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6
Court of Criminal Appeal 1 July 2002

Regina v SMR

[2002] NSWCCA 258

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULTS COGENCY OF FINGERPRINT EVIDENCE WHETHER LONGMAN DIRECTION REQUIRED

Citation: Regina v SMR [2002] NSWCCA 258
Court: New South Wales Court of Criminal Appeal
Date: 1 July 2002
Judge(s): Mason P, Hidden J, Carruthers AJ

Background

The appellant, a young man aged seventeen at the time of the alleged offences, was convicted in the Griffith District Court on five sexual offences committed against an 82-year-old woman in her Deniliquin unit in the early hours of 9 August 1998. The intruder entered her home, brandished a knife, threatened her life and the lives of her children, and committed multiple acts of indecency and sexual intercourse without consent before leaving.

A critical piece of Crown evidence was fingerprint evidence linking the appellant to a library book found at the scene. The book had been borrowed from the Deniliquin library by the complainant and, on the Crown's case, the appellant's fingerprints could not have been deposited on it more than four weeks before it was found. The Crown excluded any rational explanation for the fingerprints other than the appellant's presence at the scene during the commission of the offences.

Following conviction and sentencing to a total of eight years imprisonment with a non-parole period of four years, the appellant brought ten grounds of appeal, including a challenge to the cogency of the fingerprint evidence, a complaint that the trial judge failed to give a Longman direction (a warning to the jury about the danger of acting on uncorroborated evidence in certain circumstances), and an application to admit fresh evidence from an independent fingerprint expert.

  • Whether the fingerprint evidence was cogent and properly relied upon by the Crown
  • Whether the trial judge was required to give a Longman direction warning the jury about the risks associated with the evidence
  • Whether fresh evidence from an independent fingerprint expert, Mr Nesbitt, should be admitted on appeal
  • Whether the proposed fresh evidence, if admitted, could reasonably have affected the jury's verdict

Decision

The Court dismissed all grounds of appeal, with Carruthers AJ delivering the principal judgment, with which Mason P and Hidden J agreed.

On the fingerprint evidence, the Court found it was properly before the jury and adequately supported the Crown case. The Crown's expert had examined the latent print at the crime scene, giving that expert an advantage that the appellant's proposed fresh expert expressly conceded. The court found no error in the way the evidence was put to the jury or in the jury's acceptance of it.

On the question of a Longman direction, the Court found no obligation arose on the facts. A Longman direction is a warning required where the circumstances of delay or other factors create a specific danger of injustice if the jury acts without caution. The Court was not persuaded that the circumstances of this trial attracted that requirement.

On the fresh evidence application, the Court applied the established tests: whether the evidence could have been obtained with reasonable diligence before trial, and whether, if believed, it would be likely to produce a different verdict. The Court concluded that the proposed evidence failed on the second limb. The expert himself conceded the scene examination advantage held by the Crown's expert, and the longevity of fingerprints on a frequently handled library book was inherently limited. Critically, one of three scenarios the appellant's own proposed expert identified as consistent with how the fingerprints were deposited precisely matched the Crown's account of the offence.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that fresh fingerprint evidence will not be admitted on appeal where, even if believed, it would not reasonably have led the jury to a different verdict.
  • A proposed expert who concedes that the Crown's expert held a material advantage, namely direct examination of the latent print at the crime scene, undermines the persuasive force of any competing opinion on appeal.
  • The Longman direction is not automatically required in sexual assault proceedings; it arises only where specific circumstances create a particular danger of injustice if the jury acts without a cautionary warning.
  • Where an appellant's own fresh evidence expert identifies a scenario that is entirely consistent with the Crown case, that evidence does not clear the threshold of being "likely to produce a different verdict."
  • The court did not need to finally decide whether the proposed expert evidence qualified as "fresh evidence" in the technical sense, because it failed the separate and equally demanding test of likely impact on the verdict.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61J(1), 61L, 61N(2), 61P

Cases:
- Longman v The Queen (1989) 168 CLR 79
- Azzopardi v The Queen (2001) 75 ALJR 931
- Bromley v The Queen (1986) 161 CLR 315
- Carr v The Queen (1988) 165 CLR 314
- Craig v The King (1933) 49 CLR 429
- Gallagher v The Queen (1985-86) 160 CLR 371
- Green v The King (1939) 61 CLR 167
- Jago v District Court (NSW) (1989) 168 CLR 23
- Weissensteiner v The Queen (1993) 178 CLR 217
- R v Baartman [2000] NSWCCA 298
- R v Richards [2002] NSWCCA 38
- R v Peel (1999) 2 Qd R 400
- R v McIntee (1985) 38 SASR 432
- Moreshead v Police [1999] SASC 162
- Parker v The King (1912) 14 CLR 681
- R v Castleton (1909) 3 Cr App R 74