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Court of Criminal Appeal 30 August 2004

REGINA v SY

[2004] NSWCCA 297

Sexual offences
CONVICTION APPEAL WHETHER MISCARRIAGE EFFECT OF DELAY INADEQUATE LONGMAN DIRECTION

Citation: Regina v SY [2004] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 30 August 2004
Judge(s): Ipp JA, Simpson J, Adams J

Background

The appellant was convicted in the District Court on seven counts arising from alleged sexual offences against his niece, including five counts of sexual intercourse with a person under 16, one count of sexual intercourse without consent, and one count of indecent assault. The alleged conduct spanned from 1990 to 1995. Concurrent sentences of imprisonment were imposed, the longest being four years with a two-year non-parole period.

The complainant first disclosed the alleged abuse to a relative in Lebanon in 1997, some years after the conduct was said to have ceased. The disclosure led to considerable family disturbance, including a confrontational family meeting and eventual police involvement.

The appellant appealed his convictions on multiple grounds, three of which the Court of Criminal Appeal found to be determinative.

  • Whether the trial judge improperly assumed control of the prosecution case by directing the Crown to call evidence contrary to an agreement it had reached with the defence
  • Whether the trial judge gave an adequate direction to the jury about the dangers of convicting on the uncorroborated evidence of a complainant after long delay (a so-called "Longman direction," derived from R v Longman (1989) 168 CLR 79)
  • Whether the trial judge adequately directed the jury to disregard evidence of the appellant's heroin use when assessing his character and propensity

Decision

The Court found that the trial judge had seriously overstepped his role by effectively compelling the Crown prosecutor to lead evidence that the Crown had previously agreed with defence counsel it would not adduce. The judge made plain that if the prosecutor did not renege on that agreement, the trial would be "aborted." The Court held this was a miscarriage of justice: the judge had adopted the role of supervising the prosecution case rather than presiding impartially over the trial.

On the Longman direction, the Court found the direction given to the jury was inadequate. Where an accused faces allegations of conduct occurring years before trial, the jury must be directed in emphatic terms about the specific forensic disadvantages that long delay creates for the defence, including the difficulty of challenging evidence about events from the distant past. The direction given fell well short of that standard.

The Court also found that the trial judge failed to give an adequate direction about the appellant's heroin use. Evidence of heroin use had emerged during the trial and, without a specific and emphatic direction, there was a real risk that the jury would treat that evidence as indicating bad character, making it more likely the appellant had committed the offences or was untruthful. No such direction was given, and the Court considered this omission sufficiently serious to warrant leave to raise it on appeal despite no application having been made at trial.

Having identified three separate grounds warranting the quashing of the convictions, the Court turned to whether to order a new trial. By the time of the appeal hearing, the sentences on all but one count had been served, and the remaining sentence was due to expire so soon that a new trial could not realistically have been convened in time. The Court concluded this was not a case of sufficient public importance to justify ordering a new trial in those circumstances.

Orders Made

  • Appeal upheld
  • Verdict of the jury set aside
  • Verdict of acquittal entered on all counts

Key Takeaways

  • A trial judge who effectively compels the Crown to call evidence contrary to an agreement with the defence, and threatens to abort the trial otherwise, assumes the role of prosecutor rather than impartial arbiter and thereby causes a miscarriage of justice.
  • Under the principle in R v Longman, a jury must be directed in emphatic terms about the specific disadvantages facing an accused who must answer allegations of conduct occurring many years before trial; a general or cursory warning is insufficient.
  • Where evidence of prior criminal conduct (here, heroin use) is admitted during a criminal trial, the absence of a specific direction telling the jury not to use that evidence as proof of bad character or propensity can constitute a ground of appeal, even without a request from defence counsel.
  • A new trial will not automatically be ordered following a successful conviction appeal where the sentence has already been, or is about to be, fully served, unless the public interest in securing a conviction is particularly compelling.
  • The Court of Criminal Appeal entered verdicts of acquittal rather than ordering a retrial, reflecting the practical reality that ordering a new trial in these circumstances would have been futile.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 135
- Criminal Appeal Rules, r 4

Cases:
- R v Longman (1989) 168 CLR 79
- R v Johnston 45 NSWLR 371
- Richardson v The Queen (1974) 131 CLR 116
- Whitehorn v The Queen (1983) 152 CLR 657