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7
Court of Criminal Appeal 1 July 2004

Regina v LTP

[2004] NSWCCA 109

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT COMPLAINANT DAUGHTER OF APPELLANT DELAY IN COMPLAINT NECESSITY FOR KILBY DIRECTION LONGMAN DIRECTION

Citation: Regina v LTP [2004] NSWCCA 109
Court: New South Wales Court of Criminal Appeal
Date: 1 July 2004
Judge(s): Dunford J, Simpson J, Howie J

Background

The appellant was convicted in the District Court at Dubbo on two counts of sexual offences against his natural daughter, the complainant. The offending alleged across all counts spanned a period from 1984 to 1994, when the complainant was aged between approximately six and sixteen years. The complainant had lived at home with the appellant throughout the relevant period and did not report the abuse until years later.

The original indictment contained eight counts. Counts 6 and 7 were withdrawn by the Crown during the trial. The jury acquitted the appellant on counts 1, 2, 3, and 8, and convicted him on counts 4 and 5. Count 4 concerned sexual intercourse with a child under ten years, alleged to have occurred around December 1986. Count 5 concerned sexual intercourse with a person under authority aged between ten and sixteen years, alleged in July 1990.

The appellant appealed his convictions on both counts and also sought leave to appeal the severity of his sentences.

  • Whether the offence charged in count 4 (sexual intercourse with a person under ten years) existed in law at the date of the alleged offending, given legislative changes at the relevant time
  • Whether fellatio constituted "carnal knowledge" under the law as it stood at the date of the alleged offending in count 4
  • Whether the trial judge gave an adequate direction regarding delay in complaint (the "Longman" direction)
  • Whether the trial judge was required to give a direction about the absence of a prompt complaint as bearing on credibility (the "Kilby" direction), and whether any such direction was adequate
  • Whether the verdicts on different counts were inconsistent
  • Whether the directions on the onus of proof were misleading or confusing
  • Whether restrictions placed on cross-examination of the complainant caused a miscarriage of justice
  • Whether the sentences imposed were manifestly excessive

Decision

Count 4: Offence did not exist at the alleged date

The Court allowed the appeal on count 4 and entered a verdict of acquittal. The central finding was that the offence charged under section 66A of the Crimes Act 1900, which criminalised sexual intercourse with a person under ten years, was not in existence at the date of the alleged offending in December 1986. The relevant legislative provision had not yet come into force at that time. The Court also addressed whether fellatio could have constituted "carnal knowledge" under the earlier law and confirmed that it could not. Because no offence existed in law at the relevant date, the conviction could not stand and no retrial was ordered.

Count 5: Kilby direction and the distinction between credibility and reliability

The appeal on count 5 produced differing reasoning among the judges. The majority view, as reflected in the orders, was that the conviction on count 5 was dismissed on appeal. However, Simpson J, in a separate judgment, took the view that the summing up inadequately addressed the distinction between the credibility of the complainant and the reliability of her evidence. Her Honour observed that while the trial judge's directions focused heavily on reliability, the Kilby direction, which concerns the absence of a prompt complaint and its bearing on whether the jury accepts the complainant's account as true, was not adequately given. Simpson J considered the trial unfair on this basis and would have quashed the conviction and ordered a new trial on count 5.

Longman direction and inconsistent verdicts

The Court examined whether the Longman warning, which directs a jury to exercise particular care because the passage of time may have disadvantaged the accused, was sufficient in the circumstances. On the inconsistency of verdicts argument, the Court found that different verdicts on different counts were not necessarily inconsistent, particularly where each count involved separate alleged incidents that the jury was entitled to assess independently.

Sentence

The Court varied the sentences imposed following its decision to quash the conviction on count 4.

Orders Made

  • Appeal allowed on count 4: verdict of acquittal entered
  • Appeal against conviction on count 5: dismissed
  • Sentence varied to reflect the quashing of the count 4 conviction

Key Takeaways

  • A person cannot be convicted of a statutory offence that did not exist in law at the date of the alleged conduct. Where legislative changes have created a new offence, courts must confirm that the provision was in force at the time of the alleged offending before a conviction can stand.
  • Fellatio did not constitute "carnal knowledge" under the Crimes Act 1900 as it stood prior to the relevant legislative amendments, a point confirmed in quashing the count 4 conviction.
  • The Kilby direction and the Longman direction serve distinct purposes: the Longman warning addresses the general danger of convicting on uncorroborated evidence after delay, while the Kilby direction specifically addresses the absence of a prompt complaint as bearing on the complainant's credibility. Simpson J's judgment emphasises that a summing up focused on reliability of evidence may not adequately address credibility in the Kilby sense.
  • Returning different verdicts on different counts in a multi-count sexual assault trial is not of itself inconsistent, where each count relates to a separate incident that the jury has been directed to assess independently.
  • Where a statutory offence is charged and that offence did not exist at the relevant date, the appropriate remedy is a verdict of acquittal, not a retrial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61I, 66, 66A, 66C(2), 67, 405
- Crimes (Child Assault) Amendment Act, No 149 of 1985 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 6, 7
- Criminal Procedure Act 1986 (NSW), ss 16, 294
- Evidence Act 1995 (NSW), s 41

Cases:
- Kilby v The Queen (1973) 129 CLR 460
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen [2000] HCA 60, 206 CLR 161
- Crofts v The Queen (1996) 186 CLR 427
- Doggett v The Queen [2001] HCA 46, 208 CLR 343
- Dyers v The Queen [2002] HCA 45, 210 CLR 285
- Festa v The Queen [2001] HCA 72, 208 CLR 593
- Jones v The Queen (1997) 191 CLR 439
- R v BWT [2002] NSWCCA 60, 54 NSWLR 241
- R v Markuleski [2001] NSWCCA 290, 52 NSWLR 82
- R v PLV [2001] NSWCCA 282, 51 NSWLR 736
- Shepherd v The Queen (1991) 170 CLR 573
- Spies v The Queen [2000] HCA 43, 201 CLR 603
- Green v The Queen (1971) 126 CLR 28
- Peacock v The King (1911) 13 CLR 619