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Court of Criminal Appeal 28 May 2003

Regina v Mills

[2003] NSWCCA 145

Sexual offences
AGED 9 AT HEARING UNABLE TO GIVE SWORN EVIDENCE DELAY IN COMPLAINT IDENTIFIABLE INCIDENTS WHETHER WARNING AS TO DELAY REQUIRED LIMITED SUPPORTING EVIDENCE

Citation: Regina v Mills [2003] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 28 May 2003
Judges: Ipp JA, Buddin J, Smart AJ

Background

The appellant was convicted in the District Court on four counts arising from sexual offences against his former stepdaughter, who was under ten years of age at the time of each alleged incident. The offences spanned a period from December 1998 to November 2000 and included three counts of indecent assault and one count of sexual intercourse by digital penetration. The appellant had moved into the complainant's family home in 1996 and married her mother in November 1998.

The complainant was nine years old at the time of the trial in August 2001. Because the trial judge was not satisfied she fully understood the obligation to give truthful evidence, she gave unsworn evidence via closed-circuit television, including through the replay of a recorded police interview. Her evidence formed the core of the Crown case, with limited supporting evidence from other sources.

The complainant did not disclose the conduct to her mother until January 2001, during a holiday in New Zealand. That disclosure was only partial at the time. The appellant was not informed of the complaints until February 2001. At trial, the jury acquitted the appellant on three counts relating to an earlier period in 1998 and convicted him on the four remaining counts.

  • Whether the trial judge's summing-up was insufficient because it failed to give an adequate warning about the complainant's delay in reporting the alleged offences
  • Whether the directions given to the jury adequately addressed the risks arising from the complainant's age, the frailty of childhood memory, and her inability to give sworn evidence

Decision

The sole ground of appeal was that the trial judge erred by giving an inadequate direction on delay in reporting. The Court of Criminal Appeal, in reasons delivered by Smart AJ (with Ipp JA and Buddin J agreeing), rejected this ground and dismissed the appeal against conviction.

The Court considered whether the circumstances required a direction of the kind mandated by the High Court in Longman v The Queen and its progeny. The Court found that this was not such a case. The delay in complaint, while measured in months and up to approximately two years for the earlier incidents, did not in the circumstances give rise to identifiable or specific disadvantage to the appellant in meeting the charges or conducting cross-examination. The incidents were discrete and sufficiently particularised, and no specific prejudice from the delay was raised at trial.

The Court acknowledged that specific directions were nonetheless required because of the complainant's age at the time of the events, her inability to give sworn evidence, the delayed and partial disclosure, and the Crown case resting substantially on her unsworn evidence. The Court found that, read as a whole, the summing-up adequately addressed those matters and amounted in substance to appropriate warnings, even if not framed in the exact terms prescribed in the Longman line of cases.

The Court also noted that experienced counsel for the appellant had not sought any further directions on delay when invited to address the trial judge on that question. The defence at trial had focused its challenge on alleged animosity by the complainant's mother and the possibility of fantasy on the part of the complainant, both of which the trial judge adequately addressed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Longman line of directions on delay does not apply automatically in every case involving delayed complaint; the circumstances must give rise to actual or identifiable disadvantage to the accused before such a direction is required.
  • Where a child complainant is of very young age, gives unsworn evidence, and the Crown case rests substantially on that evidence, the trial judge must give specific directions addressing the complainant's age and the frailty of childhood memory.
  • Delay measured in months to approximately two years was not, in the circumstances of this case, sufficient to require a formal Longman-style warning where the incidents were identifiable and particularised and no specific prejudice from delay was demonstrated.
  • In dismissing the appeal, the Court took note that experienced defence counsel had not requested additional directions on delay when given the opportunity to do so at trial, though it noted this was not itself decisive.
  • A summing-up is assessed as a whole; individual omissions or imprecisions may not constitute appealable error where the overall effect of the directions adequately instructs the jury on the relevant risks.

Legislation and Cases Referenced

Cases:
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343

Legislation: No legislation was cited in this decision.