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Court of Criminal Appeal 10 February 2010

ST v Regina

[2010] NSWCCA 5

Sexual offences
APPEAL CRIMINAL CONVICTION FAILURE TO GIVE LONGMAN WARNING VERDICT UNREASONABLE POWERS OF COURT ON APPEAL

Citation: ST v Regina [2010] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 10 February 2010
Judge(s): Basten JA, Howie J, Hislop J

Background

The appellant was convicted in the District Court of child sexual assault offences following a trial before Blackmore DCJ. The complainant alleged two incidents of sexual abuse, the first said to have occurred when he was in kindergarten and the second shortly after the appellant had moved from the relevant address.

On appeal, the appellant challenged both the safety of the convictions and the adequacy of the trial judge's directions to the jury. A central issue concerned whether the judge had failed to give what is known as a "Longman warning," a direction cautioning the jury about the danger of convicting on uncorroborated evidence of historical sexual offending where the passage of time has prejudiced the accused's ability to defend the charges.

The Court of Criminal Appeal allowed the appeal at the November 2009 hearing and reserved its reasons, along with the question of what further orders should follow the quashing of the convictions.

  • Whether the trial judge's failure to give a Longman warning constituted a miscarriage of justice
  • Whether the verdict was unreasonable or unsupportable having regard to the evidence
  • Whether, once the convictions were quashed, the Court should order a retrial or direct a verdict of acquittal
  • What principles govern the exercise of the Court's discretion under ss 6, 7, and 8 of the Criminal Appeal Act 1912 (NSW)

Decision

On the Longman warning: The Court found that the failure to give a Longman warning constituted a miscarriage of justice. Such a warning is required where delay has caused forensic prejudice to the accused, as it had here, given the complainant's vagueness about exactly when each incident occurred and the absence of corroborating evidence from family members or physical injuries.

On whether the verdict was unreasonable: Howie J, with whom Hislop J agreed, was not persuaded that the verdict was unreasonable. Despite uncertainties about timing, the complainant's account was internally consistent and his mother supported a key aspect of his evidence. The complainant's demeanour and the overall tenor of his evidence gave Howie J a sense of honesty and accuracy, though his Honour acknowledged he had not had the advantage of observing the witnesses directly.

On whether to order a retrial: The Court turned to ss 6 and 8 of the Criminal Appeal Act 1912. Under s 6, quashing a conviction ordinarily requires a direction of acquittal, but s 8 provides a "special provision" allowing a new trial where a miscarriage of justice has occurred and a retrial would more adequately remedy it. The Court accepted that there was sufficient evidence to support a conviction absent the misdirection and that the interests of justice did not require an acquittal. The fact that a significant portion of the sentences had already been served was a factor weighing against retrial, but it was not determinative.

On the power to order a retrial: Following Spies v The Queen and Peacock v The King, the Court affirmed the principle that where evidence is sufficient to support conviction and the misdirection alone caused the appeal to succeed, a retrial is ordinarily appropriate unless the interests of justice affirmatively require acquittal. The discretion to order a retrial was properly engaged on the facts.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • Retrial ordered on the counts in the indictment

Key Takeaways

  • A failure to give a Longman warning, which alerts the jury to the dangers of convicting on uncorroborated historical sexual assault evidence where delay has caused forensic prejudice, can constitute a miscarriage of justice sufficient to quash a conviction.
  • Under s 8 of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may order a retrial rather than direct an acquittal where the evidence at the first trial was sufficient to support a conviction and the misdirection alone produced the miscarriage.
  • The ordinary consequence of allowing an appeal under s 6 is a direction of acquittal; s 8 operates as a "special provision" creating an exception that allows a retrial where the circumstances warrant it.
  • Partial service of a sentence weighs against ordering a retrial but does not preclude one, particularly where the evidence against the accused is substantial.
  • Finding a verdict unreasonable requires more than identifying inconsistencies or gaps in the complainant's evidence; the court must be persuaded, considering the whole of the evidence, that the jury should have had a reasonable doubt about the complainant's general reliability.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 6, 7, 8
- Criminal Procedure Act 1986 (NSW), s 294
- Criminal Procedure Amendment (Sexual and other Offences) Act 2006 (NSW)

Cases
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- Spies v The Queen [2000] HCA 43; 201 CLR 603
- King v The Queen [1986] HCA 59; 161 CLR 423
- Peacock v The King [1911] HCA 66; 13 CLR 619
- The Queen v Taufahema [2007] HCA 11; 228 CLR 232
- Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627
- Andrews v The Queen [1968] HCA 84; 126 CLR 198
- Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Regina v Pedrana [2001] NSWCCA 66; 123 A Crim R 1
- TJ v R [2009] NSWCCA 257
- TK v R [2009] NSWCCA 151
- R v RND [1999] NSWCCA 122