Citation: R v Daryl Bruce Lewis [2003] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 4 July 2003
Judge(s): Santow JA; Sully J; Buddin J
Background
The appellant was tried in the District Court in February 2000 on nine counts of assault, rape, and indecent assault. The alleged offences were said to have occurred between January 1975 and March 1977, approximately 25 years before the trial. Both complainants and the appellant were juveniles at the time of the alleged events.
The two complainants were sisters. A third sister, who was not a complainant, gave evidence for the Crown. The appellant was convicted on all nine counts and sentenced to a total effective sentence of six years, to be served cumulatively on an existing sentence. The combined effect meant a minimum period of approximately 14.5 years' imprisonment.
The appellant appealed against conviction on numerous grounds, principally targeting errors in the admission of evidence and the adequacy of directions given to the jury.
Legal Issues
- Whether the trial judge erred in admitting evidence of indecent and other assaults as "relationship evidence," and whether the prejudicial effect of that evidence outweighed its probative value
- Whether the trial judge gave adequate directions to the jury regarding relationship evidence, including a "Murray direction" (a warning about the use and limits of such evidence)
- Whether the trial judge gave a proper "Longman direction," being a warning required in cases of delayed complaint about the difficulty of defending very old allegations
- Whether the trial judge erred in admitting statements by the third sister, M, and in allowing prejudicial cross-examination arising from that material
- Whether the trial judge erred in directing the jury that a contemporaneous complaint is evidence of the truth of its contents
- Whether count 1 was statute-barred under section 78 of the Crimes Act
- Whether the overall conduct of the trial resulted in a miscarriage of justice
Decision
The Court of Criminal Appeal found that the trial was fundamentally and pervasively flawed. A substantial body of inadmissible and highly prejudicial material had been led in evidence, much of it concerning the conduct of the appellant's mother and the household in which the parties lived. Santow JA observed that once this evidence was admitted, the trial was almost inevitably diverted into an extensive examination of entirely collateral issues. The jury was effectively asked to assess not only the charges against the appellant but also the conduct of his mother, findings about whom were likely to reflect adversely on him.
On the relationship evidence, the Court found that the trial judge had erred in admitting it without properly weighing its probative value against the risk of unfair prejudice. The directions given to manage that prejudice were inadequate, and no proper Murray direction was given. The statements of the third sister, M, introduced damaging material that went far beyond what could legitimately be received as relationship evidence, and her initial reluctance to give evidence in front of the jury compounded the prejudice.
The Longman direction, required in cases where an accused faces historic allegations and the passage of time hampers the defence, was not given adequately or with the necessary judicial endorsement. The Court also found error in the direction that a contemporaneous complaint is evidence of the truth of its contents. These failures, individually and cumulatively, constituted a miscarriage of justice.
In relation to count 1, the assault charge, the Court found it was statute-barred under the Crimes Act. Because no prosecution could validly have been brought, the appropriate outcome was acquittal rather than a retrial.
Orders Made
- Convictions on counts 2 to 9 quashed; new trial ordered on those counts.
- Conviction on count 1 quashed; verdict of acquittal entered on that count.
Key Takeaways
- The Court of Criminal Appeal confirmed that where inadmissible relationship evidence is admitted in volume and without adequate directions, the resulting prejudice may be so pervasive that no direction can cure it, warranting a new trial.
- A trial judge bears an independent responsibility to scrutinise and, where necessary, exclude highly prejudicial evidence, and cannot rely solely on the absence of objection from defence counsel to discharge that responsibility.
- Where delayed complaint allegations are tried many years after the alleged events, a full and properly endorsed Longman direction is essential; an inadequate or partial direction constitutes error.
- Under section 78 of the Crimes Act, a statutory bar on prosecution is a complete answer to a charge, and the appropriate remedy on appeal is acquittal rather than retrial.
- Allowing the trial to expand into extensive examination of collateral matters, including the conduct of persons other than the accused, risks fundamentally undermining the fairness of proceedings, particularly where those findings are liable to reflect adversely on the accused by association.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 61, 63, 76, 78
- Criminal Appeal Rules: Rule 4
Cases:
- R v Murray (1987) 11 NSWLR 12
- Wilde v The Queen (1987-1988) 164 CLR 350 (Longman direction principles)
- Gipp v The Queen (1998) 194 CLR 106
- Saraswati v The Queen (1990-91) 172 CLR 1
- R v BWT (2002) 54 NSWLR 241
- R v Beserick (1993) 30 NSWLR 510
- R v A H (1997) 42 NSWLR 702
- R v A N (2000) 117 ACrimR 176
- R v M M (2000) 112 ACrimR 519
- R v Clarke (2001) 123 ACrimR 506
- R v Pemble (1971) 134 CLR 107
- R v Fraser (CCA, 10 August 1998, unreported)
- R v Fordham (CCA, 2 December 1997, unreported)
- R v Etherington (1982) 32 SASR 230
- R v Meier (NSWCCA, 26 May 1996, unreported)
- R v H (NSWCCA, 24 October 1994, unreported)