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Court of Criminal Appeal 16 August 2006

Sheehan v Regina

[2006] NSWCCA 233

Also reported as (2006) 163 A Crim R 397
Sexual offences
CRIMINAL PRACTICE & PROCEDURE LONGMAN WARNING MANY COUNTS UNCORROBORATED ONE COUNT CORROBORATED PROVISO WHETHER MISCARRIAGE OF JUSTICE

Citation: Sheehan v Regina [2006] NSWCCA 233
Court: New South Wales Court of Criminal Appeal
Date: 16 August 2006
Judge(s): Handley JA, Kirby J, Hoeben J (Handley JA and Hoeben J agreeing with Kirby J)

Background

The appellant was the stepfather of the complainant, referred to by the pseudonym "Theresa." The Crown alleged that he repeatedly sexually abused her between the ages of six and eleven years, committing acts of fellatio and vaginal intercourse on multiple occasions between 1981 and 1986. The abuse allegedly stopped only when the complainant's mother discovered him in the act.

The complainant was thirty years old at the time of trial. The charges therefore related to events alleged to have occurred some twenty to twenty-five years before she gave evidence. The appellant pleaded not guilty to all ten counts on the indictment.

A District Court jury found the appellant guilty on eight of the ten counts (counts 1 to 7 and count 10), acquitting him on counts 8 and 9. He appealed against all eight convictions on the sole ground that the trial judge had failed to adequately warn the jury in accordance with the principles in Longman v The Queen (1989) 168 CLR 79.

  • Whether the trial judge's direction to the jury constituted an adequate Longman warning in circumstances where the judge did not use the word "warning" or the phrase "dangerous to convict"
  • Whether the inadequacy of the Longman direction, if established, resulted in a miscarriage of justice across all counts
  • Whether the proviso applied to preserve the conviction on count 10, which was the only count supported by corroborating evidence

Decision

The Court accepted that the trial judge's direction fell short of a proper Longman warning. The judge had not used the word "warning" or directed the jury that it was "dangerous to convict" on the uncorroborated evidence of the complainant alone, despite the charges relating to events from many years earlier. The Court held that this deficiency was material to counts 1 to 7, where the complainant's evidence was uncorroborated, and that a miscarriage of justice had occurred in respect of those counts.

The Longman warning requirement arises where a complainant gives evidence of events from the distant past and the accused has had no meaningful opportunity to investigate or answer the allegations. Its purpose is to ensure the jury understands the forensic disadvantage that delay creates for an accused. The omission of the required language was not a mere technicality: the Court found the warning was fundamental to the fairness of the trial on those uncorroborated counts.

Count 10 stood on different footing. That count was supported by corroborating evidence, namely the complainant's mother having witnessed the appellant having intercourse with her daughter. The Court held that even if a full Longman warning had been given, a conviction on count 10 was inevitable. The appellant had not lost a real chance of acquittal, and so no miscarriage of justice arose on that count. The proviso accordingly applied to count 10, and the appeal against that conviction was dismissed.

The Court also noted that count 10 did not stand as an isolated incident: it occurred in the context of a broader pattern of similar conduct involving the complainant. The evidence in relation to count 10 could be called at the retrial on counts 1 to 7, although the fact of conviction on count 10 could not be relied upon.

Orders Made

  • Appeal allowed in respect of counts 1 to 7 inclusive; convictions quashed and sentences set aside; new trial ordered on those counts
  • Appeal in respect of count 10 dismissed; conviction on count 10 confirmed
  • The appellant and the Crown granted leave to make further written submissions concerning sentence on count 10, with the appellant to file within 14 days and the Crown to respond within a further 14 days

Key Takeaways

  • A Longman warning must convey to the jury both that it is a "warning" and that it is "dangerous to convict" on the complainant's uncorroborated evidence alone; omitting that language risks the direction being held inadequate.
  • Where a Longman warning is fundamental to the fairness of a trial on uncorroborated counts, its absence will constitute a miscarriage of justice that cannot be cured by the proviso.
  • The proviso can apply to preserve a conviction on a count that is corroborated, even where convictions on other counts are quashed for want of an adequate Longman warning, provided the court is satisfied the conviction on that count was inevitable.
  • Corroboration plays a decisive role in differentiating outcomes across counts on the same indictment: the presence of independent evidence on count 10 (the mother's eyewitness account) was the critical distinction that separated it from counts 1 to 7.
  • Evidence relating to a confirmed conviction may be led at a retrial on related counts, though the fact of conviction itself cannot be placed before the jury.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61D(1)

Cases:
- Longman v The Queen (1989) 168 CLR 79
- 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
- JJB v R [2006] NSWCCA 126
- R v Kesisyan [2003] NSWCCA 259
- R v DBG (2002) 133 A Crim R 227
- Festa v The Queen (2001) 208 CLR 593
- Mraz v The Queen (1955) 93 CLR 493
- S v The Queen (1989) 168 CLR 266
- Quartermaine v The Queen (1980) 143 CLR 595
- R v WRC (2002) 130 A Crim R 89
- R v Stewart (2001) NSWLR 301