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6
Court of Criminal Appeal 31 May 2002

R v SJB

[2002] NSWCCA 163

Also reported as 129 A Crim R 572
Sexual offences
SEXUAL OFFENCES DELAY IN COMPLAINT ABSENCE OF CORROBORATION "LONGMAN" DIRECTION REQUIREMENT FOR AND TERMS OF

Citation: R v SJB [2002] NSWCCA 163
Court: New South Wales Court of Criminal Appeal
Date: 31 May 2002
Judge(s): Sheller JA, Levine J, Simpson J

Background

The appellant was convicted in the Bega District Court of two counts of indecent assault and one count of sexual intercourse without consent under the Crimes Act 1900. The offences were alleged to have occurred in 1983 and 1984, when the complainant was aged 11 to 12. The appellant had been in a domestic relationship with the complainant's mother and had regularly cared for the children while the mother was at work.

The complainant, who was 29 at the time of the trial, gave evidence that she first disclosed the abuse to a friend when she was approximately 15, some three to four years after the alleged events. There was no corroboration of her account, and the appellant denied the conduct entirely. The trial judge admitted evidence of the prior consistent statement made to the friend, and summed up the case to the jury, but did not use the precise formulation required by the High Court in Longman v The Queen.

Following conviction on all three counts, the appellant received fixed terms of nine months on counts one and three, and eighteen months with a nine-month non-parole period on count two. He appealed against conviction only.

  • Whether the trial judge was required to give a full Longman direction in a case involving delayed complaint and absence of corroboration
  • Whether the trial judge's failure to use the specific words "dangerous to convict" in the jury direction constituted a miscarriage of justice
  • Whether the terms and formulation of a Longman direction, as evolved through subsequent authority, were satisfied by the direction actually given

Decision

The Court of Criminal Appeal held that the trial judge's summing-up, while comprehensive in many respects, was fatally deficient because it omitted the specific phrase "dangerous to convict." The Longman direction, as originally formulated by the High Court, requires a jury to be told in explicit terms that it would be dangerous to convict on the complainant's uncorroborated evidence alone, given the delay in complaint and the consequent prejudice to the accused's ability to defend himself.

Levine J, with whom Sheller JA and Simpson J agreed, identified four features of the trial that made a full Longman direction mandatory. The case involved uncorroborated evidence of historical sexual offending, a significant delay in complaint, circumstances where corroborating evidence would have been available at the time of the alleged events but was no longer, and a trial that ultimately reduced to the complainant's word against the appellant's denial on oath.

The Court acknowledged the difficult position trial judges face in this area of law. It accepted that a direction framed in terms of "danger to convict" may, in practice, carry a strong signal to the jury to acquit, a tension noted in earlier appellate authority and in the observations of Gleeson CJ in Doggett. Nonetheless, the Court held that the absence of those critical words meant the jury had not received the legally required warning, and a miscarriage of justice had occurred.

Orders Made

  • Appeal allowed
  • Convictions and sentences quashed
  • New trial ordered

Key Takeaways

  • A Longman direction is required where a trial involves delayed complaint, absence of corroboration, and historical sexual offending where exculpatory evidence has been lost to the passage of time.
  • The specific phrase "dangerous to convict" is not merely a suggested formulation; the Court of Criminal Appeal confirmed it is a mandatory element of the Longman direction as originally stated by the High Court in Longman v The Queen (1989) 168 CLR 79.
  • Where all other elements of an adequate Longman direction are present but the precise "dangerous to convict" language is absent, the omission alone is sufficient to establish a miscarriage of justice warranting the quashing of a conviction.
  • The Court expressed candid concern that the required direction, by flagging the danger of convicting, may effectively signal to a jury that it should acquit, placing trial judges in a difficult position when performing their duty impartially.
  • A separate but related point, noted though not formally decided, concerned whether the delay warning should state that the accused "has been" prejudiced rather than "might have been" prejudiced, with the Court indicating agreement with observations made in the earlier decision of R v BWT [2002] NSWCCA 60.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 61E
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 108(3)(b), 192

Cases
- Longman v The Queen (1989) 168 CLR 79
- Doggett v The Queen (2001) 182 ALR 1
- Crampton v The Queen (2000) 176 ALR 369
- M v The Queen (1994) 181 CLR 487
- Hoch v The Queen (1988) 165 CLR 292
- Jones v Dunkel (1959) 101 CLR 298
- Reg v BWT [2002] NSWCCA 60
- Reg v Greenham [1999] NSWCCA 8
- Reg v Williams [1999] NSWCCA 9
- Reg v Wickham NSWCCA 17 December 1991