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Court of Criminal Appeal 19 December 2001

REGINA v FOLLI

[2001] NSWCCA 531

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION LEAVE TO APPEAL AGAINST SENTENCE INDECENT ASSAULT SEXUAL INTERCOURSE WITHOUT CONSENT COMPLAINANTS BROTHERS

Citation: Regina v Folli [2001] NSWCCA 531
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2001
Judge(s): Mason P, Sperling J, McClellan J

Background

The appellant, a religious brother who had taught at a Sydney Catholic school, was convicted in the District Court on multiple counts of indecent assault and sexual intercourse without consent against two brothers (the complainants). The offending was alleged to have occurred between 1980 and 1983, when the complainants were aged between approximately 10 and 15. The appellant had been a close family friend who regularly stayed at the complainants' home and eventually lived with the family for a period.

The complainants did not report the alleged offending until they were adults in their early thirties, meaning there was a delay of more than 17 years between the alleged events and their complaints to authorities. The appellant was tried before Judge Gibson and a jury in November 2000, and sentenced on 21 December 2000 to a total of nine years' imprisonment with a non-parole period of six years and nine months.

The appellant appealed against conviction and sought leave to appeal against sentence, with the central ground of appeal concerning the adequacy of the trial judge's direction to the jury about the significance of the lengthy delay in complaint.

  • Whether the trial judge was required to give a full Longman warning (a specific direction about the dangers of convicting on uncorroborated evidence in cases of delayed complaint) rather than merely making a comment on the delay.
  • Whether the failure to give an adequate Longman warning constituted a fundamental misdirection sufficient to warrant setting aside the conviction.
  • Whether the Crown could rely on the proviso (the principle that a conviction should stand despite a misdirection if the verdict was inevitable) given the strength of the Crown case, including the appellant's admissions in his records of interview.

Decision

The Court of Criminal Appeal held that the circumstances of the case plainly required a full Longman warning rather than a mere comment on the delay. The Longman warning is a direction designed to alert the jury to the genuine forensic disadvantage suffered by an accused when allegations arise from events many years past. In such cases, the accused may be unable to gather, test, or present evidence capable of challenging the complainant's account, simply because the passage of time has erased the ability to recall relevant information.

The Court found the trial judge's direction was fundamentally flawed. The direction given fell well short of what was required to properly inform the jury of the dangers associated with acting on evidence of events alleged to have occurred over 17 years earlier in circumstances that were effectively oath against oath.

The Crown argued that the Court should apply the proviso and uphold the conviction, pointing particularly to the appellant's admissions in his records of interview as rendering a conviction inevitable. The Court rejected that argument. While acknowledging the Crown case was strong, the Court held it could not be said a conviction was inevitable, and that the fundamental nature of the misdirection meant a miscarriage of justice could not be excluded.

Orders Made

  • Appeal allowed.
  • Conviction and sentence set aside.
  • New trial ordered.

Key Takeaways

  • A Longman warning, which specifically directs a jury on the danger of convicting where an accused has been forensically disadvantaged by the long passage of time, is required in appropriate cases and cannot be replaced by a mere judicial comment on delay.
  • Where a delay of more than 17 years separates the alleged offending from the complaint, and the case turns substantially on competing accounts from complainant and accused, the conditions calling for a full Longman warning are clearly engaged.
  • The proviso does not rescue a fundamentally flawed direction simply because the Crown case appears strong on other evidence. The Court of Criminal Appeal confirmed that it must be impossible to conclude that any miscarriage eventuated before the proviso can apply.
  • The accused's forensic disadvantage in delayed complaint cases encompasses not only the inability to locate witnesses or evidence, but also the inability to recall information that might otherwise have been gathered, tested, and deployed in defence.
  • In any future trial on a similar indictment, the Court noted that proper directions on the limited use of one complainant's evidence when considering counts relating to the other complainant would be expected from both counsel and the trial judge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 81, 61D(1) (now repealed)

Cases:
- Longman v The Queen (1989) 168 CLR 79
- Crofts v The Queen (1996) 186 CLR 427
- The Queen v Johnston (1998) 45 NSWLR 362
- Crampton v The Queen (2000) 75 ALJR 133
- Doggett v The Queen (2001) 75 ALJR 1290
- R v GPP [2001] NSWCCA 493
- R v Folli [2000] NSWCCA 460 (interlocutory decision)