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Court of Criminal Appeal 21 October 2009

TJ v R

[2009] NSWCCA 257

Also reported as (2009) 76 NSWLR 167
Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION SEXUAL ASSAULT PARTICULAR GROUNDS OF APPEAL MISDIRECTION AND NON

Citation: TJ v R [2009] NSWCCA 257
Court: NSW Court of Criminal Appeal
Date: 21 October 2009
Judges: McClellan CJ at CL; Hidden J; McCallum J

Background

The appellant was convicted across two trials before the same District Court judge of 16 charges of sexual assault upon three children. The offences were alleged to have occurred between 1991 and 2000, meaning the gap between the alleged offending and the appellant being charged ranged from approximately 6 to 14 years. He was sentenced to an overall term of 9.5 years imprisonment with a non-parole period of 6 years.

The Crown's case in both trials rested entirely on the uncorroborated accounts of the complainants. The sole ground of appeal in respect of each trial was that the trial judge failed to give an adequate direction to the jury in accordance with the High Court's decision in Longman v The Queen (1989) 168 CLR 79. A Longman direction is a warning given by a trial judge to a jury that the significant delay between an alleged offence and a complaint may have disadvantaged the accused in conducting their defence, and that this creates a risk of wrongful conviction.

A subsidiary issue arose as to which version of s 294 of the Criminal Procedure Act 1986 applied to the trials. The section had been amended from 1 January 2007, but the appellant's charges were laid in September 2006.

  • Whether s 294 of the Criminal Procedure Act 1986 as amended in January 2007 applied to the appellant's trials, or whether the transitional provisions preserved the pre-amendment version.
  • Whether "proceedings" for the purpose of the transitional provisions commenced when charges were laid (September 2006) or when the trials began (August and September 2007).
  • Whether the trial judge's Longman directions in each trial were adequate, and specifically whether a valid Longman direction requires the judge to use the word "warning" or "warn" in terms.

Decision

Application of s 294: which version applied?

The Court considered the transitional provisions in Part 12 of Schedule 2 to the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006, which provided that the amendments did not extend to "proceedings commenced before the commencement of the amendments." McClellan CJ at CL and Hidden J agreed that "proceedings" commenced when charges were laid in September 2006, before the amendments took effect on 1 January 2007. Accordingly, the pre-amendment version of s 294 governed both trials.

Adequacy of the Longman directions

The majority (Hidden J and McCallum J) held that the trial judge's directions in both trials were adequate Longman warnings, and dismissed the appeal. McCallum J, with whom Hidden J agreed, found that a Longman direction must achieve two things: it must convey to the jury the need to scrutinise the evidence carefully because of the forensic disadvantage caused by delay, and it must expressly alert the jury to the resulting risk of wrongful conviction. The directions given by the trial judge met both requirements.

The majority rejected the proposition that a Longman direction is only valid if the judge uses the specific word "warning" or "warn." Neither High Court authority nor the prior decisions of this Court required the use of those particular words; what mattered was the substance of what was conveyed. The direction in each trial, which told the jury it "may be wrong" to convict unless the complainant's evidence was found to be "truthful and accurate" after "very careful" scrutiny, was found to be accurate and adequate.

McClellan CJ at CL dissented, taking the view that the directions fell short of a true Longman warning. His Honour considered that the judge's language, including the phrases "it may be wrong" and "well satisfied," did not convey the required emphatic caution and would have left the jury uncertain about the proper standard to apply. His Honour would have quashed the convictions and ordered new trials.

Orders Made

  • By majority (Hidden J and McCallum J): appeal dismissed.
  • McClellan CJ at CL (dissenting) would have granted leave to appeal, upheld the appeal, quashed the convictions, and ordered new trials.

Key Takeaways

  • A Longman direction requires two elements: communicating to the jury the need for careful scrutiny of evidence because of the forensic disadvantage caused by delay, and expressly alerting the jury to the consequent risk of wrongful conviction.
  • The Court of Criminal Appeal confirmed, by majority, that a Longman direction does not require the judge to use the specific word "warning" or "warn." The substance of what is conveyed is the critical question, not the particular vocabulary employed.
  • Where a statute contains transitional provisions stating that amendments do not apply to proceedings "commenced before" the commencement date, "proceedings" commence when charges are laid, not when the trial itself begins.
  • The pre-amendment version of s 294 of the Criminal Procedure Act 1986 applied to trials where charges were laid before 1 January 2007, even if the trial commenced after that date.
  • A significant division emerged on the Court as to the adequacy of the particular directions given: the dissent illustrates that language falling short of explicit, emphatic terms risks challenge, even where the majority considered the substance sufficient.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 294
- Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (NSW)
- Evidence Act 1995 (NSW), s 165B
- Evidence Act 1906 (WA)
- Crimes Act 1958 (Vic)

Key Cases
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v R (2001) 208 CLR 343
- Dyers v The Queen (2002) 210 CLR 285
- R v BWT (2002) 54 NSWLR 241
- DRE v R (2006) 164 A Crim R 400
- DPW v R (2006) 164 A Crim R 583
- R v Halmi (2005) 62 NSWLR 263
- R v Janceski (2005) 64 NSWLR 10
- Sepulveda v The Queen (2006) 167 A Crim R 108
- Gilham v The Queen (2007) 178 A Crim R 72
- Tillman v Attorney General for NSW (2007) 178 A Crim R 133
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
- R v BDX (2009) 194 A Crim R 57