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Court of Criminal Appeal 3 June 2002

Regina v GEA

[2002] NSWCCA 222

Also reported as (2002) 131 A Crim R 54
Sexual offences
CRIMINAL LAW: APPEAL AGAINST CONVICTION SEXUAL OFFENCES

Citation: Regina v GEA [2002] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 3 June 2002
Judge(s): Hidden J, Heydon JA, Blanch AJ

Background

The appellant was the stepfather of the complainant. He was tried in the District Court on an indictment containing six counts of sexual offences, including fellatio, attempted anal penetration, and acts of gross indecency, said to have occurred between late 1986 and early 1992 when the complainant was in late primary school and early high school.

No complaint was made until 1997, when the complainant told his mother. Police were not notified until 1998. By the time of the first complaint, approximately eleven years had passed since the earliest alleged offence and five and a half years since the most recent.

The appellant was found guilty on all counts at a second District Court trial (the jury at the first trial acquitted on some counts and could not agree on the remainder). He appealed against his conviction, with the central argument focusing on the adequacy of the trial judge's directions to the jury about the delay in complaint.

  • Whether the trial judge's warning to the jury about the delay in complaint met the requirements established in Longman v The Queen (1989) 168 CLR 79, as subsequently developed in Crampton v The Queen (2000) 176 ALR 369 and Doggett v The Queen (2001) 182 ALR 1
  • Whether any inadequacy in the direction was sufficiently serious to require the convictions to be quashed
  • Whether, if convictions were quashed, the Court should enter verdicts of acquittal rather than order a new trial

Decision

The Court of Criminal Appeal held unanimously that the trial judge's direction on delay was inadequate and that the convictions had to be quashed. The trial judge had addressed the passage of time in general terms, noting that memories fade, investigation had been made difficult, and evidence "may be unreliable." The Court found this fell short of what the law requires.

Drawing on the detailed analysis of Longman, Crampton, and Doggett set out by Sully J in the earlier Court of Criminal Appeal decision of Regina v BWT [2002] NSWCCA 60, Hidden J identified the core requirements of a proper Longman direction. The warning must be framed explicitly as a warning, not merely a comment or caution. It must convey that the complainant's evidence cannot be adequately tested after such a passage of time, that it would therefore be dangerous to convict on that evidence alone, that the jury may still convict if satisfied of the truth and accuracy of the evidence after careful scrutiny, and that the scrutiny must take serious account of circumstances peculiar to the case.

Critically, the trial judge had not warned the jury of the danger of convicting arising from the delay or the need for careful scrutiny of the complainant's evidence. The judge also failed to direct the jury on the effect of delay on the reliability of a youthful complainant's recollection, a matter Hidden J considered especially important in the circumstances. These omissions were sufficient to require the convictions to be set aside.

On the question of remedy, the appellant urged the Court to enter acquittals rather than order a new trial, pointing to the procedural history, his time on bail, and the fifteen months of imprisonment already served. The Court declined, finding the allegations were serious and the portion of the sentence served did not justify foreclosing a further trial.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • New trial ordered

Key Takeaways

  • A Longman direction in sexual offence trials involving significant delay in complaint must be framed explicitly as a warning carrying the court's own authority, not merely as a comment drawing on jurors' common sense.
  • The direction must cover, in substance: that the complainant's evidence cannot be adequately tested due to the passage of time; that it would be dangerous to convict on that evidence alone; that the jury may nonetheless convict if satisfied of its truth and accuracy after careful scrutiny; and that the scrutiny must account for circumstances particular to the case.
  • Failure to warn the jury of the danger of conviction arising from delay, and failure to address the effect of delay on youthful recollection, constituted error sufficient to quash the convictions.
  • The Court of Criminal Appeal declined to substitute verdicts of acquittal despite a procedural history including a prior inconclusive trial and a period of imprisonment already served, holding that the seriousness of the allegations made a new trial appropriate.
  • Inadequacy of a Longman direction is not excused by the fact that the delay is shorter, or the complainant older, than in comparable decided cases; the obligation to give an adequate direction arises from the circumstances of the particular trial.

Legislation and Cases Referenced

Cases:
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) 176 ALR 369
- Doggett v The Queen (2001) 182 ALR 1
- Regina v BWT [2002] NSWCCA 60

Legislation: No specific legislation was cited in the provided text.