AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
10
Court of Criminal Appeal 12 October 2010

GG v Regina

[2010] NSWCCA 230

Also reported as (2010) 79 NSWLR 194 204 A Crim R 125
Sexual offences
CRIMINAL LAW APPEAL CONVICTION WARNING TO JURY DELAY BETWEEN OFFENCE AND COMPLAINT CRIMINAL LAW

Citation: GG v Regina [2010] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 12 October 2010
Judges: Beazley JA; Buddin J; Barr AJ

Background

The appellant was convicted by a jury of three counts of sexual intercourse without consent with a person under 16, and two counts of indecent assault on a child under 16, contrary to the Crimes Act 1900. The offences were committed against his stepdaughter between March 1984 and February 1986, when she was aged between 12 and 14. He was sentenced to a total term of 3 years and 9 months with a non-parole period of 2 years and 3 months.

The trial took place in the District Court before Puckeridge DCJ and concluded with a jury verdict on 17 April 2009. There was a very substantial gap between the conduct alleged and the trial proceedings. The complainant had first disclosed the abuse to a friend in late 1987 and to a DOCS caseworker in early 1988, but formal charges were not laid and prosecuted until much later.

The appellant appealed both his conviction and his sentence. On conviction, he raised two grounds: that the trial judge failed to give an adequate warning to the jury about the dangers of convicting on the complainant's uncorroborated evidence in circumstances where the passage of time made it impossible to adequately test (known as a Longman direction), and that the trial judge failed to direct the jury properly about the complainant's delay in formally reporting the conduct. The sentence appeal concerned whether the trial judge had correctly accounted for the cumulative effect of the sentences imposed.

  • Whether the trial judge was required to give a Longman warning: a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant where that evidence could not be adequately tested due to the passage of time.
  • Whether Criminal Procedure Act 1986 s 294AA, which prohibits a judge from warning the jury that complainants as a class are unreliable, applied to this trial given its transitional provisions.
  • Whether Evidence Act 1995 s 165B, as amended by the Evidence Amendment Act 2007, applied to the trial and what effect that had on any obligation to give a delay warning.
  • Whether "commencement of proceedings" in s 165B referred to the commencement of the prosecution or the commencement of the 2009 trial, for the purposes of the transitional provision in the Evidence Act.
  • Whether the Criminal Appeal Rules r 4 (which limits an appellant's ability to raise grounds not raised at trial) was a separate barrier to the conviction appeal.
  • Whether the trial judge erred in failing to direct the jury in relation to the delay between the offending and the complaint.
  • Whether the sentencing judge erred by failing to take adequate account of the effect of cumulation when fixing the non-parole period.

Decision

The Longman direction and s 294AA

The Crown accepted that, by virtue of the transitional provision in Schedule 2, Part 12, clause 51 of the Criminal Procedure Act 1986, s 294AA did not apply to this trial. That provision had been introduced in 2006 and prohibits a judge from warning a jury that complainants as a class are unreliable witnesses. Because the relevant transitional provision excluded it, the prohibition was not operative here.

Section 165B of the Evidence Act

The Court examined whether s 165B, introduced by the Evidence Amendment Act 2007 and commencing 1 January 2009, applied to the trial. That section allows a trial judge to warn the jury about the disadvantages to an accused caused by delay, but does not require such a warning. The answer turned on the meaning of "commencement of proceedings" in the Evidence Act transitional provision at Schedule 2, Part 3, clause 17. The Court concluded that s 165B did apply to this trial. Under s 165B, the trial judge had a discretion to give such a warning but was not obliged to do so, meaning any failure to give one could not, of itself, constitute a legal error.

The conviction grounds

The Court dismissed both grounds of appeal against conviction. The trial judge's directions on delay were found to be adequate in the circumstances. The Court also noted that, under the Criminal Appeal Rules r 4, grounds not raised at trial face an additional hurdle, which provided a further basis on which the Longman direction ground could be rejected.

Sentence appeal

The Court granted leave to appeal against sentence but dismissed the appeal. The appellant argued that the effective non-parole period was approximately 60 per cent of the total aggregate sentence, which he said indicated a failure to properly account for cumulation. The Court accepted the Crown's submission that the judge's remarks about a 50 per cent ratio were directed at the individual sentences for specific counts, not the aggregate. The Court found the total sentence and non-parole period were appropriate and that no other sentence was warranted in law.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the transitional provisions governing the Criminal Procedure Act 1986 s 294AA and the Evidence Act 1995 s 165B require careful attention: the applicability of each provision to a given trial depends on when "proceedings commenced" as defined in the relevant transitional clause.
  • Section 165B of the Evidence Act 1995, as amended in 2007, confers a discretion on the trial judge to warn the jury about the disadvantages to an accused arising from delay, but imposes no obligation to do so. A failure to give such a warning is not, without more, a ground of appeal.
  • Where a Longman direction was not sought at trial, the Criminal Appeal Rules r 4 may bar an appellant from raising the absence of that warning as a ground on appeal.
  • A very significant gap between the commission of alleged offences (1984 to 1986) and the trial (2009) did not, in this case, render the directions on delay inadequate or the conviction unsafe.
  • In dismissing the sentence appeal, the Court reinforced that a non-parole period exceeding 50 per cent of an aggregate sentence is not necessarily erroneous, particularly where the sentencing judge's remarks indicate the ratio was applied at the level of individual counts rather than the aggregate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1)
- Criminal Procedure Act 1986 (NSW), s 294AA; Sch 2, Pt 12, cl 51
- Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (NSW)
- Evidence Act 1995 (NSW), s 165B; Sch 2, Pt 3, cl 17
- Evidence Amendment Act 2007 (NSW)
- Criminal Appeal Rules, r 4

Key Cases
- Longman v R [1989] HCA 60; (1989) 168 CLR 79
- Crofts v R [1996] HCA 22; (1996) 186 CLR 427
- Power v R [1974] HCA 26; (1974) 131 CLR 623
- Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540
- MJL v Regina [2007] NSWCCA 261
- DPP (NSW) v PM [2006] NSWCCA 297; (2006) 67 NSWLR 46
- TJ v R [2009] NSWCCA 257
- B v R [2008] NSWCCA 85
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10