Citation: REGINA v. GARLICK [2003] NSWCCA 398 revised - 6/02/2004
Court: NSW Court of Criminal Appeal
Date: 18 December 2003
Judge(s): Sully J, Greg James J, Adams J
Background
The appellant had been convicted in the District Court before Moore DCJ and a jury on six counts of sexual offences against a male complainant. The alleged offences occurred over several years in the early 1960s, when the complainant was aged between 13 and 17 and the appellant was in his mid-to-late twenties.
The complainant did not come forward to police until March 1997, more than 30 years after the events. By the time of trial in mid-2000, approximately 36 to 39 years had elapsed since the alleged offending. There were no independent witnesses and no admissions by the appellant; the case rested almost entirely on the complainant's word against the appellant's.
Separately, the appellant had pleaded guilty before Puckeridge DCJ to two further offences, receiving sentences made cumulative on those imposed by Moore DCJ. Both appeals required leave to appeal out of time.
Legal Issues
- Whether the trial judge's directions to the jury adequately addressed the effect of the substantial delay in complaint, as required by the principles in Longman v The Queen
- Whether the admitted misdirection amounted to a miscarriage of justice to which the proviso under s 6 of the Criminal Appeal Act 1912 could apply
- Whether the appropriate remedy for that miscarriage was a new trial or a directed acquittal
- What consequential orders were required in relation to the cumulative sentences imposed on the guilty pleas, given that those sentences were structured to commence after the sentences now being quashed
Decision
The Crown conceded the first ground of appeal entirely. The trial judge had not given the jury any warning of the kind required by Longman, either as to the danger of convicting on the complainant's uncorroborated evidence after such a delay, or as to the prejudice caused to the appellant's ability to test the allegations and gather evidence in his defence. That failure constituted a miscarriage of justice, and the Crown also accepted that the proviso under s 6(1) of the Criminal Appeal Act 1912 (which allows a conviction to stand despite an error if no substantial miscarriage of justice occurred) could not cure the defect.
The remaining question was whether to order a new trial under s 8 of the Act or to direct acquittals. The Court noted that s 8 requires a new trial only where such a miscarriage can be "more adequately remedied" by that course than by any other available order. The Court applied the principle from King v The Queen that all circumstances must be weighed, including personal considerations and the overall justice of the case.
Greg James J, delivering the leading judgment, identified a combination of factors pointing strongly against a retrial. The offences were over 30 years old. The appellant had already served a substantial portion of his sentence. There was little if any corroboration of the complainant's account, and the evidentiary record would be no stronger at any future trial. In those circumstances, the Court declined to exercise its discretion to order a retrial and instead directed verdicts of acquittal.
Sully J added three observations: the decision was not to be taken as diminishing the seriousness of the conduct alleged; it did not weaken the general proposition that a Longman misdirection will more often than not be adequately remedied by a new trial; and the directed acquittals in this case were justified by a combination of very unusual circumstances specific to these proceedings.
Orders Made
- Leave to appeal out of time granted in both matters (CCA 60371/03 and CCA 60372/03)
- Appeal in CCA 60371/03 allowed; convictions and sentences quashed; directed verdict of acquittal entered on each count
- In CCA 60372/03, leave to appeal against sentence granted; appeal allowed to the extent of varying the commencement date of the sentences and non-parole periods from 3 December 2004 to 13 July 2000, so that all time actually served in custody was credited against those offences
Key Takeaways
- A Longman warning is required in historic sexual offence cases where the prosecution rests substantially on the complainant's evidence and the delay has prejudiced the accused's ability to respond: the warning must cover both the danger of convicting on such evidence alone and the accused's reduced capacity to test allegations after many years.
- Where a Longman direction is entirely omitted, a miscarriage of justice is established and the proviso under s 6 of the Criminal Appeal Act 1912 is unavailable to preserve the conviction.
- Under s 8 of the Criminal Appeal Act 1912, a retrial is not automatic following a miscarriage: the court must be satisfied that a new trial would more adequately remedy the injustice than any other available order, having regard to all the circumstances.
- Directed acquittals, rather than retrials, may be appropriate where the offences are of great age, the accused has substantially served the sentence, and there is little or no corroborating evidence that would strengthen any future prosecution.
- Where sentences on later offences were structured to run cumulatively from a date tied to the now-quashed sentences, the Court of Criminal Appeal can vary commencement dates to ensure time actually served in custody is not lost.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 6, 8
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 58
Cases
- Longman v The Queen (1979) 168 CLR 79
- Crampton v The Queen (2000) 206 CLR 161
- DPP (Nauru) v Fowler (1984) 154 CLR 627
- King v The Queen (1986) 161 CLR 423