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38
Court of Criminal Appeal 12 April 2002

Regina v B.W.T

[2002] NSWCCA 60

Also reported as (2002) 54 NSWLR 241
Sexual offences

Citation: Regina v B.W.T [2002] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 12 April 2002
Judges: Wood CJ at CL; Sully J; Dowd J

Background

The appellant was convicted in the District Court of sexual assault offences against a complainant who alleged abuse had occurred when she was a very young child. By the time the matter came to trial, many years had passed since the alleged events.

The trial judge directed the jury to scrutinise the complainant's evidence carefully, and acknowledged that delay had introduced vagueness and may have disadvantaged the accused in mounting a defence. No application for a re-direction was made by either party at trial.

On appeal, the appellant challenged the adequacy of that jury direction, arguing that it fell short of what the law required in cases involving substantial delay between an alleged offence and trial.

  • Whether the trial judge's direction to the jury was an adequate "Longman warning" in a case involving significant delay between the alleged offences and trial.
  • Whether it was sufficient for the trial judge to describe the consequences of delay in terms of what "may have" disadvantaged the accused, rather than what the delay "did" in fact cause.
  • Whether the direction was deficient by failing to use the language that it would be "unsafe" or "dangerous" to convict without scrutinising the evidence with great care.

Decision

The Court of Criminal Appeal held that the jury direction given at trial was inadequate. The core defect was that the judge framed the consequences of delay in consistently tentative language, repeatedly using "may have" when describing how the accused's ability to test the prosecution case had been impaired. The majority agreed that this failed to convey the actual forensic disadvantage the accused had suffered as a result of the delay.

The Court confirmed that, following the High Court's decision in Longman v The Queen (1989) 168 CLR 79, a proper warning must tell the jury that it would be "dangerous" to convict on the complainant's evidence alone unless, after scrutinising that evidence with great care and considering the relevant circumstances, the jury was satisfied of its truth and accuracy. A direction that merely invites the jury to consider things that "might" affect the weight of the evidence does not meet that standard.

Sully J (with whom Wood CJ at CL and Dowd J agreed) set out a summary of the directions now required in sexual assault cases where significant delay exists. His Honour also raised, in an addendum, the practical difficulties faced by trial judges attempting to navigate evolving appellate guidance on how and when such warnings must be given. These observations were not part of the formal holding but reflected genuine practical concern about the competing demands placed on trial judges in summing up to juries.

Orders Made

  • The appeal was allowed.
  • The convictions recorded and sentences passed in the District Court were quashed.
  • A new trial of the appellant was ordered.

Key Takeaways

  • A Longman warning in a delayed sexual assault prosecution must be framed in terms of "danger" or "unsafety" in convicting, not merely as an invitation to scrutinise evidence "carefully" or consider factors that "might" affect its weight.
  • Where delay has genuinely impaired an accused's ability to test the prosecution case, the direction must convey that the accused "did" suffer forensic disadvantage, not merely that disadvantage "may have" resulted.
  • The absence of any application for a re-direction at trial does not prevent an appellate court from finding that a misdirection occurred and ordering a new trial.
  • Sully J's addendum flagged the significant practical tension that trial judges face when attempting to reconcile multiple, sometimes competing, streams of appellate guidance on jury directions in sexual assault cases.
  • In quashing the convictions, the Court of Criminal Appeal reaffirmed that the Longman warning exists to protect the fairness of the trial, addressing a risk that may not be apparent to the jury without explicit judicial guidance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1906 (WA)
- Crimes Act 1958 (Vic)

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
- Crofts v The Queen (1996) 186 CLR 427
- Jago v District Court (NSW) (1989) 168 CLR 91
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- The Queen v Glennon [1992] 173 CLR 592
- Reg v Johnston (1998) 45 NSWLR 362
- Reg v Channell [2000] NSWCCA 289
- Reg v Zorad (1991) 19 NSWLR 91
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Wyong Shire Council v Shirt (1980) 146 CLR 40
- Various other NSW Court of Criminal Appeal decisions cited in the judgment