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7
Court of Criminal Appeal 14 December 2005

WSP v R

[2005] NSWCCA 427

Sexual offences

Citation: R v WSP [2005] NSWCCA 427
Court: NSW Court of Criminal Appeal
Date: 14 December 2005
Judge(s): Spigelman CJ, Sully J, Hulme J

Background

The appellant faced two separate trials in the District Court before Latham DCJ, each involving a different complainant. The first trial concerned a complainant identified as MK, and the second concerned a complainant identified as CJ. Both proceedings involved historical allegations of child sexual assault, with the conduct alleged to have occurred in 1989 and charges not laid until 2002, a gap of approximately 13 years.

Following convictions in both trials, the appellant sought extensions of time to appeal and leave to raise grounds of appeal not previously flagged. The central complaint in the second trial was that the trial judge had failed to give an adequate warning to the jury about the dangers of convicting on the basis of the complainant's evidence given the significant passage of time since the alleged conduct.

  • Whether the trial judge's direction in the second trial constituted an adequate Longman warning, that is, a warning about the danger of convicting on uncorroborated evidence after a lengthy delay during which the accused's ability to mount a defence had been significantly prejudiced
  • Whether, if the Longman warning was inadequate, the proviso under section 6(1) of the Criminal Appeal Act applied so as to nonetheless dismiss the appeal on the basis that no substantial miscarriage of justice had occurred
  • Whether the applications for extensions of time and leave to appeal in relation to the first trial and sentencing grounds should be granted

Decision

The Court was divided on the adequacy of the Longman warning in the second trial. Spigelman CJ concluded that the trial judge's direction was, in substance, sufficient. His Honour found that each critical element of the Longman warning had been conveyed: the direction was framed as a warning rather than a mere comment, it identified the prejudice caused by delay, and it told the jury it could only convict if satisfied beyond reasonable doubt of the truth and reliability of the complainant's evidence. Spigelman CJ considered those formulations to be at least as stringent as the Longman formula itself, and in some respects stronger.

Hulme J, with whom Sully J agreed on this point, reached the opposite conclusion. His Honour found that the direction departed materially from the language in Longman and that the departure created real risk of the jury not understanding the nature and purpose of the warning. In particular, Hulme J observed that trial judges who depart from the words used in Longman itself risk producing directions that fail, in substance, to convey the necessary caution.

On the proviso, Hulme J held that it could not be said the absence of an adequate warning made no difference. The jury had acquitted the appellant on several counts, suggesting reservations about the complainant's reliability. There was also independent corroborating evidence that went only to whether some misconduct had occurred, not to whether the specific conduct charged had taken place. In those circumstances, the Court ordered a new trial on the charges arising from the second trial.

The appeal and all grounds relating to the first trial (MK) were refused. The Court also declined to grant an extension of time to appeal against sentence.

Orders Made

  • Extension of time to appeal against convictions of 13 August 2003 granted
  • Leave granted to argue the Fourth Ground of Appeal
  • Appeal against convictions of 13 August 2003 allowed
  • New trial ordered on the charges the subject of those convictions
  • Application for extension of time to appeal against convictions of 8 August 2003, and for leave to appeal against sentences imposed on those convictions, refused
  • Leave to argue the First to Third Grounds of Appeal refused

Key Takeaways

  • A Longman warning must be framed as a warning, not merely a comment, and must identify the specific prejudice caused by delay to the accused's ability to test the prosecution case and adduce evidence of his own.
  • Spigelman CJ confirmed that no judicial direction need follow the precise words of Longman, provided the substance of the warning is conveyed, but noted that the stringency required by the High Court in Crampton and Doggett must be satisfied.
  • Departing from the language of Longman carries a real risk that the resulting direction will be found inadequate: Hulme J identified this as a recurring problem when trial judges paraphrase rather than follow the established formula.
  • The proviso under section 6(1) of the Criminal Appeal Act will not apply where there is a meaningful prospect the inadequate warning affected the verdict, particularly where the jury's partial acquittal suggests genuine reservations about the complainant's credibility.
  • Sufficient independent corroborating evidence of general misconduct does not cure an inadequate Longman warning where that evidence does not go specifically to proof of the conduct charged in the counts of conviction.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), section 6(1)
- Criminal Appeal Rules, Rule 4

Cases:
- Longman v The Queen (1990) 168 CLR 79
- Crampton v The Queen (2001) 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343
- Dyers v The Queen (2002) 210 CLR 285
- R v BWT (2002) 54 NSWLR 241
- R v DBG (2002) 133 A Crim R 227
- Christophers v The Queen (2000) 23 WAR 106
- Chrisafio v The Queen (2003) 27 WAR 169
- RBK v The Queen [2004] WASCA 216
- Ada v Western Australia [2005] WASCA 162