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Court of Criminal Appeal 12 December 2002

R v RWB [2002] NSWCCA 504 revised - 13

[2002] NSWCCA 504

Sexual offences

Citation: R v RWB [2002] NSWCCA 504
Court: NSW Court of Criminal Appeal
Date: 12 December 2002
Judge(s): Hodgson JA, Hulme J, Hidden J

Background

The appellant was convicted in the District Court in June 2000 on five counts of indecent assault, two counts of carnal knowledge, and one count of an act of indecency. The alleged offending was said to have occurred against his daughter between 1971 and 1976, when the complainant was aged between approximately 8 and 13.

The Crown case rested almost entirely on the complainant's evidence. Supporting witnesses called by the Crown added little of direct relevance, and the appellant denied all allegations in his own evidence. The trial judge declined, both during and after the summing-up, to give the jury a direction in accordance with Longman v R (1989) 168 CLR 79, which requires the jury to be warned that it is dangerous to convict on the uncorroborated evidence of a complainant in cases involving historic allegations where delay has prejudiced the accused's ability to defend.

A notice of appeal was filed in November 2001, more than a year after sentencing in October 2000. The appellant explained the delay on the basis that he had been incorrectly advised by correctional services officers that no appeal was available, and only learned otherwise after consulting a Legal Aid solicitor. The Crown did not oppose an extension of time being granted.

  • Whether the trial judge erred in refusing to give a Longman direction warning the jury of the dangers of convicting on the complainant's uncorroborated evidence given the significant delay in prosecution
  • Whether, having allowed the appeal, the Court should order a retrial or instead enter a verdict of acquittal

Decision

The Court of Criminal Appeal found that the trial judge's refusal to give a Longman direction was an error. The Crown conceded this point in light of a series of Court of Criminal Appeal decisions handed down after the original trial. The concession also extended to the proposition that the absence of the direction warranted allowing the appeal.

On the question of remedy, the Crown sought a retrial. Under s 6 of the Criminal Appeal Act, the default outcome upon allowing a conviction appeal is a verdict of acquittal. Section 8 permits the Court to order a new trial where a miscarriage of justice has occurred and a retrial would more adequately remedy it. The onus rests on the Crown to demonstrate that a retrial is the more appropriate course, following King v R (1986) 161 CLR 423.

The Court declined to order a retrial. By the time of the appeal, the appellant had already served just over two years of a three-year non-parole period. He was 62 at sentencing, had significant medical problems, and had no relevant prior criminal record. The Court considered it practically certain that, even upon conviction at a retrial, no greater penalty than that already imposed would follow, and possibly no further custodial term would be imposed at all.

The Court also took into account the emotional burden that a retrial would impose on both the complainant and family members who had given evidence at the original trial, as well as the fact that the error requiring the appeal was not attributable to any conduct by the appellant. In those circumstances, the Court was not persuaded that a retrial would more adequately remedy the miscarriage of justice, and directed that a verdict of acquittal be entered.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • Verdict of acquittal entered
  • Order made prohibiting publication of any material that would tend to identify the complainant

Key Takeaways

  • A Longman direction, warning the jury of the danger of convicting on uncorroborated evidence in cases involving significant delay, was required in historic sexual assault proceedings of this kind; failure to give it constituted a misdirection.
  • The Court of Criminal Appeal confirmed that the Crown bears the onus of establishing that a retrial is the more appropriate remedy under s 8 of the Criminal Appeal Act, rather than the default verdict of acquittal under s 6.
  • Where an appellant has served a substantial portion of a custodial sentence, and any retrial would likely result in no additional imprisonment, those circumstances weigh against ordering a new trial.
  • The absence of fault on the appellant's part in causing the trial error is a relevant consideration when the Court exercises its discretion between a retrial and an acquittal.
  • Emotional consequences for complainants and witnesses from re-litigation of historic offences form part of the discretionary assessment when determining the most appropriate remedy following a successful conviction appeal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act (NSW), ss 6 and 8
- Criminal Appeal Rules (NSW), r 10

Cases
- Longman v R (1989) 168 CLR 79
- King v R (1986) 161 CLR 423
- R v BWT [2002] NSWCCA 60
- R v SJB [2002] NSWCCA 163
- R v Channell [2002] NSWCCA 187
- R v GEA [2002] NSWCCA 222