AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 30 July 2004

R v SCOTT

[2004] NSWCCA 254

Sexual offences
CRIMINAL LAW CONDUCT OF COUNSEL CARE AND DIRECTIONS NEEDED.

Citation: R v Scott [2004] NSWCCA 254
Court: New South Wales Court of Criminal Appeal
Date: 30 July 2004
Judge(s): Sully J, James J, Hulme J (Hulme J delivered the principal judgment)

Background

The appellant was convicted in the District Court of having homosexual intercourse with a 12-year-old male complainant during school holidays in late 1997. The complainant alleged that the appellant provided him with alcohol, that he passed out, and that the appellant then sexually assaulted him. The appellant denied all sexual conduct and denied that the complainant had been intoxicated to the point of passing out.

The complaint was not made to police until November 1999, approximately two years after the alleged events. The appellant was not arrested and charged until August 2000, and his trial took place in December 2001. The lengthy delay between the alleged offending and trial was a significant feature of the case.

The appellant appealed his conviction on two grounds: that the Crown Prosecutor's cross-examination of him had created a miscarriage of justice, and that the trial judge had failed to give a full warning about the dangers of convicting on the uncorroborated evidence of a complainant after a long delay (commonly called a "Longman warning").

  • Whether the Crown Prosecutor's cross-examination of the appellant, which aimed to suggest he had changed his story on peripheral matters, was impermissible and created a miscarriage of justice.
  • Whether the trial judge's failure to give a full Longman warning (concerning the dangers of convicting on delayed complaint evidence) constituted a miscarriage of justice.

Decision

On the first ground, the Court of Criminal Appeal found that the Crown's cross-examination was problematic in significant respects. The cross-examination focused largely on peripheral topics, including cooking arrangements, phone calls, details of alcohol consumption, and whether the appellant had brought a blanket to the complainant, in order to suggest that the appellant had changed his story. The Court found that this approach lacked sufficient care and was capable of causing serious unfair prejudice to the appellant's case.

The Court noted that the line of cross-examination was particularly concerning because the Crown chose not to challenge the appellant's direct denial of the offending conduct, yet pursued him aggressively on collateral matters to undermine his credibility generally. This approach was found to fall short of the standard of caution required by the line of authority stemming from R v Birks (1990) 19 NSWLR 677 and applied in subsequent decisions.

On the second ground, the Court found that the trial judge's directions were inadequate in the circumstances. Given the length of the delay between the alleged offending and the trial, and the difficulties that delay created for the appellant in testing the complainant's account, a full Longman warning was required. The absence of that warning, combined with the conduct of the cross-examination, contributed to a miscarriage of justice.

The Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders Made

  • The appeal was allowed.
  • The conviction for homosexual intercourse with the complainant, and the sentence imposed by Judge Woods on 28 February 2002, were quashed.
  • A new trial was ordered on that charge.
  • The commencement dates of the four sentences imposed for related offences (three counts of indecent assault on a person under 16 and one count of inciting a person under 16 to commit an act of indecency, arising from Local Court convictions) were varied to commence on 3 December 2001.

Key Takeaways

  • Cross-examining an accused to suggest he has changed his story, particularly on peripheral or collateral matters, requires considerable care and restraint; the Court of Criminal Appeal confirmed this principle by following R v Birks and the cases that built upon it.
  • Where such cross-examination lacks probative value on the central issues but carries significant potential for unfair prejudice to the accused's credibility, it may constitute a miscarriage of justice warranting a new trial.
  • A Longman warning, addressing the dangers of convicting on the uncorroborated evidence of a complainant after a substantial delay, was required in this case given the approximately two-year gap between the alleged events and the complaint to police.
  • The fact that the Crown did not challenge the appellant's direct denial of the offending conduct, while still pursuing him on collateral inconsistencies, heightened the unfairness of the cross-examination approach adopted at trial.
  • Sentence commencement dates on related offences may be adjusted by the Court of Criminal Appeal under s 59 of the Crimes (Sentencing Procedure) Act where a conviction underpinning the sentencing structure is quashed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 59

Cases:
- R v Birks (1990) 19 NSWLR 677 (followed)
- R v Dennis [1999] NSWCCA 223 (considered)
- R v Abdallah [2001] NSWCCA 506 (considered)
- Picker v R [2002] NSWCCA 78 (considered)