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Court of Criminal Appeal 1 June 1999

R v CRAMPTON

[1999] NSWCCA 130

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES FAILURE TO COMPLAIN WHETHER DIRECTIONS ADEQUATE CRIMINAL LAW SEXUAL OFFENCES

Citation: R v Crampton [1999] NSWCCA 130
Court: Court of Criminal Appeal, New South Wales
Date: 1 June 1999
Judges: Wood CJ at CL, Barr J, Greg James J

Background

The appellant was a primary school teacher who taught children with learning difficulties. Two of his former pupils alleged he had committed acts of indecency and indecent assault against them in a storeroom adjoining their classroom, during the 1978 school year.

The appellant was charged with five counts relating to the two complainants. The jury convicted him on the first count (an act of indecency against one complainant) but was unable to reach a verdict on the remaining four counts. He appealed against the single conviction.

A significant feature of the case was the substantial delay in complaint: the first complainant did not come forward until 1997, approximately 19 years after the alleged events. The second complainant only made a complaint after police approached him following the first complainant's report.

  • Whether the trial judge's directions to the jury about the complainants' failure to complain were adequate, particularly in light of the resulting disadvantage to the defence
  • Whether a Jones v Dunkel direction (requiring explanation for the failure to call available evidence) was necessary given that neither complainant corroborated the other
  • Whether the trial judge was required to direct the jury that a reasonable doubt on one count could be taken into account when considering any other count relating to the same complainant

Decision

On the first ground, the Court found that the trial judge's directions were adequate when the summing-up was read as a whole. Her Honour had directed the jury to scrutinise the complainants' evidence carefully, to consider the difficulties of recalling events from childhood, to account for the complainants' status as former slow learners, and to weigh the disadvantage suffered by the defence due to the passage of time. No particular form of words is required to convey the need for caution, and the directions given were held to satisfy that requirement.

On the second ground, the Court rejected the argument that a Jones v Dunkel direction was needed. That direction concerns the failure to call a witness who might be expected to give relevant evidence. Here, neither complainant could corroborate the other because each could only speak to events they personally witnessed. The Court found there was no proper basis to instruct the jury to draw an adverse inference from the absence of mutual corroboration between the two complainants.

On the third ground, the Court refused leave to appeal. No such direction had been sought at trial, and trial counsel's affidavit confirmed this was not a tactical decision. The Court noted that if such a direction had been given, fairness to the Crown would have required a balancing direction about the implications of a guilty finding on one count for other counts. Together, those additional directions would have complicated a clear summing-up without materially assisting the appellant. The Court also cited the principle, drawn from R v Mitchell, that a standard direction to consider each count separately is not inconsistent with the jury considering the totality of the evidence across counts.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • No prescribed form of words is required for a warning about delayed complaint in sexual offence trials; the adequacy of the direction is assessed by reading the summing-up as a whole.
  • A Jones v Dunkel direction does not arise simply because two complainants in the same proceeding did not corroborate each other; that direction applies to the unexplained failure to call an available witness, not to limits on what a witness can personally attest to.
  • Standard directions to consider each count separately are not inconsistent with a jury weighing the totality of evidence across multiple counts, as confirmed by the Court of Criminal Appeal in R v Mitchell.
  • Refusing leave to appeal on the multi-count direction ground, the Court observed that the remedy sought would have required a countervailing direction protecting the Crown's position, making the net benefit to the appellant doubtful.
  • Where no direction is requested at trial for reasons unrelated to tactics, the absence of that direction will not readily found a ground of appeal, particularly where the overall summing-up was clear and fair.

Legislation and Cases Referenced

Cases:
- R v Johnston, Court of Criminal Appeal, 31 July 1998 (unreported)
- Longman v The Queen (1989) 168 CLR 79
- Jones v The Queen (1997) 149 ALR 598
- R v Murray (1987) 11 NSWLR 12
- R v Mitchell, Court of Criminal Appeal, 5 April 1995 (unreported)

Legislation: No specific legislation was cited in the judgment or metadata.