AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 24 April 2001

R v GJH [2001] NSWCCA 128 revised - 27

[2001] NSWCCA 128

Also reported as (2001) 122 A Crim R 361
Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE RAPE MISCARRIAGE OF JUSTICE FAILURE TO GIVE LONGMAN DIRECTION

Citation: R v GJH [2001] NSWCCA 128 revised 27/04/2001; reported at 122 A Crim R 361
Court: NSW Court of Criminal Appeal
Date: 24 April 2001
Judge(s): Stein JA; Wood CJ at CL; Studdert J

Background

The appellant was tried in the District Court at Dubbo before Morgan DCJ and a jury of twelve on four counts of indecent assault of a female under the age of sixteen years and one count of rape. The alleged offending related to events said to have occurred in the late 1970s and early 1980s, meaning the case involved a significant passage of time between the alleged offending and the trial.

The jury convicted the appellant of two counts of indecent assault and the count of rape, while acquitting him on the remaining two counts of indecent assault. The appellant appealed to the Court of Criminal Appeal on five grounds, each targeting alleged deficiencies in the trial judge's summing-up to the jury.

  • Whether the trial judge failed to give a sufficient Longman direction, warning the jury of the danger of convicting on a complaint involving lengthy delay
  • Whether the trial judge should have directed the jury on how to proceed if they were not satisfied that the complainant was telling the truth on one or more individual counts
  • Whether the trial judge was required to direct the jury on intoxication, given evidence that the appellant may have been affected by alcohol at the relevant times
  • Whether the trial judge adequately directed the jury regarding the use it could make of alleged lies told by the appellant, including whether those lies went to credibility or evidenced a consciousness of guilt
  • Whether the directions given on alibi evidence were deficient, including on onus of proof and the effect of late notice

Decision

Ground 1: Longman direction. The Court of Criminal Appeal found the trial judge's treatment of delay fell short of what Longman and Crampton required. Although the trial judge drew the jury's attention to delay and identified specific areas where evidence may have been lost, she did not express the danger of delay in the terms those authorities demanded. The summing-up was described as comprehensive comment, not the unmistakable and firm warning necessary in a case of such lengthy delay. The appellant was entitled to a new trial on this ground alone.

Ground 2: Direction on multiple counts. The Court doubted whether the direction urged by the appellant (drawn from RAT) was strictly required, but declined to decide the point. As the appellant was already entitled to a new trial on other grounds, the issue was left unresolved.

Ground 3: Intoxication direction. The Court accepted that a direction on intoxication was technically required, as evidence existed that the appellant was affected by alcohol and the elements of knowledge and lack of consent still had to be proved. However, because the defence was one of outright denial rather than a dispute about consent, the Court found no miscarriage of justice resulted from the omission.

Ground 4: Lies direction. The Court found the summing-up was plainly inadequate under the principles in Edwards and Zoneff. It was unclear whether the prosecution relied on the alleged lies as going to credibility or as evidence of consciousness of guilt, yet the trial judge did not require the Crown to clarify its position and did not give the jury proper guidance on either basis. The Crown itself conceded the jury received no proper assistance on what to do if they disbelieved the appellant. This ground, together with Ground 1, was sufficient to quash the convictions.

Ground 5: Alibi directions. The Court found that while the trial judge mentioned the failure to give statutory notice of the alibi, she gave the jury no guidance on what to make of it: whether it went to weight, whether it might evidence consciousness of guilt, where the onus of proof lay, or the consequences of rejecting the alibi. The Court confirmed that appropriate directions on those matters should be given in relevant cases. Counsel properly conceded this ground alone would not have produced a miscarriage of justice, but it compounded the other deficiencies identified.

Orders Made

  • Appeal allowed (by reference to Grounds 1 and 4)
  • Convictions quashed and new trial ordered

Key Takeaways

  • A Longman warning in cases involving lengthy delay must be expressed in terms of "dangerousness" and must constitute a firm, unmistakable warning to the jury, not merely a comprehensive comment drawing attention to the passage of time.
  • Where alleged lies are strongly pressed by the prosecution, the trial judge must identify whether they are relied upon as going to credibility or as evidence of consciousness of guilt, and direct the jury accordingly; failure to do so in accordance with Edwards and Zoneff can constitute a miscarriage of justice.
  • An intoxication direction may be required as a matter of law even where its practical relevance appears limited by the way the defence is run, though failure to give it will not always result in a miscarriage of justice.
  • Where alibi evidence is raised at trial, the directions to the jury should address the onus of proof on alibi, the consequence if the alibi is reasonably possible, and the principle that rejection of an alibi does not automatically establish guilt.
  • Multiple summing-up deficiencies, each individually of varying gravity, can collectively compound to the point where the overall trial is found to have miscarried.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 63, 76
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 48

Cases
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) 176 ALR 369
- Mayberry [2000] NSWCCA 531
- Johnston (1998) 45 NSWLR 362
- King [2000] NSWCCA 507
- Jones v The Queen (1997) 191 CLR 439
- RAT (2000) 111 A Crim R 360
- Stokes and Difford (1990) 51 A Crim R 25
- BRS v The Queen (1999) 191 CLR 275
- Edwards v The Queen (1993) 178 CLR 193
- Zoneff v The Queen (2000) 74 ALJR 895
- J No. 2 (1998) 3 VR 602
- Steeden [1994] NSWCCA (19 August 1994)
- Visser [1994] NSWCCA (29 July 1994)