Citation: R v Henman [2001] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 1 February 2001
Judge(s): Giles JA, Hulme J, Bell J
Background
The appellant was convicted in the District Court on two counts of sexual intercourse without consent with a person under the age of ten years, and one count of indecent assault of a person under the age of ten years. The complainant was a niece or step-niece of the appellant, and the alleged offences were said to have occurred when she was aged four, five, and nine respectively. The first complaint was not made until 1997, when a private journal entry the complainant had made was discovered by her mother, leading to a confrontation with the appellant and police involvement.
At trial, the appellant denied all allegations. The defence called a psychiatrist, Dr Roberts, who gave evidence about the unreliability of very young children's memories, attributing those limitations substantially to incomplete brain development rather than solely to external prompting. No expert evidence was called by the Crown in response, despite the Crown having had advance notice that such evidence was likely to be led.
The trial judge refused a defence request for a direction to the jury in accordance with the High Court's decision in R v Longman, a direction designed to warn juries about the dangers of convicting on the uncorroborated evidence of a complainant where there has been a significant delay in reporting. The Crown, on appeal, conceded this omission was an error that required the convictions to be quashed.
Legal Issues
- Whether the trial judge erred by refusing to give the jury a Longman warning concerning the complainant's delayed report of the alleged offences
- Whether the verdicts were unreasonable or unsafe and unsatisfactory, having regard to the delay in reporting, the appellant's denial, and the expert evidence on children's memory
- Whether, given the Crown's concession that the convictions must be quashed, the Court should exercise its discretion to order a retrial or instead enter verdicts of acquittal
Decision
The Crown conceded on appeal that the trial judge's refusal to give a Longman direction was a legal error that could not be sustained. The Longman direction is a specific warning to jurors about the forensic difficulties that arise when a complainant delays reporting an alleged offence, and the unreliability risks that flow from that delay. Because the concession was made, the Court did not need to analyse the direction point further, and the convictions were quashed on that basis.
The Court then turned to whether to order a retrial or enter verdicts of acquittal. Hulme J identified a range of compounding problems with the trial beyond the Longman direction failure. These included inadequate cross-examination of the defence's expert witness by the Crown, questionable remarks made by the trial judge in the presence of the jury, and concerns about the admission of the complainant's private journal as evidence. Hulme J characterised the Crown case as borderline at best.
Hulme J declined to order a retrial, exercising the discretion available under section 8 of the Criminal Appeal Act. The factors weighing against a retrial included the appellant having already served four and a half months of a three-year sentence, the accumulated trial failures (none of which were the appellant's fault), the age of the alleged offences, and no indication that similar conduct was likely to recur. Giles JA, while not fully endorsing all of Hulme J's reasoning on the trial deficiencies, agreed the remaining factors were themselves compelling grounds for declining to order a new trial. Bell J agreed with the orders proposed.
Orders Made
- Appeal allowed
- Appellant's convictions quashed
- Verdicts of acquittal entered
Key Takeaways
- A Longman direction is required where a complainant has substantially delayed reporting an alleged sexual offence, and a trial judge's refusal to give that direction, even when specifically requested by defence counsel, constitutes a reversible error.
- The Court of Criminal Appeal confirmed that even where convictions are quashed on a discrete legal error, the court retains a discretion under section 8 of the Criminal Appeal Act to decline to order a retrial and instead enter acquittals.
- Factors relevant to the exercise of that discretion include time already served by the appellant, the overall strength of the Crown case, the age of the alleged offences, and the cumulative effect of multiple trial irregularities not attributable to the appellant.
- Where expert evidence on a material issue (here, children's memory capacity) is uncontradicted at trial, that unchallenged evidence forms part of the factual landscape the appellate court weighs when assessing whether a retrial is appropriate.
- Contributing failures by both prosecution and defence during the original trial, including the Crown's failure to seek or support a Longman direction and inadequate preparation by the appellant's trial solicitor, were noted as factors that ought not to be visited upon the appellant through a further trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), section 8
Cases:
- R v Longman (High Court of Australia) (precise citation not stated in the judgment)