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Court of Criminal Appeal 18 December 2003

REGINA v PERCIVAL

[2003] NSWCCA 409

Sexual offences
CONVICTION APPEAL SEXUAL ASSAULT EFFECT OF LONG DELAY SUFFICIENCY OF DIRECTIONS CONVICTION QUASHED

Citation: Regina v Percival [2003] NSWCCA 409
Court: New South Wales Court of Criminal Appeal
Date: 18 December 2003
Judge(s): Sully J, Greg James J, Adams J

Background

The appellant was convicted in the District Court on two counts of indecent assault and one count of carnal knowledge arising from alleged offences against two complainants. The alleged offending occurred in the early 1970s and mid-1980s respectively, meaning one complainant did not report the matter to police until approximately 1997, some sixteen years after the alleged events. The other complaint concerned conduct said to have occurred almost thirty years before the trial.

In both cases, the prosecution case rested substantially on the uncorroborated testimony of the complainants. The appellant denied the allegations in a statement made to police. The jury returned guilty verdicts on 1 June 2001 following a trial in late May of that year.

The appellant challenged his convictions on appeal to the Court of Criminal Appeal, arguing that the trial judge's directions to the jury on the effect of delay were legally insufficient.

  • Whether the trial judge's directions adequately explained the forensic disadvantage imposed on the accused by the lengthy delay between the alleged offending and trial
  • Whether the directions correctly identified the kinds of evidence that delay may have deprived the accused of, and the standard to which that deprivation was relevant
  • Whether the convictions could stand in light of any identified misdirection, and if not, whether a retrial was appropriate

Decision

The Court of Criminal Appeal found that the trial judge's directions on delay were significantly inadequate in two respects. First, the directions framed the accused's forensic disadvantage in tentative terms, stating that delay "may have resulted" in difficulties, when the proper direction was that delay "did" create difficulties and that the accused "was," rather than "may have been," deprived of the opportunity to call additional witnesses.

Second, and critically, the directions told the jury that delay may have prevented the accused from producing evidence showing the complainant's account "could not possibly be true." The Court found this materially misstated the relevant forensic task. The appropriate direction was one that identified evidence which might have given rise to a reasonable doubt, not evidence that would have established impossibility. In the context of these allegations, evidence capable of proving impossibility was almost never likely to exist, meaning the jury would have correctly dismissed that consideration as irrelevant.

The Court also criticised both defence and Crown counsel for failing to seek correction of the inadequate directions at trial. Adams J observed that the Crown, as much as the defence, carries responsibility to ensure directions are legally sound, even where an error may appear to favour the prosecution.

On the question of a retrial, the Court determined that the evidence in both matters was sufficiently uncertain that ordering a new trial was inappropriate in all the circumstances. The appeal was upheld on both counts and verdicts of acquittal were entered.

Orders Made

  • Appeal upheld
  • Convictions quashed
  • Verdicts of acquittal entered

Key Takeaways

  • A direction on delay in historical sexual assault cases must convey that delay "did" create forensic difficulties for the accused, not merely that it "may have." Framing the disadvantage as hypothetical or contingent falls below the required standard.
  • Directing the jury to consider whether delay prevented the accused from proving the complainant's account was "impossible" is a misdirection. The correct focus is on evidence that could have given rise to a reasonable doubt, and the direction must make clear the accused bore no responsibility to adduce such evidence.
  • The Court of Criminal Appeal confirmed that the principles in Longman v The Queen (1989) 168 CLR 79, as developed through Crampton, Doggett, and the Court's own decision in BWT, require that delay directions address both the difficulty of testing the complainant's evidence and the difficulty of mounting a positive defence case.
  • Both prosecution and defence counsel share responsibility for identifying and correcting erroneous jury directions at trial. The Court expressed concern that neither counsel sought correction of the inadequate directions in this case.
  • Where identified misdirections are combined with evidence of sufficient uncertainty, the Court of Criminal Appeal may decline to order a retrial and instead enter verdicts of acquittal directly.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 8

Cases
- Longman v The Queen (1989) 168 CLR 79
- The Queen v Murray (1987) 11 NSWLR 12
- R v Johnston (1998) 45 NSWLR 362
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343
- The Queen v BWT (2002) 54 NSWLR 241