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7
Court of Criminal Appeal 26 April 2006

JJB v Regina

[2006] NSWCCA 126

Also reported as (2006) 161 A Crim R 187
Sexual offences
CRIMINAL PRACTICE & PROCEDURE ALLEGATIONS BY CHILD OF SEXUAL ABUSE DELAY ACCUSED ABSCONDS ADDING TO DELAY LONGMAN DIRECTION ERROR BUT POINT NOT TAKEN

Citation: JJB v Regina [2006] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 26 April 2006
Judge(s): Spigelman CJ; Kirby J; Howie J

Background

The appellant stood trial before Nicholson DCJ in the District Court at Taree on multiple counts of indecent assault and sexual intercourse without consent. The complainant was his niece, who was a child at the time of the alleged offences. The charges related to conduct said to have occurred between 1987 and 1992, when the complainant was aged between six and eleven years old.

The jury acquitted the appellant on three counts but convicted him on two counts (counts 4 and 5), which concerned allegations of digital and penile penetration of the complainant when she was approximately ten to eleven years old. No appeal against sentence was brought.

Because the alleged offences occurred many years before trial, and the appellant had absconded for a period during proceedings (which added to the delay), the appeal centred on whether the trial judge had adequately warned the jury about the risks arising from that delay and the reliability of a child complainant's recollection.

  • Whether the trial judge failed to adequately warn the jury about the forensic disadvantage the appellant suffered due to the substantial delay between the alleged offences and trial (a "Longman direction")
  • Whether the trial judge failed to warn the jury about the fragility of childhood recollection and the potential for memory distortion over time (the so-called "extended Longman direction")
  • Whether the absence of those directions amounted to a miscarriage of justice, such that leave should be granted under Rule 4 of the Rules under the Criminal Appeal Act 1912

Decision

The Court of Criminal Appeal refused leave and dismissed the appeal. Because trial counsel had not raised any objection to the directions during the trial, the appellant required leave under Rule 4, which is granted only where failing to do so would result in a substantial miscarriage of justice.

Kirby J (with whom Howie J agreed) addressed each ground in turn. On the Longman warning concerning forensic disadvantage from delay, his Honour acknowledged there may have been some error in the trial judge's direction but was not persuaded it caused a miscarriage of justice. Kirby J inferred that counsel had made a sound forensic choice not to press the issue at trial, a factor weighing against the grant of leave.

On the question of childhood recollection, Kirby J distinguished the circumstances of the present case from those in Longman. The complainant here was significantly older than the child in Longman, the offending was more serious and more physically concrete in its description, and the complainant's account was corroborated by physical evidence (blood in the bath water) observed by her father, as well as an alleged admission by the appellant. The defence at trial did not suggest fantasy or distorted memory; it simply denied the events occurred. In those circumstances, the court found no miscarriage of justice in the absence of an extended Longman warning.

Spigelman CJ, while agreeing in the result, added significant observations about the "extended Longman direction." His Honour cautioned that the observations of Deane J and McHugh J in Longman about children's fragile recollection have never been given authoritative force by the High Court or any intermediate court of criminal appeal. The Chief Justice noted that those observations rest on assumptions about child psychology that are widely held but not necessarily well founded, and that substantial psychological research suggests children, even very young children, can give reliable evidence. He concluded that the complexity of these issues is not reflected in those observations, which should accordingly be treated with caution.

Orders Made

  • Leave under Rule 4 refused.
  • Appeal dismissed.

Key Takeaways

  • The so-called "extended Longman direction" (derived from observations of Deane J and McHugh J in Longman concerning the fragility of child recollection) has never been given authoritative force by the High Court or any Australian intermediate appellate court, and Spigelman CJ stated it should be treated with caution.
  • A Longman warning about forensic disadvantage from delay does not automatically require a further direction about the fragility of childhood recollection; the need for such a warning depends on the specific circumstances of the case, including the complainant's age, the nature of the alleged conduct, and whether fantasy or distorted memory was raised as an issue at trial.
  • Where trial counsel makes no complaint about a jury direction during the trial, an appellate court will require leave under Rule 4, and that leave will be refused unless the omission caused a substantial miscarriage of justice.
  • Corroborating evidence, such as physical observations consistent with the complainant's account and an alleged admission by the accused, are relevant to whether the absence of a particular jury direction occasioned a miscarriage of justice.
  • Spigelman CJ noted a growing body of psychological research supporting the reliability of children as witnesses, and referenced recent law reform reports calling for further legislative intervention on the admissibility of expert evidence about child witness reliability in sexual assault proceedings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1), 61M(1), 66C(1)
- Criminal Appeal Act 1912 (NSW), Rule 4

Cases
- Longman v The Queen (1989) 168 CLR 79
- R v Johnston (1998) 45 NSWLR 362
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343
- R v BWT (2002) 54 NSWLR 241
- SJB (2002) 129 A Crim R 572
- R v GS [2003] NSWCCA 73
- R v WSP [2005] NSWCCA 427
- R v DGB (2002) 133 A Crim R 227
- R v JBV [2002] NSWCCA 212
- Dyers v The Queen (2002) 210 CLR 285
- R v WRC [2002] NSWCCA 210
- Christophers v The Queen (2000) 23 WAR 106
- Crisafio v The Queen (2003) 27 WAR 169
- RBK v The Queen [2004] WASCA 216
- Angliss v The State of Western Australia [2005] WASCA 162