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Court of Criminal Appeal 3 April 2003

Regina v GS [2003] NSWCCA 73 revised - 10

[2003] NSWCCA 73

Sexual offences
SEXUAL OFFENCES DELAY IN COMPLAINT SUFFICIENCY OF "LONGMAN" DIRECTIONS USE OF EVIDENCE OF "UNCHARGED ACTS".

Citation: Regina v GS [2003] NSWCCA 73 revised – 10/04/2003
Court: New South Wales Court of Criminal Appeal
Date: 3 April 2003
Judge(s): Santow JA; Buddin J; Smart AJ

Background

The appellant was convicted on ten counts of sexual misconduct against a complainant who was the daughter of his de facto partner. The alleged offending spanned from May 1988 to February 1996, during which time the complainant was aged between approximately 7 and 14 or 15 years old. The offences occurred across multiple locations, including a café in Kandos and residential addresses in Goulburn.

The appellant was sentenced in the District Court to an effective overall term of four years' imprisonment with a two-year non-parole period. No appeal against sentence was brought; the appeal was confined to the convictions.

At trial, the Crown led evidence of both the charged offences and additional uncharged sexual acts, described as "relationship evidence." The delay between the alleged offending and the complainant's report was significant, spanning a period of years.

  • Whether the trial judge's directions reversed the onus of proof
  • Whether the trial judge gave a sufficient warning to the jury about the dangers of convicting on evidence affected by significant delay in complaint (a so-called "Longman direction")
  • Whether the trial judge adequately directed the jury on the limited use it could make of evidence of uncharged sexual acts
  • Whether the trial judge failed to assist the jury by reminding them of evidence when requested

Decision

The Court of Criminal Appeal allowed the appeal and quashed all convictions. Buddin J delivered the principal judgment, with which Santow JA agreed, and Smart AJ added further observations. The court found that the trial miscarried on more than one ground.

On the Longman direction, the court held that the trial judge's directions were deficient. A Longman direction requires the jury to be warned in clear terms about the specific difficulties an accused faces in defending charges where there has been significant delay, including the erosion of the accused's ability to test the evidence and the potential loss of exculpatory material. The court noted that, following the High Court decisions in Doggett, Crampton, and Longman itself, there will be very few cases where corroborative evidence, even if apparently strong, will justify dispensing with such a direction entirely. This is especially so where the corroborative evidence is itself challenged.

On the uncharged acts, the court found that the trial judge failed to give adequate directions about the limited use the jury could make of evidence of uncharged sexual conduct. Such evidence is not proof of the charged offences and the jury required clear guidance on this point.

Smart AJ elaborated on the broader importance of the delay warning, observing that significant delay "must have some effect" on the quality of evidence and the fairness of the proceedings, and that the effect is "virtually incapable of proof." This uncertainty itself heightens the need for a warning, which serves to alert the jury to dangers they may not have appreciated independently.

Orders Made

  • Appeal against convictions allowed
  • Convictions and sentences quashed
  • New trial ordered on all counts

Key Takeaways

  • A Longman direction, warning the jury about the dangers of delayed complaint and the disadvantage delay causes the accused, is required wherever there has been significant delay in a sexual offence prosecution. Following the High Court's approach in Doggett, only exceptional corroborative evidence could justify omitting such a direction, and even then the bar is very high.

  • Where corroborative evidence relied upon to justify dispensing with a Longman direction is itself contested at trial, the case for giving the warning is strengthened, not reduced.

  • Evidence of uncharged sexual acts admitted as "relationship evidence" requires specific and adequate directions from the trial judge limiting the jury's use of that material. A failure to give such directions can constitute a miscarriage of justice.

  • The Court of Criminal Appeal confirmed that the purpose of a delay warning is not to preclude conviction, but to ensure the jury appreciates and carefully weighs the specific forensic disadvantages imposed on the accused by the passage of time.

  • Significant delay is treated as virtually impossible to assess with precision, because what has been lost, forgotten, or rendered unavailable may itself be unknowable. This inherent difficulty underpins the strict judicial approach to delay warnings in historic sexual offence cases.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules

Cases:
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343
- Brisbane South Regional Health Authority v Taylor (1996–1997) 186 CLR 541
- R v Beserick [1993] 30 NSWLR 510
- R v BWT [2002] 54 NSWLR 241
- Reg v Lawrence [1982] AC 510
- R v TAB [2002] NSWCCA 274
- R v WRC [2002] NSWCCA 210