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Court of Criminal Appeal 26 July 2002

R v SJF

[2002] NSWCCA 294

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES DELAY IN COMPLAINT

Citation: SJF v R [2002] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 26 July 2002
Judge(s): Stein JA, Greg James J, Howie J

Background

The appellant was convicted by a jury in the District Court of nine counts of child sexual assault offences against his stepdaughter. The offending spanned approximately eight years, beginning when the complainant was 11 years old and continuing until she was 18. The trial judge, Latham DCJ, imposed an aggregate sentence of ten years imprisonment with a non-parole period of six years.

The complainant first raised her allegations on 8 February 2000, speaking to her boyfriend's mother, and made a formal police complaint two days later. This meant there was a delay in complaint of almost seven years for the earliest counts and just one day for the last. The appellant was arrested shortly after the complaint was made, and the trial commenced in June 2001.

On appeal, the appellant did not challenge the factual findings or the sentence in any substantive way. The sole ground of appeal concerned the adequacy of the trial judge's directions to the jury about the significance of the complainant's delay in making her complaint.

  • Whether the trial judge's directions to the jury on delay in complaint were legally sufficient in the circumstances of this case
  • Whether the absence of a specific direction that it would be "dangerous to convict" on the counts involving lengthy delay constituted an error of law
  • Whether any error in the summing-up caused a miscarriage of justice, or whether the proviso under s 6 of the Criminal Appeal Act 1912 applied

Decision

Howie J, with whom Stein JA and Greg James J agreed, dismissed the appeal. His Honour found that the trial judge had given adequate warnings to the jury about the need for caution in approaching the complainant's evidence, even though those warnings did not use the precise language endorsed in Longman v The Queen (1989) 168 CLR 79, such as directing the jury that it would be "dangerous to convict."

The Court noted that the law does not require any particular form of words or the expression "dangerous to convict" in every case involving delay. The adequacy of a warning must be assessed in the context of the trial as a whole, including the nature of the evidence and the directions actually given.

Howie J also observed that trial counsel for the appellant had not requested any additional or more specific warning, including one drawing a distinction between the earlier counts (where delay was significant) and the later counts (where there was little or no delay). The failure to seek such a direction was consistent with a view that drawing such a distinction may not have assisted the defence.

Even if an error in the summing-up had been established, the Court would have applied the proviso under s 6, being satisfied that the appellant had not lost a real chance of acquittal as a result of the direction given. Rule 4 of the Criminal Appeal Rules also applied, and the Court was not persuaded there had been any miscarriage of justice.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence refused

Key Takeaways

  • No error was established in the trial judge's summing-up simply because she did not use the words "dangerous to convict" or direct the jury to scrutinise the complainant's evidence with special care in relation to the counts involving lengthy delay.
  • The Court of Criminal Appeal confirmed that the adequacy of a delay-in-complaint warning must be assessed in light of all the directions given and the circumstances of the particular trial, rather than by reference to a fixed formula.
  • Where trial counsel did not request a more specific or differentiated warning, that omission supported the conclusion that the summing-up as a whole was adequate.
  • In dismissing the appeal, the Court confirmed it would have applied the proviso under s 6 of the Criminal Appeal Act 1912 in any event, as the appellant had not lost a real chance of acquittal.
  • A distinction between counts with significant delay and counts with little or no delay may be open to a trial judge, but the absence of such a distinction does not automatically render a summing-up legally deficient.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4

Cases
- Longman v The Queen (1989) 168 CLR 79
- Crampton v R (2000) 176 ALR 369
- R v Johnston (1998) 45 NSWLR 362
- R v BWT [2002] NSWCCA 60
- R v WRC [2002] NSWCCA 210
- R v GPP [2001] NSWCCA 493
- R v Roddom [2001] NSWCCA 168
- R v SJB [2002] NSWCCA 163