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8
Court of Criminal Appeal 31 March 2004

R v MM [2004] NSWCCA 81 revised - 9

[2004] NSWCCA 81

Also reported as (2004) 145 A Crim R 148
Sexual offences
LONGMAN DIRECTION SUFFICIENCY WARNING COMMENT COUNSELS' ADDDRESSES PROPRIETY

Citation: R v MM [2004] NSWCCA 81 (revised 9 November 2004); reported at 145 A Crim R 148
Court: New South Wales Court of Criminal Appeal
Date: 31 March 2004
Judge(s): Levine J, Howie J, Smart AJ

Background

The appellant was a teacher tried by jury in the District Court before Black DCJ in August and September 2002. He faced nine counts on the indictment, comprising offences of indecent assault and buggery alleged to have been committed against a male student between 1982 and 1983, when the complainant was aged 14 to 16. The appellant was the complainant's tutor master and was involved in the school's naval cadets program.

The complainant did not approach police until January 1999, meaning the appellant was not made aware of the allegations until approximately 17 years after the offences were said to have occurred. A comprehensive police statement was taken over several months in 1999, and the appellant was charged in September of that year. The jury convicted on eight of the nine counts.

The appellant challenged the conviction on six grounds. The central grounds concerned the adequacy of the trial judge's warning about the dangers of convicting on delayed complaint evidence (known as a "Longman direction"), the conduct of the Crown Prosecutor's closing address, a failure to warn about the reliability of two prosecution witnesses, and whether the verdicts were unreasonable.

  • Whether the trial judge gave a sufficient Longman direction: that is, whether the jury was adequately and emphatically warned of the dangers of convicting on the complainant's evidence given the lengthy delay before complaint, and of the specific prejudice that delay caused to the defence
  • Whether the Crown Prosecutor's closing address undermined or neutralised the effect of the trial judge's Longman direction
  • Whether the trial judge was required to warn the jury about the potential unreliability of two other prosecution witnesses whose recollections may have been affected by the passage of time
  • Whether the jury's verdicts were unreasonable or unsupported by the evidence

Decision

The three judges each wrote separately, and they were divided on the outcome, producing a majority decision to dismiss the appeal.

Grounds 1 and 2 (adequacy of the Longman direction): Levine J and Howie J differed in their assessment. Levine J concluded the direction, while not ideal in all respects, was ultimately sufficient. Smart AJ disagreed, finding the direction did not clearly and emphatically convey to the jury the specific ways in which the delay had prejudiced the appellant's ability to defend himself, which he regarded as a fundamental requirement of the Longman warning.

Ground 3 (Crown Prosecutor's closing address): Smart AJ found the Crown Prosecutor's closing address was impermissible in several respects. The prosecutor had made comments that served to minimise or undercut the Longman warning, encroaching on matters that fell within the province of the trial judge. Smart AJ found this had the effect of neutralising the judge's directions and amounted to a miscarriage of justice. He was critical that the trial judge had not intervened to restrict the address. Levine J and Howie J did not uphold this ground to the same effect, and the majority dismissed the conviction appeal.

Ground 5 (warning about prosecution witnesses): The Court was in substantial agreement with Levine J's analysis. No error was established on this ground.

Ground 6 (unreasonable verdicts): All judges agreed that the verdicts were not unreasonable. There was a rational basis for the jury to convict on the counts found proven and to acquit on count 6. While there was no direct corroborating evidence, other supporting evidence went to the complainant's account. It was open to a reasonable jury, acting on that evidence, to be satisfied of guilt beyond reasonable doubt.

Orders Made

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

(Note: Smart AJ, dissenting from the majority on grounds 1 and 3, would have allowed the conviction appeal, quashed the convictions, and ordered a new trial on counts 1 to 5 and 7 to 9.)

Key Takeaways

  • A Longman direction requires a clear and emphatic warning that it is dangerous to convict on the complainant's evidence without careful scrutiny, together with specific identification of the ways in which the lengthy delay has actually prejudiced the accused's ability to mount a defence.
  • Where trial counsel fails to ask the trial judge to remedy an allegedly deficient Longman direction at the conclusion of the summing-up, that silence does not preclude a ground of appeal, though it is a recurring feature of such appeals noted with concern by the Court of Criminal Appeal.
  • A Crown Prosecutor's closing address must not minimise, qualify, or provide a running commentary on the trial judge's Longman direction; doing so may encroach on the province of the judge and, in sufficiently serious cases, give rise to a miscarriage of justice.
  • Unreasonable verdict grounds require the appellate court to assess whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt; here, supporting evidence of the complainant's account was sufficient to sustain that conclusion even in the absence of direct corroboration.
  • The Court noted that parties and their representatives are obliged to inform the Court of Criminal Appeal promptly of any anonymity or suppression orders made at trial, and anonymity granted to a complainant does not automatically extend to the accused in every case.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 159, 291, 292 (formerly ss 118 and 119)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Evidence Act 1995 (NSW), s 165(2)

Cases:
- Longman v The Queen (1989) 168 CLR 79 (the foundational authority on delayed complaint warnings)
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343
- Ryan v The Queen (2001) 206 CLR 267
- The Queen v AB (1999) 198 CLR 111
- MFA v The Queen (2002) 193 ALR 184
- R v BWT / R v KWT (2002) 54 NSWLR 241
- R v Markuleski (2001) 52 NSWLR 82
- R v Simpson (2001) 53 NSWLR 704
- R v Stewart (2001) 52 NSWLR 301
- R v Johnston (1998) 45 NSWLR 362
- R v Gallagher (1991) 23 NSWLR 220
- R v Cartwright (1989) 17 NSWLR 243
- Various other NSW Court of Criminal Appeal decisions cited in the judgment