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Court of Criminal Appeal 3 April 2006

REGINA v POOLE

[2006] NSWCCA 93

Sexual offences
APPEAL AGAINST CONVICTION FRESH EVIDENCE TESTS OF ADMISSIBILITY SIGNIFICANCE LONGMAN DIRECTION NECESSARY ELEMENTS

Citation: Regina v Poole [2006] NSWCCA 93
Court: New South Wales Court of Criminal Appeal
Date: 3 April 2006
Judge(s): Simpson J, Adams J, Hoeben J

Background

The appellant was convicted in the District Court of seven counts of sexual assault against a child complainant, including homosexual intercourse with a male aged between ten and eighteen, aggravated indecent assault, and sexual intercourse with a child. The alleged offences occurred between September 1999 and April 2000, when the complainant was ten to eleven years old. The complainant did not make a complaint to police until more than twelve months after the events.

The Crown case was built around three separate incidents. The complainant's evidence in chief was presented through three video-recorded police interviews. The appellant was sentenced to concurrent and fixed terms of imprisonment following his conviction at trial before Ellis DCJ.

On appeal, the appellant raised multiple grounds, including reliance on fresh evidence, a misdirection regarding the Longman warning (explained below), an impermissible mid-trial change to the Crown case, and the use of the complainant's video interviews.

  • Whether fresh evidence tendered on appeal met the applicable tests of admissibility and significance, warranting a new trial
  • Whether the trial judge gave a legally adequate "Longman direction," that is, the warning required when delay in complaint makes it difficult for the defence to adequately test the prosecution case
  • Whether the Crown should have been permitted to alter the dates of the alleged offences during cross-examination of the appellant, effectively departing from the particulars in the indictment
  • Whether the dates of the alleged offences were central to the charges, such that a change to those dates prejudiced the appellant's defence
  • Whether the videotaped interviews of the complainant should have been sent into the jury room

Decision

Fresh evidence: The Court accepted that fresh evidence was significant enough to warrant consideration on appeal. That evidence bore on the reliability and testability of the complainant's account, and its potential to affect the outcome of a retrial was a relevant factor in ordering a new trial.

The Longman direction: Where there is significant delay between alleged offences and the complaint to police, a trial judge must give the jury a two-part warning. The jury must be told that the delay creates a danger of convicting the accused, because the defence cannot adequately test the complainant's evidence. The jury must also be directed to scrutinise the evidence with great care. Adams J found that Ellis DCJ's directions addressed only the second element, leaving the jury with the impression that the problem was merely the difficulty facing the defence in presenting a positive case, rather than the broader danger of convicting in circumstances where the complainant's evidence could not properly be tested. This omission was a material error.

Change to the Crown case: During cross-examination of the appellant, the Crown shifted the dates of the second incident to a period outside what had been opened to the jury. The Court found this departure from the particulars was impermissible. The dates were sufficiently central to the charges that changing them mid-trial unfairly undermined the appellant's ability to answer the case against him.

Video interviews: Leave was sought to challenge the sending of the video interviews into the jury room, but counsel conceded that decisions of the Court of Criminal Appeal in R v NZ and R v RTGS posed insurmountable barriers to that ground succeeding. The Court did not determine that ground.

Orders Made

  • Appeal allowed
  • New trial ordered in respect of all convictions

Key Takeaways

  • A Longman direction must contain two distinct elements: the jury must be told both that delay creates a danger because the defence cannot adequately test the complainant's evidence, and that they must scrutinise the evidence with great care. Omitting the first element is a legal error capable of vitiating a conviction.

  • The Court of Criminal Appeal confirmed that permitting the Crown to alter the dates of alleged offences during cross-examination of an accused, in a way that departs from the particulars in the indictment, can constitute a procedural irregularity serious enough to warrant a new trial.

  • Where dates form an essential part of how the Crown has particularised its case, a mid-trial shift to different dates may deprive the accused of a fair opportunity to answer the allegations.

  • Fresh evidence on appeal must satisfy tests of admissibility and significance. Where such evidence could plausibly have affected the jury's verdict, it supports the ordering of a new trial rather than the dismissal of an appeal.

  • The surrounding details a complainant provides when describing events can create an impression of truthfulness that is difficult for a defendant to challenge, particularly after significant time has passed. This reality is part of the rationale underpinning the Longman warning requirement.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C, 78K

Cases:
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- R v Johnston (1999) 45 NSWLR 362
- R v NZ [2005] NSWCCA 278
- R v RTGS [2005] NSWCCA 293