v Serratore (1999) 48 NSWLR 101; R v Toki (No 3) [2000] NSWSC 999; Criminal Practice and Procedure NSW at [3-s 65.1]ff; Uniform Evidence Law (16th edn, 2021) at [EA.65.150]ff; Uniform Evidence in Australia, (3rd edn, 2020) at 65-2ff.
As to the unavailability of a witness: see cl 4 of the Dictionary and generally, Criminal Practice and Procedure NSW at [3-s 65.15]; Uniform Evidence Law (16th edn, 2021) at [EA.65.150]ff; Uniform Evidence in Australia, (3rd edn, 2020) at 65-4.
Because of the variety of the situations in which such evidence can be given, no suggested form of direction is appropriate. However, a suitable direction can be adapted from the first part of the suggested direction in [5-020].
A warning would need to be given as to the fact that the evidence is hearsay under s 165 if it is requested.
[5-040] Evidence of complaint as a prior consistent statement under s 108(3)
Evidence of complaint that is not admitted under s 66(2), can be admitted in examination in chief or re-examination of the complainant by the Crown under s 108(3)(b). The evidence can only be introduced with the leave of the court: see s 192(2).
As to s 108(3)(b): see generally, Graham v The Queen (1998) 195 CLR 606; R v DBG [2002] NSWCCA 328; Criminal Practice and Procedure NSW at [3-s 108.1]; Uniform Evidence Law (16th edn, 2021) at [EA.108.150]ff; Uniform Evidence in Australia, (3rd edn, 2020) at 108-3ff.
[5-045] Direction where difference in complainant's account — prescribed sexual offences only
In trials for a prescribed sexual offence, where there is evidence suggesting a difference in the complainant's account that may be relevant to their truthfulness or reliability, it may be necessary to give the jury a direction in accordance with s 293A Criminal Procedure Act 1986. A “prescribed sexual offence” is defined in s 3. “Difference” is defined to include a gap or an inconsistency in the account or a difference between the account and another account: s 293A(3). The direction is not given as a matter of course but after submissions have been heard from the parties: s 293A(1). If it is decided the circumstances warrant the direction the jury may be directed that:
- (i)
-
people may not recall all the details of a sexual offence or may not describe it the same way each time, and
- (ii)
-
trauma may affect people differently, including affecting how they recall events, and
- (iii)
-
it is common for there to be differences in accounts of a sexual offence, and
- (iv)
-
both truthful and untruthful accounts of a sexual offence may contain differences, and
that it is for the jury to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability: s 293A(2).
This direction may be given at any time during the trial, and the same direction may be given on more than one occasion: s 293A(2A).
[5-050] Suggested direction
The defence case is that [name of witness] was not telling the truth, that there were gaps in the account [the witness] gave, and that there were differences and inconsistencies between the witness’s accounts.
[Summarise relevant evidence]
Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is your job, and entirely a matter for you members of the jury, as judges of the facts, to decide whether or not any differences in the complainant's account are important in assessing their truthfulness and reliability.
[5-055] Suggested direction — delay in, or absence of, complaint
This direction must be given when evidence is given, or a question is asked, tending to suggest an absence of, or delay in, making a complaint: s 294(1). The direction must not extend to directing that delay is relevant to the complainant's credibility “unless there is sufficient evidence to justify such a direction”: s 294(2)(c).
You have heard evidence that the complainant did not complain about what [the complainant] claims the accused did to them until they told [set out details of when, to whom, and nature of complaint].
[Alternatively: You have heard the complainant did not make any complaint about what [the complainant] claims the accused did to [the complainant].]
The delay in making a complaint about the alleged conduct of the accused [or an absence of a complaint] does not necessarily indicate the allegation the offence was committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault.
[Where appropriate: You have heard evidence that the complainant did not complain until [the complainant] did so to [specify] because [specify the explanation offered].]
[Where appropriate (that is, where the “sufficient evidence” test under s 294(2)(c) is met):
However, the delay in making a complaint [or the absence of a complaint] is a matter that you may take into account in assessing the credibility of the complainant's evidence as to what [the complainant] said the accused did. The accused has argued that the delay in making a complaint [or the absence of a complaint] is inconsistent with the conduct of a truthful person who has been sexually assaulted and so you should regard this as indicating the complainant's evidence is false. [The accused] asks you to rely upon the evidence that … [set out the evidence relied upon by the accused said to justify that the jury should use the delay in assessing the complainant's credibility].
This is a matter which you should consider.]
[5-060] Notes
- 1.
-
The statutory basis for the direction is found in s 294(1)–(3) Criminal Procedure Act 1986. The section is headed “Direction to be given by Judge in relation to lack of complaint in certain sexual offence proceedings” which provides:
- (1)
-
This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest—
- (a)
-
an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or
- (b)
-
delay by that person in making any such complaint.
- (2)
-
In circumstances to which this section applies, the Judge—
- (a)
-
must direct the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and
- (b)
-
must direct the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and
- (c)
-
must not direct the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a direction.
- (2A)
-
A judge may, as the judge sees fit—
- (a)
-
give a direction in this section at any time during a trial, and
- (b)
-
give the same direction on more than 1 occasion during a trial.
