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7
Court of Criminal Appeal 7 September 2006

DRE v REGINA

[2006] NSWCCA 280

Also reported as (2006) 164 A Crim R 400
Sexual offences
CONVICTION APPEAL DELAY LONGMAN DIRECTION WHETHER ADEQUATE APPEAL DISMISSED (BY MAJORITY)

Citation: DRE v REGINA [2006] NSWCCA 280
Court: NSW Court of Criminal Appeal
Date: 7 September 2006
Judge(s): Spigelman CJ; Simpson J; Adams J

Background

The appellant was convicted in the District Court on multiple counts of sexual offending. This was his second trial: the Court of Criminal Appeal had previously quashed his convictions after the first trial, partly because the trial judge had failed to give a Longman warning altogether.

A Longman warning is a direction the trial judge must give the jury when an accused person has been significantly disadvantaged in mounting a defence because of the delay between the alleged offending and the complaint being made to police. The warning requires the jury to understand the genuine forensic prejudice caused by that delay and to scrutinise the evidence with great care.

At the second trial, the judge did give a Longman warning. The appellant challenged whether that warning was adequate, arguing it failed to convey the true seriousness of the disadvantage he suffered as a result of the delay.

  • Whether the trial judge's Longman warning at the second trial was adequate in substance and form.
  • Whether r 4 of the Criminal Appeal Rules applied to bar the appellant from raising grounds of inadequacy that trial counsel had not clearly objected to after the summing-up.
  • Whether the language used by the trial judge trivialised or downgraded the warning's effect.
  • Whether the warning sufficiently conveyed to the jury that it was dangerous to convict and that the evidence required careful scrutiny.

Decision

The Court of Criminal Appeal dismissed the appeal by majority, with Spigelman CJ and Simpson J in the majority and Adams J dissenting.

Spigelman CJ emphasised that the Longman warning must be assessed in the context of the summing-up as a whole, not through a line-by-line parsing of individual phrases. His Honour found that while certain introductory remarks by the trial judge might be criticised in isolation, the substantive portion of the warning expressed the disadvantages suffered by the accused in concrete, non-trivialising terms. The judge had used language of actual detriment, including that the accused "lost the opportunity" to adduce or check various evidence. In the Chief Justice's view, r 4 applied to most of the specific terminology complaints raised on appeal because trial counsel had not sought redirection on those matters after the summing-up.

Simpson J similarly found the warning adequate when read as a whole, concluding that the jury had been sufficiently informed of the dangers of convicting in circumstances of delay.

Adams J dissented, taking the view that the summing-up did not adequately inform the jury either why it was dangerous to convict or that the evidence required careful scrutiny. His Honour considered that trial counsel's response after the summing-up was appropriate and sufficient in context, meaning r 4 did not bar the ground of appeal. On that analysis, Adams J would have quashed the convictions and ordered a new trial.

Orders Made

  • Appeal against conviction dismissed (by majority).

Key Takeaways

  • A Longman warning must be assessed in the context of the entire summing-up, not evaluated by isolating individual phrases or formulations that might, in isolation, appear to diminish its force.
  • Where a trial judge uses language expressing the accused's disadvantage in terms of actual, concrete detriment (rather than mere possibility), this can satisfy the Longman requirement even if the precise formulation differs from approved precedents.
  • Rule 4 of the Criminal Appeal Rules can operate to prevent an appellant raising inadequacy of a Longman warning on appeal where trial counsel did not seek redirection on the specific points after the summing-up.
  • The majority and dissent in this case illustrate that the line between an adequate and an inadequate Longman warning can be fine, particularly where the trial judge's language is imprecise in its opening passages but more careful in the substantive body of the direction.
  • The Court confirmed, consistent with earlier authority, that the requirement for the warning to convey that it is "dangerous to convict" is applied strictly in New South Wales, in contrast to the less rigid approach taken in Western Australia.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules r 4
- Evidence Act 1906 (WA) s 36BE(1)

Cases
- Longman v The Queen (1989) 168 CLR 79
- R v DRE [2004] NSWCCA 305
- R v BWT (2002) 54 NSWLR 241
- R v WSP [2005] NSWCCA 427
- JJB v Regina [2006] NSWCCA 126
- R v Johnston (1998) 45 NSWLR 362
- Crampton v The Queen [2000] HCA 60; 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343
- R v Kesisyan [2003] NSWCCA 259
- Robinson v R [2006] NSWCCA 192