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Court of Criminal Appeal 14 December 2001

Regina v BKK

[2001] NSWCCA 525

Sexual offences
CRIMINAL LAW AND PROCEDURE SEXUAL ASSAULTS DELAY PREJUDICE TO ACCUSED ACCUSED UNREPRESENTED AT TRIAL ILLNESS OF ACCUSED

Citation: Regina v BKK [2001] NSWCCA 525
Court: New South Wales Court of Criminal Appeal
Date: 14 December 2001
Judges: Spigelman CJ, Grove J, Sperling J

Background

The appellant was convicted in the District Court on all thirteen counts of sexual offences alleged to have been committed against an adopted daughter between 1987 and 1994. The trial ran for five to six weeks before Judge Morgan and a jury. The offences spanned a period when the complainant was aged approximately 12 to 20 years old.

A critical feature of the trial was that the appellant was unrepresented throughout. His cross-examination of the complainant extended over ten days and exceeded 500 pages of transcript. He did not give evidence himself.

The appellant's position at trial drew a clear line between two groups of counts. For counts 1 to 5 (approximately 1987 to 1990), he denied the alleged acts entirely. For counts 6 to 13 (approximately 1992 to 1994), he did not dispute that the acts occurred but contended the complainant had consented.

  • Whether the trial judge erred by failing to give the jury a Longman warning about the dangers of convicting on uncorroborated evidence after a significant delay in complaint
  • Whether the absence of a Longman direction affected all counts equally, or only those where delay and the nature of the issues made it necessary
  • Whether the trial was rendered unfair by the appellant's lack of legal representation and poor health
  • Whether the trial judge's directions on complaint, corroboration, character, and the appellant's failure to give evidence were adequate
  • Whether the sentences imposed were manifestly excessive

Decision

The Court allowed the appeal in part, drawing a clear distinction between the two groups of counts based on the nature of the issues at trial and the length of delay involved.

In relation to counts 1 to 5, a Longman direction was required and its absence constituted an error. Those counts alleged acts occurring when the complainant was aged 12 to 16, during the late 1980s to 1990. The sole issue on those counts was whether the acts had occurred at all. Given that substantial time had elapsed, and that the complainant was a child at the relevant time (raising the possibility of childhood fantasy as a concern identified in the case law), the risk that important extrinsic material had been lost over time could not be dismissed. The availability of a large amount of detailed circumstantial information at trial did not dispel that risk.

For counts 6 to 13, no Longman direction was required. The only issue on those counts was consent, not whether the acts occurred. Because the question of lost corroborating evidence was not live where the factual occurrence itself was conceded, the rationale for a Longman warning did not apply. Additionally, the complainant was aged 17 to 20 during those events, removing the concern about childhood fantasy. The Court confirmed this analysis by reference to R v Dixon and R v Green.

The Court reconvened to hear further argument after the High Court's decision in Doggett v The Queen was handed down during the appeal proceedings, given its potential relevance to the Longman question. After considering the majority and dissenting judgments in Doggett, the Court applied the principles to distinguish between the two groups of counts. Convictions and sentences on counts 1 to 5 were quashed and a new trial ordered on those counts. The matter was remitted to the District Court for resentencing on the remaining counts.

Orders Made

  • Appeal allowed in part
  • Convictions and sentences on counts 1 to 5 quashed
  • New trial ordered on counts 1 to 5
  • Matter remitted to the District Court for resentencing on the remaining counts (counts 6 to 13)

Key Takeaways

  • A Longman direction is not required in all delayed sexual assault cases as a matter of course; its necessity depends on whether delay could realistically have prejudiced the accused's ability to meet the specific issues actually in dispute at trial.
  • Where the only issue at trial is consent rather than whether the alleged acts occurred, the risk that lost evidence could have affected the outcome is materially reduced, and a Longman warning may not be required.
  • The distinction between "denial" counts (where occurrence itself is disputed) and "consent" counts (where occurrence is admitted) is a significant factor in assessing whether a Longman direction is necessary in a given trial.
  • Allegations involving a child complainant carry an additional consideration under the Longman framework, namely the possibility of childhood fantasy, which is absent where the alleged acts occurred during the complainant's adulthood.
  • The Court of Criminal Appeal confirmed that a large volume of circumstantial detail available to an accused at trial does not of itself displace the obligation to warn the jury where the passage of time may have caused other material evidence to be lost.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1980 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Longman v The Queen (1989) 168 CLR 79
- Doggett v The Queen [2001] 75 ALJR 1290
- R v Dixon [2001] NSWCCA 39
- R v Green [2001] SASC 25
- Crampton v The Queen [2000] 75 ALJR 133
- M v The Queen (1994) 181 CLR 487
- RPS v The Queen (2000) 199 CLR 620
- Azzopardi v The Queen [2001] 75 ALJR 931
- R v Kennedy (1997) 94 A Crim R 341
- GPP [2001] NSWCCA 493