Citation: Regina v Roddom [2001] NSWCCA 168 revised - 9/05/2001
Court: NSW Court of Criminal Appeal
Date: 23 April 2001
Judge(s): Meagher JA, Sully J, Howie J
Background
The appellant was tried before a jury in the District Court on three counts of sexual intercourse with a child under ten years and one count of aggravated indecent assault of a child under sixteen. The alleged offences occurred in 1989 and involved the daughter of the appellant's de facto wife, who was six and seven years old at the time of the alleged incidents.
The complainant did not disclose the alleged abuse until approximately five years after the events. She initially told a school friend, using a false name for the appellant, before later identifying him. She subsequently disclosed the allegations to her brother, her sister, and her mother. The appellant denied all allegations at trial and suggested the complainant was motivated by personal grievances.
The jury convicted the appellant on all counts. He was sentenced to a total term of five years imprisonment, comprising a minimum term of three years and an additional term of two years. The appellant did not challenge the sentence but appealed his convictions on two grounds.
Legal Issues
- Whether the trial judge adequately warned the jury about the disadvantage suffered by the accused as a result of the complainant's delay in making a complaint
- Whether trial counsel's failure to raise the appellant's good character constituted an error warranting a new trial
Decision
The Court focused primarily on the first ground of appeal: the adequacy of the trial judge's direction to the jury concerning the complainant's delayed disclosure. Howie J, delivering the leading judgment, found that the summing-up fell short of the standard required by the High Court in Crampton v The Queen. That standard requires a judge to give an "unmistakable and firm voice" to the significant disadvantage an accused faces when delays in complaint deprive them of the forensic tools that contemporaneous allegations would otherwise provide.
The critical flaw identified in the summing-up was that the trial judge linked the accused's disadvantage from the delay to the complainant's reasons for not complaining earlier. In doing so, the jury was effectively invited to treat the complainant's explanations for the delay as reducing or neutralising the accused's disadvantage. Howie J held that these are entirely separate matters: the complainant's reasons for delay are relevant only to her credibility, while the accused's forensic disadvantage from delayed complaint exists regardless of whether the delay is explained.
Although trial counsel had not objected to the directions at the time, the Court found that the inadequacy of the directions was sufficient to constitute a miscarriage of justice. Leave to rely on the ground was granted accordingly. Given that finding, the Court considered it unnecessary to address the second ground concerning good character evidence, noting that success on that ground would not in any event have entitled the appellant to an acquittal.
Orders Made
- Appeal allowed
- Convictions and sentences quashed
- Retrial ordered on all charges
Key Takeaways
- A trial judge's direction on delayed complaint must clearly and firmly address the forensic disadvantage suffered by an accused, without conflating that disadvantage with the complainant's reasons for the delay.
- The complainant's explanations for delayed disclosure are relevant only to the complainant's credibility, not to the question of the accused's disadvantage in meeting the allegations.
- Linking a complainant's reasons for delay to the accused's forensic disadvantage in a summing-up risks misleading the jury into treating an explained delay as diminishing the accused's legitimate forensic difficulty.
- A failure by trial counsel to object to an inadequate jury direction does not necessarily preclude the Court of Criminal Appeal from granting leave to rely on that ground, where the direction caused a miscarriage of justice.
- In dismissing the second ground, the Court confirmed it will not determine a ground of appeal where the result, even if successful, could not entitle the appellant to an acquittal and serves no practical purpose.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 107
Cases:
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) 75 ALJR 133
- Crofts v The Queen (1996) 186 CLR 427
- Jones v The Queen (1997) 191 CLR 439
- R v Murray (1987) 11 NSWLR 12
- R v Johnston (1998) 45 NSWLR 362