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Court of Criminal Appeal 2 October 2001

REGINA v COLLINS [2001] NSWCCA 386 revised - 26

[2001] NSWCCA 386

Sexual offences
APPEAL TRIAL JUDGE'S DIRECTIONS TO JURY SUMMING UP SEXUAL ASSAULT WHETHER DEFENCE CASE FAIRLY PUT DIRECTIONS REGARDING COMPLAINT

Citation: REGINA v COLLINS [2001] NSWCCA 386 revised – 26/10/2001
Court: NSW Court of Criminal Appeal
Date: 2 October 2001
Judge(s): Mason P; Sully J; Newman AJ

Background

The appellant was convicted in the District Court after a three-week jury trial on 11 counts, including aggravated indecent assault, aggravated sexual intercourse without consent, employing a person under 18 for pornographic purposes, and multiple counts of aggravated sexual intercourse with a person aged between 10 and 16. He pleaded guilty separately to two drug supply charges. The primary complainant, KM, was aged between 10 and 12 at the relevant times. The appellant was a close family friend, aged between 46 and 48 during the offending period.

The Crown case described a gradual escalation of sexual exploitation over several years, involving the primary complainant and, in one count, a second complainant who was a friend of the first. The appellant denied all sexual offences at trial.

On appeal, the appellant challenged not the verdicts directly but the manner in which the trial judge directed the jury during the summing-up.

  • Whether the trial judge's summing-up fairly presented the defence case, including whether disproportionate time was devoted to Crown evidence relative to defence material
  • Whether the directions concerning complaint (and the absence of complaint) were adequate and accurate
  • Whether a Longman direction was required, given the passage of time between the alleged offences and the trial
  • Whether the trial judge erred in directing the jury on the complainant KM's motive to lie
  • Whether the jury was improperly invited to use evidence relating to one count when considering another

Decision

The Court of Criminal Appeal, with all three judges in agreement, dismissed the appeal across all grounds.

On the balance of the summing-up, the Court held that the balance of a summing-up must be assessed by reading it as a whole, not by measuring the proportion of time spent on the Crown case versus the defence case. When read in its entirety, the trial judge's summing-up was found to be balanced.

On complaint directions, the Court found no error. The trial judge's directions did not suggest that there were unstated reasons, known only to the judge, why the complainants had remained silent. The observation that absence of complaint was "something of a two-edged sword" was properly open to the trial judge to make.

On the Longman direction, the Court held that the facts did not require one. A Longman direction is required where the passage of time has deprived an accused of a proper means to test the complainant's allegations. Here, the Court found no such deprivation. On the motive to lie, the Court rejected the submission that the trial judge had impermissibly invited the jury to reason from the question "Why would KM lie?" in a way that took the issue outside its proper context. Finally, on cross-count use of evidence, the Court acknowledged that a passage in the summing-up referring to "context" and cautioning against looking at each charge "in isolation" was "unfortunate" in its expression. However, given the repeated directions to assess each count separately, the absence of any propensity-style reasoning in the summing-up overall, and the fact that no objection or request for redirection was made at trial, the Court concluded no miscarriage of justice resulted.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The balance of a jury summing-up is assessed by reading it as a whole, not by calculating the relative time devoted to Crown and defence material.
  • A Longman direction is not automatically required in historical sexual assault cases. It is warranted only where the passage of time has actually deprived the accused of a proper means to test the complainant's evidence.
  • Directions noting the absence of complaint as a "two-edged sword" are permissible, provided they do not suggest to the jury that the judge holds undisclosed reasons for why a complainant did not come forward.
  • In dismissing the cross-count evidence ground, the Court treated the absence of a contemporaneous objection or redirection request at trial as a relevant factor in concluding that no miscarriage occurred, even where a passage in the summing-up was described as "unfortunate."
  • Directions on a complainant's motive to lie will not constitute error simply because the jury is invited to consider that issue, so long as the direction keeps the question within its proper factual and contextual limits.

Legislation and Cases Referenced

Cases:
- R v Lars (1994) 73 A Crim R 91
- Regina v Harvey (NSWCCA, 9 April 1998, unreported)
- R v Williams (1999) 104 A Crim R 260
- R v Colby [1999] NSWCCA 261
- Longman v The Queen (1989) 168 CLR 79
- Crampton v R (2000) 176 ALR 369
- Doggett v The Queen [2001] HCA 46
- R v Mitchell (NSWCCA, 5 April 1995, unreported)
- R v Mayberry [2000] NSWCCA 531
- R v RCK (NSWCCA, 12 December 1995, unreported)

Legislation: No specific legislation was cited in the decision text.