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5
Court of Criminal Appeal 6 December 2001

R v GPP

[2001] NSWCCA 493

Also reported as 129 A Crim R 1
Sexual offences
CRIMINAL LAW SEXUAL OFFENCES INDECENT ASSAULT ATTEMPTED RAPE APPEAL AGAINST CONVICTION DELAY IN COMPLAINT

Citation: R v GPP [2001] NSWCCA 493
Court: NSW Court of Criminal Appeal
Date: 6 December 2001
Judge(s): Heydon JA; Wood CJ at CL; Carruthers AJ

Background

The appellant was convicted after a jury trial in the District Court on two counts: indecent assault and attempted rape. The alleged offences occurred in 1979 or 1980, when the complainant was approximately nine years old. The complainant said she first reported the events to her husband in 1991 and then to police in 1995, some fifteen or more years after the alleged conduct.

The trial took place in 1998. The appellant challenged both his convictions and the sentences imposed. The central complaint on appeal was that the trial judge failed to adequately direct the jury about the consequences of the significant delay between the alleged offending and the complaint.

  • Whether the trial judge was required to give a warning (known as a "Longman warning") about the forensic prejudice caused to the accused by the delay in complaint
  • Whether the content of the direction actually given was adequate
  • Whether the trial judge misdirected the jury on intent, on use of the complainant's evidence generally, on the relationship between the two counts, and on the significance of lies
  • Whether the jury's verdicts were unreasonable, unsafe, or unsatisfactory under s 6(1) of the Criminal Appeal Act 1912
  • Whether, even if error was established, the convictions should be upheld under the proviso to s 6(1) on the basis that no substantial miscarriage of justice had occurred
  • Whether a new trial or an acquittal was the appropriate remedy

Decision

The Longman warning: error established

Heydon JA, with whom Wood CJ at CL and Carruthers AJ agreed, held that the trial judge erred in law by failing to properly direct the jury about the forensic difficulties that the delay in complaint created for the appellant. Where delay causes forensic prejudice to the accused in the particular circumstances of a case, a warning must be given. Here, the lengthy gap between the alleged events and the complaint meant the appellant was unable to establish an alibi or raise other circumstantial doubts about the complainant's account. The trial judge commented on weaknesses in the complainant's evidence and the possible effect of delay on her recollection, but said nothing about the difficulties the delay created for the accused in meeting the allegations. That omission was a material error. The existence of some corroboration from the complainant's sister did not cure the deficiency.

Other grounds: no error found

The Court rejected the remaining grounds of appeal. The trial judge's direction to scrutinise the complainant's evidence carefully was not understated by his reference to it as a universal direction. The alleged misdirection on intent was also rejected: a passage of the complainant's evidence was to the substantive effect that she believed the appellant intended penetration, and the jury could have inferred that intent from it. A minor error about the time of day in the summing-up was described as a trivial slip. The directions concerning lies were characterised as relating to credibility rather than consciousness of guilt, and were therefore sufficient. The verdicts themselves were not unreasonable or unsafe: the evidence contained no such discrepancies, inadequacies, or lack of probative force as would raise a significant possibility that an innocent person had been convicted.

Proviso: not applied

The Court declined to apply the proviso to s 6(1), which permits an appeal to be dismissed where no substantial miscarriage of justice has actually occurred. For the proviso to apply, the conviction must have been inevitable despite the error. The Crown case was neither particularly weak nor particularly strong, and a properly directed jury would not inevitably have convicted. Accordingly, the appellant had lost a real chance of acquittal fairly open to him, and the proviso could not save the convictions.

Remedy: new trial ordered

The Court considered whether to acquit rather than order a retrial. Heydon JA weighed a range of factors, including the very considerable age of the case, the ordeal of a second trial for the appellant, the seriousness of the offences, the fact that the appellant had not yet served any part of the sentences imposed, and the circumstance that the error had arisen in part because defence counsel had not sought a proper direction at trial. The admissible evidence at the first trial was sufficiently cogent to justify a conviction, and the case was not factually defective. On balance, the Court exercised its discretion under s 8 of the Criminal Appeal Act 1912 to order a new trial rather than an acquittal.

Orders Made

  • The appeal is allowed.
  • The convictions are quashed.
  • A new trial is ordered.

Key Takeaways

  • A Longman warning is required not only where delay may have affected the complainant's recollection, but also where delay has caused forensic prejudice to the accused by preventing them from establishing an alibi or other circumstance capable of raising a reasonable doubt.
  • Partial compliance with the warning obligation is insufficient: a direction that focuses solely on the complainant's evidence, without addressing the difficulties delay may have created for the defence, does not meet the standard set by Longman v R (1989) 168 CLR 79 and affirmed in Crampton v R and Doggett v R.
  • Corroboration of the complainant's evidence does not automatically remedy a deficient delay direction; its effect on the adequacy of the warning must be assessed in the particular circumstances of the case.
  • The proviso to s 6(1) of the Criminal Appeal Act 1912 is unavailable where the Crown case is not so strong that a properly directed jury would inevitably have convicted, as the accused in such circumstances has lost a real chance of acquittal.
  • In exercising the discretion to order a new trial rather than an acquittal under s 8 of the Criminal Appeal Act 1912, relevant factors include the age and seriousness of the case, the strength of the evidence at the first trial, whether the case was factually defective, and the circumstances in which the trial error arose.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 6(1) and 8
- Evidence Act 1906 (WA)
- Evidence Act 1995 (NSW)

Cases
- Longman v R (1989) 168 CLR 79
- Crampton v R (2000) 75 ALJR 133
- Doggett v R (2001) 75 ALJR 1290
- Jones v R (1997) 191 CLR 439
- M v R (1994) 181 CLR 487
- Glennon v R (1994) 119 ALR 706
- Crofts v R (1996) 186 CLR 427
- Robinson v R (1999) 197 CLR 162
- Carr v R (1988) 165 CLR 314
- Kelleher v R (1974) 131 CLR 534
- Reid v R [1980] AC 343
- R v Johnston (1998) 45 NSWLR 362
- R v Roddom [2001] NSWCCA 168
- R v Stewart [2001] NSWCCA 260
- Bromley v R (1986) 161 CLR 315