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Court of Criminal Appeal 5 September 2001

R v Ball [2001] NSWCCA 352 revised - 4

[2001] NSWCCA 352

Sexual offences

Citation: R v Ball [2001] NSWCCA 352 revised - 4/10/2001
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2001
Judge(s): Smart AJ (leading judgment), Bell J, Howie J (both agreeing)

Background

The appellant was an elderly man convicted at trial on one count of buggery and three counts of indecent assault alleged to have occurred in 1980 to 1981 against a male complainant (WJD), who was born in 1965. The first complaint was not made until September 1993, meaning approximately 12 years elapsed between the alleged offences and the complaint to police. The trial took place in late 1997, roughly 16 to 17 years after the events in question.

Separately, the appellant had pleaded guilty on 27 October 1997 to multiple counts of homosexual intercourse and acts of indecency against two other victims (RZ and LC), involving offending between 1990 and 1995. Sentences on both indictments ran concurrently. The appellant sought an extension of time and leave to appeal against both the conviction on the WJD indictment and the severity of sentences on the guilty plea indictment.

  • Whether the trial judge's failure to give a direction in accordance with Longman v The Queen (1989) 168 CLR 79 constituted a miscarriage of justice, given the lengthy delay between the alleged offences and complaint and the Crown's dependence on the complainant's evidence.
  • Whether, if the conviction were set aside, the Court should enter verdicts of acquittal or order a new trial.
  • Whether the sentences on the guilty plea indictment required adjustment as a consequence of the change to the concurrent sentence structure.

Decision

The Court found that the trial judge failed to give a Longman direction. The summing-up addressed delay only in traditional terms, telling the jury that delay in complaint did not necessarily indicate a false allegation. However, the judge did not direct the jury that, because the Crown case depended entirely on WJD's evidence, it was essential to scrutinise that evidence with considerable care. Critically, the jury was not warned of the difficulties the appellant faced in defending himself against allegations made so many years after the alleged events.

The Court drew on the High Court's subsequent emphasis in Crampton and Doggett on the importance of Longman directions, including the need to assess whether any corroborating evidence was sufficiently specific and central to relieve the trial judge of the obligation to warn. Here, the support from WJD's mother was limited to evidence of outings and frequent visits, falling well short of that threshold. The Court concluded that a full Longman direction may have led the jury to a different verdict, and the conviction could not stand.

On the question of remedy, the Court declined to enter verdicts of acquittal. Although the appellant was 79 years old and had served nearly four years of his sentence, the offences were serious and the Crown case was not weak. A new trial was ordered.

Because the conviction sentences had been running concurrently with the guilty plea sentences, quashing those convictions required the Court to resentence on the guilty plea matters. The Court imposed revised sentences that reflected the seriousness of the conduct, including a pattern of grooming young victims over extended periods, while acknowledging the appellant's age and the practical limits on the utility of a longer head sentence.

Orders Made

  • Extension of time granted; leave to appeal against conviction granted; conviction appeal allowed; sentences on the conviction indictment quashed; new trial ordered on the buggery count and three counts of indecent assault.
  • Leave to appeal against sentence on the guilty plea indictment granted; sentence appeal allowed; original sentences quashed.
  • In substitution: a fixed term of three years imposed on each charge of homosexual intercourse, commencing 4 November 1997 and expiring 3 November 2000.
  • On each charge of assault with an act of indecency: two and a half years imprisonment commencing 4 November 2000 and expiring 3 May 2003, with a non-parole period of 18 months commencing 4 November 2000 and expiring 3 May 2002.

Key Takeaways

  • A Longman direction is required where the Crown case depends substantially or entirely on a complainant's evidence and a significant delay separates the alleged offending from the complaint; a general direction about delay in complaint does not satisfy this obligation.
  • The Court of Criminal Appeal confirmed, applying Crampton and Doggett, that corroborating evidence must be assessed for its specificity and centrality before a trial judge can be relieved of the duty to give a Longman direction; general evidence of association between a complainant and an accused is unlikely to suffice.
  • Quashing convictions that were serving concurrently with sentences on other matters may require consequential resentencing on those other matters to preserve the integrity of the overall sentence structure.
  • A new trial, rather than acquittal, remains the appropriate remedy where the Crown case was not weak and the failure lay in the direction given, not in the sufficiency of the evidence.
  • The non-parole period imposed on resentencing departed from the usual ratio of non-parole to head sentence, with the Court finding that the gravity of the offending and the appellant's age together justified the particular structure adopted.

Legislation and Cases Referenced

Cases:
- Longman v The Queen (1989) 168 CLR 79 (at 90-91, 95-96, 108-109)
- R v Crampton (2001) 75 ALJR 140-141
- Doggett v The Queen [2001] HCA 46

Legislation: None cited.