Citation: Darren Peter Wade v Regina [2006] NSWCCA 295
Court: New South Wales Court of Criminal Appeal
Date: 20 September 2006
Judge(s): Hunt AJA; Barr J; Johnson J
Background
The appellant was convicted by a jury in the District Court of sexual intercourse without consent in circumstances of aggravation, namely that the complainant (referred to as "T") was under sixteen years of age at the time of the offence. The offence was alleged to have occurred on the night of 25 October 2000, when T was twelve years old. The appellant had a domestic relationship with T's mother and was living in the same household at the time.
T did not disclose the alleged assault until March 2004, during a conversation with her mother about unrelated matters. The appellant was not informed of the allegation until approximately May 2005, meaning nearly four years elapsed between the alleged offence and the complaint being brought to his attention.
At trial, the central factual dispute was whether the appellant had digitally penetrated T. T gave direct evidence of the assault; the appellant denied entering her room at all. The jury convicted him, and he appealed on the sole ground that the trial judge's directions regarding the effect of delay on his ability to mount a defence were inadequate.
Legal Issues
- Whether the trial judge's direction to the jury adequately warned them of the disadvantage suffered by the accused as a result of the significant delay between the alleged offence and the complaint.
- Whether the trial judge's direction used language that conveyed the "weight and authority of the court," as required by the applicable authorities.
Decision
Barr J (with whom Hunt AJA and Johnson J agreed) dismissed the appeal. His Honour found that the trial judge's direction on delay, while not the strongest possible, was adequate in the circumstances of the case. The direction correctly identified memory loss as the principal way in which delay could compromise the accused's ability to defend himself, and clearly instructed the jury to bear this in mind.
Barr J noted that the defence case at trial was one of deliberate concoction by T, not a case where the appellant suggested he had been prejudiced through fading memory. No specific defence evidence had been lost due to delay. The use of the phrase "to some extent" in the direction did not render it inadequate; it would have been unrealistic to suggest that any delay produces a total loss of memory, particularly where the appellant himself appeared to have a clear recollection of the events of the evening.
Hunt AJA addressed the complaint that the direction failed to carry the "weight and authority of the court." His Honour clarified that this requirement does not demand any particular form of words. It means only that the required warnings must be understood by the jury as coming from the judge personally, rather than merely rehearsing what counsel submitted. On the facts, it was clear that the trial judge had added his judicial authority to the directions in question.
Barr J also observed that defence counsel had not sought any further or stronger direction at trial. Leave to appeal was therefore required, and the Court refused it, concluding the appellant had not established any miscarriage of justice.
Orders Made
- Appeal dismissed.
Key Takeaways
- A direction on the effect of delay on an accused's ability to mount a defence does not need to be in the strongest possible terms; it must be adequate to the circumstances of the particular case.
- The requirement that a jury direction carry the "weight and authority of the court" demands only that the jury understands the direction as coming from the judge personally, not merely as a summary of counsel's submissions. No particular form of words is required.
- Where the defence case at trial is one of deliberate fabrication rather than honest but unreliable recollection, and no specific defence evidence has actually been lost to delay, a moderately framed delay direction may still be sufficient.
- In dismissing the appeal, the Court of Criminal Appeal noted the significance of defence counsel not requesting a stronger or further direction at trial, which triggered a requirement for leave to appeal on that ground.
- A strong direction to scrutinise a complainant's evidence with great care (a "Murray direction") can complement and support a direction on delay, and the combined effect of both directions is relevant to assessing adequacy.
Legislation and Cases Referenced
Cases Cited:
- R v Murray (1987) 11 NSWLR 12
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
- R v BWT (2002) 54 NSWLR 241
- R v GS [2003] NSWCCA 73
- R v WSP [2005] NSWCCA 427
- R v DGB (2002) 133 A Crim R 227
- R v Murre [2001] NSWCCA 286
- R v DRE [2006] NSWCCA 280
- R v Sheehan [2006] NSWCCA 233
- R v Kesisyan [2003] NSWCCA 259
- Doggett v The Queen (2001) 208 CLR 343
- R v Robinson [2006] NSWCCA 192
Legislation: No specific legislation was cited in the judgment text.