- (3)
-
If the trial of the person also relates to a domestic violence offence alleged to have been committed by the person against the same victim, the Judge may—
- (a)
-
also give a warning under section 306ZR, or
- (b)
-
give a single warning to address both types of offences.
Sections 294(1), (2)(a) and (b) were previously found in s 405B Crimes Act 1900 and s 107 Criminal Procedure Act. Section 294(2) was enacted to override the presumption expressed in Kilby v The Queen (1973) 129 CLR 460 at 465 that a failure of a person to complain at the earliest reasonable opportunity may be used by the jury as evidence relevant to the falsity of the complaint: Jarrett v R (2014) 86 NSWLR 623 at [34]. Section 294(2)(c) (added in 2007) provided, until 1 June 2022, that a judge could not give a “warning” about delay “unless there is sufficient evidence to justify such a warning”. Section 294(2) was amended by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 to replace the words “warn” or “warning” with “direct” or “direction”: Sch 2[9]–[12]. These amendments apply to proceedings the hearing of which commence on and from 1 June 2022.
The Court of Criminal Appeal considered an earlier version of s 294(2) in Jarrett v R (2014) 86 NSWLR 623 and expressed its reasons using the then language of the provision. However, the Court’s conclusions concerning the operation of the provision are unaffected by these amendments.
- 2.
-
The addition of s 294(2)(c) significantly recasts s 294(2): Jarrett v R at [38]. It is complemented by s 294AA (inserted at the same time) which prohibits the judge from directing a jury that complainants as a class are unreliable witnesses and that there is danger of convicting on the uncorroborated evidence of a complainant: Jarrett v R at [38]. Section 294(2)(c) restricts the circumstances in which a judge can direct a jury that the delay in, or an absence of, complaint can be taken into account in assessing the complainant's credibility. The court in Jarrett v R at [43] held that the circumstances and the nature of the direction will vary from case to case; the test of “sufficient evidence” must be the basis of the direction and it must mould with the mandatory directions required by s 294(2)(a) and (b). In Jarrett v R at [43], Basten JA said:
Without being prescriptive, there must be something in the evidence sufficient to raise in the judge’s mind the possibility that the jury may legitimately consider that the delay could cast doubt on the credibility of the complaint. Usually, one would expect that such matters would have been put to the complainant in the course of cross-examination. Those very matters may constitute the “good reasons” why there was no timely complaint for the purposes of par (b), but, if not believed, may form the evidence justifying the warning under par (c).
An inconsistency between a complainant's complaints is “not the basis for a direction based on delay”: Jarrett v R at [49].
Section 294(2)(c) does not require the giving of a direction that delay in complaint is not relevant to a complainant's credibility. Whether delay is relevant to that issue is open for a jury to consider, subject to any specific direction that may be given under s 294(2)(c): Park v R [2023] NSWCCA 71 at [118].
[5-070] Delay in complaint and forensic disadvantage to the accused
Where s 165B Evidence Act 1995 applies, a direction regarding any forensic disadvantage to the accused is to be given if:
- (a)
-
the proceedings are criminal proceedings in which there is a jury: s 165B(1). (The section applies in judge alone trials by virtue of s 133(3) Criminal Procedure Act 1986 which requires the judge to take the warnings required to be given to a jury into account: W v R [2014] NSWCCA 110 at [126]–[127], [130].)
- (b)
-
the court is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay: s 165B(2)
- (i)
-
significant forensic disadvantage includes, but is not limited to, death or inability to locate any potential witness and loss or otherwise unavailability of any potential evidence: s 165B(7)
- (ii)
-
delay includes delay between the alleged offence and it being reported: s 165B(6)(a)
- (iii)
-
significant forensic disadvantage is not established by mere passage of time by itself: s 165B(6)(b), and
- (c)
-
a party makes an application for the direction: s 165B(2).
The need to direct the jury on the forensic disadvantage occasioned to the accused as a result of delay in complaint emanated from the High Court decisions in Longman v The Queen (1989) 168 CLR 79 and later Crampton v The Queen (2000) 206 CLR 161 at [45]. Section 165B substantially changed the law as declared in those cases.
The onus is on the accused to satisfy the court the delay has caused a significant forensic disadvantage: Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354 at [39].
In TO v R [2017] NSWCCA 12 at [167], the Court (Price J; Button and Fagan JJ agreeing) summarised the effect of s 165B with reference to the cases of Groundstroem v R [2013] NSWCCA 237 and Jarrett v R (2014) 86 NSWLR 623 at [60]–[63]:
- 1.
The duty on the judge to give a direction in accordance with subsection (2) arises only on application by a party and what is said to be the particular significant forensic disadvantage must form part of the application: Groundstroem v R at [56].
- 2.
Subsection (5) prohibits the judge from directing the jury “about any forensic disadvantage the defendant may have suffered because of delay” otherwise than in accordance with the section: Jarrett v R at [53].
- 3.
There is a duty to inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence, only when the judge is satisfied that the defendant has “suffered a significant forensic disadvantage because of the consequences of delay”: Jarrett at [53].
