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Court of Criminal Appeal 30 January 2009

AW v REGINA

[2009] NSWCCA 1

Sexual offences
CRIMINAL LAW WHETHER ERROR IN BLACK DIRECTION ADEQUACY OF LONGMAN DIRECTION APPEAL DISMISSED.

Citation: AW v Regina [2009] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 30 January 2009
Judge(s): Bell JA, Latham J, Fullerton J (Latham J delivering the principal judgment; Bell JA and Fullerton J agreeing)

Background

The appellant was convicted in the District Court of four offences against a child: one count of indecent assault, one count of committing an act of indecency, and two counts of sexual intercourse without consent. The complainant was the daughter of the appellant's de facto partner, and the offences occurred over a period spanning September 1998 to December 2000, when the complainant was aged between nine and eleven years.

The Crown also relied on tendency evidence: testimony that the appellant had accessed child pornography on a home computer. This evidence came from the complainant, her mother, and a friend of the complainant, though the friend's account differed in some respects from the complainant's version.

The appeal raised four grounds, all directed at the conduct of the trial. Three concerned the adequacy of jury directions given by the trial judge, and the fourth challenged the admission of the tendency evidence. No appeal was brought against sentence.

  • Whether the trial judge's direction to a deadlocked jury departed significantly from the direction approved in Black v The Queen (1993) 179 CLR 44 (commonly called a "Black direction," this is the standard direction given to a jury that cannot reach agreement, designed to encourage deliberation without pressuring jurors to abandon genuinely held views)
  • Whether the tendency evidence relating to child pornography was wrongly admitted
  • Whether the trial judge's "Longman direction" was adequate (a Longman direction warns the jury of the dangers of convicting on uncorroborated evidence of historical sexual offences, given the difficulty an accused faces in defending stale complaints)
  • Whether the trial judge erred by suggesting the jury approach the counts on the indictment sequentially

Decision

Ground 1: The Black direction. The Court examined the trial judge's direction to the deadlocked jury and, while noting it departed in certain respects from the template endorsed in Black, found no substantial departure that gave rise to a miscarriage of justice. No objection had been taken at trial, and the jury returned verdicts the following morning after being sent home to rest overnight.

Ground 2: Tendency evidence. The Court found no error in the admission of the child pornography evidence. The tendency notice and the evidence as admitted were found to satisfy the requirements of the Evidence Act 1995, with probative value substantially outweighing prejudicial effect. The trial judge had appropriately reconsidered the ruling after one witness gave evidence that differed from the tendency notice, and withdrew that witness's evidence from the jury as tendency evidence. No complaint was made about those corrective steps.

Ground 3: The Longman direction. The Court found the trial judge's warning to the jury about the dangers of acting on the complainant's uncorroborated evidence of historical sexual offending was adequate in the circumstances. This ground also failed.

Ground 4: Sequential approach to counts. The trial judge had suggested the jury might approach the counts in a sequential order, following a direction that each count had to be considered separately. The Court distinguished this case from Norris v Regina [2007] NSWCCA 235, where a judge had directed the jury that it was required to proceed sequentially. Here, the judge had merely made a suggestion, embedded in a broader direction emphasising that verdicts on individual counts were independent. The Court held this did not disclose the kind of error identified in Norris.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A Black direction that departs from the approved template does not automatically constitute reversible error; the question is whether any departure caused a substantial miscarriage of justice.
  • Where a tendency notice is served before trial and the trial judge rules on admissibility, a subsequent variation in a witness's evidence does not automatically invalidate the ruling; the appropriate response is to reassess and, if necessary, withdraw the evidence from the jury's consideration as tendency evidence.
  • The adequacy of a Longman direction is assessed in context; no single form of words is mandated, provided the jury is properly warned of the dangers of convicting on uncorroborated historical complaint evidence.
  • In distinguishing Norris v Regina, the Court confirmed that a mere suggestion to approach counts sequentially differs materially from a direction that the jury is required to do so, particularly where the suggestion accompanies a clear instruction that each count must be decided independently.
  • No error was established on any of the four grounds, and the Court of Criminal Appeal dismissed the appeal in its entirety.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Black v The Queen (1993) 179 CLR 44
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- Norris v Regina [2007] NSWCCA 235; (2007) 176 A Crim R 42
- Crampton v The Queen [2000] HCA 60; 206 CLR 161
- Doggett v The Queen [2001] HCA 46; 208 CLR 343
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Yuill (1994) 77 A Crim R 314
- Picken v R [2007] NSWCCA 319
- R v Johnston (1998) 45 NSWLR 362
- R v BWT [2002] NSWCCA 60; 54 NSWLR 241
- DPW v Regina [2006] NSWCCA 295; (2006) 164 A Crim R 583
- KJR v Regina [2007] NSWCCA 165; (2007) 173 A Crim R 226
- Perez v Regina [2008] NSWCCA 46
- Various other NSWCCA decisions including R v Kesisyan, R v SY, R v DRE, R v MM, R v Milton, R v Fletcher, and R v Lockyer