AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 27 July 2001

REGINA v MURRE

[2001] NSWCCA 286

Sexual offences
SEXUAL ASSAULT COMPLAINT TO POLICE 25 YEARS LATER APPROPRIATE DIRECTIONS CONTENT OF LONGMAN DIRECTION

Citation: Regina v Murre [2001] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 27 July 2001
Judges: Giles JA, Hulme J, Adams J

Background

The appellant, a former teacher, was convicted at a second trial in the District Court of a sexual assault alleged to have occurred in winter 1972. The complainant was 13 years old at the time and the appellant was 22. The alleged offence took place during a camping trip with other students in the Mittagong area, where it was alleged the appellant indecently assaulted the complainant while he slept.

The complainant did not report the matter to police until 1997, approximately 25 years after the alleged incident. The appellant's first trial ended with a hung jury. Following conviction at the second trial, he was sentenced to 15 months imprisonment, suspended on conditions.

On appeal to the Court of Criminal Appeal, the appellant challenged the adequacy of the trial judge's directions to the jury regarding the dangers of convicting on evidence affected by long delay, commonly known as a Longman direction.

  • Whether the trial judge's directions to the jury adequately warned them of the dangers of convicting on the complainant's evidence given the 25-year delay between the alleged offence and complaint to police
  • Whether the directions given sufficiently addressed the specific prejudice suffered by the appellant as a result of that delay
  • Whether a verdict of acquittal should be entered rather than a new trial ordered

Decision

Adams J (with whom Giles JA and Hulme J agreed) found that the trial judge's directions were so fundamentally flawed as to constitute a miscarriage of justice. A Longman direction, drawn from the High Court's decision in R v Longman (1989) 168 CLR 79, requires the jury to be specifically warned that it is dangerous to convict on the uncorroborated evidence of a complainant where long delay has made it impossible for the accused to adequately respond to the allegations.

The court found that the directions given did not properly articulate the real and specific prejudice caused to the appellant by the delay. In particular, the directions failed to identify, with sufficient particularity, the categories of evidence that had been lost or rendered unavailable as a result of the passage of 25 years: records, diaries, and the inability of the prosecution to identify the location of the alleged offence were all matters that should have been squarely put to the jury.

The court also noted the absence of any adequate instruction that the jury could not be satisfied beyond reasonable doubt unless they were first satisfied the appellant had no real answer to the complaint that was unavailable due to the delay. The directions, as given, left the jury without the critical analytical framework needed to approach such a case safely.

On the question of a retrial, the court declined to order one. This was the appellant's second trial, the alleged offence had occurred 29 years earlier, the sentence had been substantially served under a flawed conviction, and the prospects of conviction at a third trial were considered at least doubtful given the significant evidentiary deficiencies, including the inability to locate the campsite, lost records, and concerns about possible contamination of witness testimony.

Orders Made

  • Conviction quashed
  • Judgment and verdict of acquittal entered
  • No new trial ordered

Key Takeaways

  • A Longman direction must do more than generically warn about delay. It must specifically identify the actual prejudice the accused has suffered as a result of the delay, including particular evidence that has been lost or rendered unavailable.
  • Where a complainant in a sexual assault matter waited 25 years before reporting to police, the trial judge was required to direct the jury that it would be dangerous to convict unless satisfied the accused had no real answer to the complaint that was unavailable only because of that delay.
  • Flawed jury directions on the Longman warning, where they fail to identify the specific forensic disadvantage suffered by the accused, can constitute a miscarriage of justice sufficient to quash a conviction.
  • In determining whether to order a retrial, the Court of Criminal Appeal weighed the cumulative effect of a second hung jury or acquittal, the age of the alleged offence (29 years), the substantially served sentence, and significant doubts about the evidentiary foundation for conviction.
  • The Court of Criminal Appeal confirmed that entering a verdict of acquittal, rather than ordering a retrial, is an available and appropriate remedy where the prospects of conviction on a further trial are doubtful and the circumstances make a third trial unjust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 81
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- R v Longman (1989) 168 CLR 79 (High Court)
- Crampton v The Queen [2000] HCA 60; (2000) 117 A Crim R 222
- R v CPK (unreported, NSWCCA, 21 June 1995)
- R v Eishauer (unreported, NSWCCA, 19 September 1997)