Citation: R v Roberts [2001] NSWCCA 163
Court: New South Wales Court of Criminal Appeal
Date: 5 October 2001
Judge(s): Giles JA, Howie J, Carruthers AJ
Background
The appellant was convicted in the District Court on seven counts of sexual offences against a male complainant, alleged to have occurred between 1976 and 1978 when the complainant was between seven and ten years old. The charges included indecent assault, buggery, and procuring an act of indecency. The appellant received an effective sentence of ten years imprisonment with a non-parole period of seven years.
The complainant did not report the alleged offending to authorities until 1997, approximately 20 years after the events in question. The trial itself took place in late 2000, a further three years later. The complainant explained the delay by reference to the appellant being a father figure and authority figure, and later by fear instilled by the appellant's threats.
The Crown also called two other witnesses (referred to as Dean and Brett) who gave evidence of similar sexual abuse. The jury was directed on the use of this tendency and coincidence evidence, and on the potential unreliability of evidence given by young children. However, the trial judge gave no direction to the jury about the dangers arising specifically from the very long delay between the alleged events and the complaint.
Legal Issues
- Whether the trial judge was required to give a direction (known as a "Longman direction") warning the jury of the dangers of convicting on uncorroborated evidence where a significant delay in complaint had occurred, making it difficult for the accused to respond.
- Whether the appeal could succeed on this ground given that neither the Crown nor defence counsel had requested such a direction at trial.
- Whether the failure to give the direction constituted a fundamental error in the conduct of the trial.
Decision
The Court of Criminal Appeal allowed the appeal, finding that a Longman direction was required in these circumstances. The principle established in Longman v The Queen (1989) 168 CLR 79 requires a trial judge to warn the jury of the dangers of convicting on the uncorroborated evidence of a complainant where the delay in complaint has prejudiced the accused's ability to mount a defence. With approximately 20 years between the alleged events and the complaint, and a further three years before trial, the Court found that the absence of such a direction was a fundamental error.
The Court addressed the complication that neither counsel had raised the issue at trial. Defence counsel had, in fact, taken a deliberate position at trial that he would not make anything of the delay in complaint. The Court nonetheless concluded that the failure to give the direction was so fundamental that the conviction could not stand, regardless of whether the error had been objected to at the time.
The Court was critical of both Crown and defence counsel for failing to discharge their obligations to the trial court. Several members of the Court noted that this pattern, convictions being quashed on appeal on points never raised at trial, had become a matter of serious public concern in sexual assault cases. Carruthers AJ specifically called on trial judges to routinely ask counsel, in the jury's absence at the end of a summing-up, whether any required directions or warnings had been omitted.
The Court also noted that the question of whether a reasonable jury would inevitably have convicted does not arise where the trial error is fundamental in nature. Given the centrality of the complainant's uncorroborated evidence and the extreme delay, the Court was not prepared to characterise the missing warning as anything other than fundamental.
Orders Made
- Appeal allowed.
- Convictions and sentences quashed.
- New trial ordered.
Key Takeaways
- A Longman direction, warning the jury of the dangers of convicting on delayed and uncorroborated complaint evidence, is required where the accused's ability to answer the allegations has been materially prejudiced by the length of the delay between the alleged offending and the complaint.
- Where the failure to give a required direction is fundamental to the conduct of the trial, the absence of any objection or request by counsel at trial does not prevent the Court of Criminal Appeal from upholding the appeal.
- Both Crown and defence counsel carry an obligation to assist the trial court in ensuring that all legally required directions are given; failing to raise an omitted direction at trial, and then raising it only on appeal, was criticised as inconsistent with counsel's duty to the court.
- The Court of Criminal Appeal confirmed the practice recommended by Carruthers AJ: trial judges should invite submissions from counsel, in the jury's absence, at the conclusion of the summing-up, to check whether any required directions have been omitted.
- Sufficient prejudice from delay can exist even where a complainant explains why the report was not made earlier; the explanation for delay goes to the complainant's credit but does not remove the need for the jury to be warned about the structural difficulties delay creates for the accused's defence.
Legislation and Cases Referenced
Cases cited:
- Longman v The Queen (1989) 168 CLR 79 (the principal case establishing the warning requirement)
- Wilde v The Queen (1987–1988) 164 CLR 365
- Crampton v The Queen (2000) 176 ALR 369
- Doggett v The Queen (2001) 75 ALJR 1290
- R v Abusafiah (1991) 24 NSWLR 531
- R v Aziz (1982) 2 NSWLR 322
- R v Clarke (1995) 78 A Crim R 226
- R v DH [2000] NSWCCA 360
- R v Fordham (1997) 48 A Crim R 359
- R v Fuge [2001] NSWCCA 208
- R v Johnston (1998) 45 NSWLR 362
- R v Mahoney (2000) 114 A Crim R 130
- R v Melville (1956) 73 WN 579
- R v Parker (1974) 1 NSWLR 14
- R v Roddom [2001] NSWCCA 168
- R v The King [2000] NSWCCA 507
- R v Tripodina (1988) 35 A Crim R 183
- Whittaker (1993) 68 A Crim R 476
Rules:
- Rule 4, Criminal Appeal Rules (NSW)