- 4.
Subsection (3) provides a rider to the obligation to inform where the judge is satisfied there are “good reasons” for not taking that step: Jarrett at [53].
- 5.
Subsection (4) prohibits the judge from suggesting that it would be dangerous or unsafe to convict the defendant “solely because of” the delay or the disadvantage. Otherwise, no particular form of words need be used: Jarrett at [53].
- 6.
Whether there has been a significant forensic disadvantage depends on the nature of the complaint and the extent of the delay in the circumstances of the case. The extent of delay is not the test. It is the consequence of delay which is decisive: Groundstroem at [61]. The proper focus of s 165B is on the disadvantage to the accused: Jarrett at [60].
- 7.
The concept of delay is relative and judgmental. Although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the exception in s 165B(3): Jarrett at [61]–[62].
- 8.
If the accused is put on notice of the complaint, any failure to make inquiry thereafter will not normally constitute a consequence of the delay, but a consequence of the accused’s own inaction: Jarrett at [63].
The focus of s 165B is on the disadvantage to the accused and, unlike Longman v The Queen, there is no generalised assumption concerning the reliability of the complainant's evidence as a consequence of the delay: Jarrett v R at [54], [60]. Section 165B(4) specifically prohibits the giving of a “dangerous to convict” Longman direction which was considered by the Parliament to be an encroachment on the fact-finding task of the jury: W v R at [125]. A failure by a party to apply for a forensic disadvantage direction does not prevent a judge giving such a direction in order to avoid a perceptible risk of a miscarriage of justice: TO v R at [181] and [183]. This is supported by the preservation of the common law under s 9(1) Evidence Act and by the text of s 165B(5) which include “… but this section does not affect any other power of the judge to give any warning to, or to inform, the jury”: TO v R at [181]–[182].
The phrase “because of” in s 165B(2) requires that the consequences of delay cause, or is one matter causing, significant disadvantage to the accused: Cabot (a pseudonym) v R (No 2) at [71]. Where the accused’s conduct significantly contributes to the delay in complaint because of, for example, threats the accused made to a complainant, any forensic disadvantage is a consequence of the accused’s own actions, not the delay in complaint: Jarrett v R at [62]; Cabot (a pseudonym) v R (No 2) at [71]. Misconduct of an accused may also be relevant under s 165B(3) as to whether there are “good reasons” not to give the direction: Cabot (a pseudonym) v R (No 2) at [73].
Any warning given under s 165B must not infringe s 294AA(1) Criminal Procedure Act which provides, inter alia, that the judge “must not direct a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses”. This prohibition includes “a direction to a jury of the danger of convicting on the uncorroborated evidence of any complainant”: s 294AA(2). Section 165 Evidence Act is “subject to” s 294AA: s 294AA(3). See also [3-615] at notes 4 and 5.
[5-080] Suggested direction — delay in complaint and forensic disadvantage to the accused
Note: The suggested direction should be modified so as to deal only with the actual and possible disadvantages encountered in the case at hand and omitting assumptions that may not be applicable.
There is a direction I must give you relating to this issue of the delay in [or absence of] any complaint being made by the complainant.
It is most important that you appreciate fully the effects of delay [or absence of complaint] on the ability of [the accused] to defend themself by testing prosecution evidence [or bringing forward evidence] in their own case, to establish a reasonable doubt about their guilt.
In this regard, I refer to the following specific difficulties encountered by [the accused] in testing the evidence of the prosecution [or in adducing evidence] in their own case … [these specific difficulties should be highlighted in such a way as to make it clear that delay, for which the accused had not been responsible, had created those difficulties. All additional significant circumstances require comment. These may include:
-
the delay in instituting the prosecution
-
the possibility of distortion in human recollection
-
the nature of the allegations
-
the age of the complainant at the time of the allegations having regard to the current and previous forms of ss 165A and 165B Evidence Act
-
the prosecution case is confined to the evidence of the complainant, and
-
any unusual or special features.]
These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence themself to establish a reasonable doubt about their guilt, or both.
The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.
Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that the complainant's memory for details would have been clearer. This may have enabled their evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. The complainant's inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the accused to throw doubt on their evidence by pointing to circumstances which may contradict [the complainant]. Had the accused learned of the allegations at a much earlier time [the accused] may have been able to recall relevant details which could have been used by their counsel in cross-examination of the complainant.
Another aspect of the accused’s disadvantage is that had [the accused] learned of the allegations at a much earlier time [the accused] may have been able to find witnesses or items of evidence that might have either contradicted the complainant or supported their case, or both. [The accused] may have been able to recall with some precision what [the accused] was doing and where [the accused] was at particular times on particular dates and to have been able to bring forward evidence to support [the accused].
You should also take into account that because of the delay the accused has lost the opportunity to bring forward evidence from [set out specific items of evidence lost or no longer available].
Because the accused has been put into this situation of significant disadvantage [the accused] has been prejudiced in the conduct of their defence. As a result, I direct you that before you convict the accused you must give the prosecution case the most careful scrutiny. In carrying out that scrutiny you must bear in mind the matters I have just been speaking about — the fact the complainant's evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support their defence.