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12
Court of Criminal Appeal 7 June 2002

Regina v. WRC [2002] NSWCCA 210 revised - 11

[2002] NSWCCA 210

Also reported as (2002) 130 A Crim R 89
Sexual offences
CRIMINAL LAW EVIDENCE CIRCUMSTANTIAL EVIDENCE COINCIDENCE EVIDENCE TENDENCY EVIDENCE RELATIONSHIP EVIDENCE

Citation: Regina v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89
Court: NSW Court of Criminal Appeal
Date: 7 June 2002
Judge(s): Hodgson JA; Greg James J; Kirby J

Background

The appellant was a primary school teacher and Army Reserve officer who taught Year 3 at a Sydney preparatory school in 1977 and 1978. He faced charges of indecent assault against two former male students, both of whom he had taken to army barracks on multiple occasions during those years. The alleged offences occurred at various Sydney locations between 1977 and 1979.

The charges were tried across two separate trials, each before Acting Judge Wall QC and a jury. The first trial concerned four counts of indecent assault on one complainant (CPS) and concluded with guilty verdicts in September 2000. The second trial concerned seven counts relating to a second complainant (TEL) and concluded with guilty verdicts in November 2000. Concurrent sentences were imposed, totalling a substantial combined term of imprisonment.

A critical feature of the proceedings was a pre-trial voir dire in which the judge considered whether the evidence of each complainant could be admitted in the trial concerning the other. The trials were conducted "back to back" before the same judge with different juries. The appellant appealed both convictions to the Court of Criminal Appeal.

  • Whether the cross-admissible evidence of each complainant (used in the other's trial) was properly admitted and adequately dealt with under the tendency and coincidence evidence provisions of the Evidence Act 1995 (ss 97, 98, 99, 100, 101)
  • Whether the probative value of that evidence was outweighed by the danger of unfair prejudice under ss 135 and 137 of the Evidence Act 1995
  • Whether there was a risk of contamination between the complainants' accounts that affected the reliability of the evidence
  • Whether adequate Longman directions were given to the jury, warning them of the dangers of convicting on the uncorroborated evidence of complainants in historical sexual assault matters given the passage of time
  • Whether Rule 4 leave should be granted to permit grounds of appeal not raised at trial, and whether the proviso applied to preserve the convictions despite any error

Decision

The Court of Criminal Appeal upheld both appeals. The court found error in the way the cross-admissible evidence of each complainant was treated in the other's trial, including issues relating to the statutory framework governing tendency and coincidence evidence under the Evidence Act 1995. The regime in ss 97 to 101 was found to have been insufficiently applied, including the requirement that such evidence have significant probative value before admission.

The court also found that the Longman directions given in both trials were inadequate. A Longman direction warns a jury of the forensic disadvantage to an accused arising from the delay in complaint in historical sexual assault cases, where the passage of time may have compromised the accused's ability to respond to the allegations. The failure to give an adequate direction on this point was treated as a significant error, even though no objection had been taken at trial.

On the question of Rule 4, the court granted leave to raise the grounds despite the absence of objection at trial. The court followed the approach in Regina v GPP [2001] NSWCCA 493, which established that Longman direction deficiencies are sufficiently important to warrant leave as a matter of course. Similarly, the court declined to apply the proviso to preserve the convictions. Although the Crown's case was described as strong, the court found it could not be said conviction was inevitable, particularly because the jury had not been properly directed on the prejudice to the appellant arising from delay.

The court also engaged with the risk that the accounts of the two complainants may have been contaminated by contact between them, which had implications for the probative value of the cross-admissible evidence. Contamination, if it occurred, could undermine the very basis on which coincidence evidence is admitted, namely that the improbability of independent similar accounts points toward guilt.

Orders Made

  • The appeal in respect of each trial is upheld.
  • The conviction recorded as a result of each trial is quashed and the sentences set aside.
  • There should in each case be a new trial.

Key Takeaways

  • A Longman direction, warning the jury of the dangers of convicting on historical sexual assault allegations where delay has prejudiced the accused's ability to respond, must be adequate in both content and delivery. An inadequate direction constitutes error even where no objection was raised at trial.
  • Rule 4 leave to raise grounds not objected to at trial is routinely granted by the Court of Criminal Appeal in cases involving deficient Longman directions, reflecting the significance those directions carry in ensuring a fair trial.
  • Cross-admissible tendency and coincidence evidence under the Evidence Act 1995 must satisfy the significant probative value threshold in ss 97 and 98 before admission. The statutory framework imposes distinct requirements that courts must carefully apply during the admissibility assessment.
  • The risk of contamination between complainants' accounts is directly relevant to the probative value of coincidence evidence. Where accounts may not be genuinely independent, the inferential reasoning that supports admission of such evidence is weakened.
  • Declining to apply the proviso confirmed that a strong Crown case does not automatically preserve a conviction where the jury may not have been properly equipped to assess a forensic disadvantage to the accused. The question is whether conviction was truly inevitable, not merely likely.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 95, 97, 98, 99, 100, 101, 135, 137, 192
- Evidence Regulation 2000 cl 6
- Crimes Act 1900 (NSW) s 81

Cases
- Longman v The Queen (1989) 168 CLR 79
- BRS v The Queen (1997) 191 CLR 275
- Hoch v The Queen (1988) 165 CLR 292
- Pfennig v The Queen (1995) 182 CLR 461
- Regina v Glennon (1994) 179 CLR 1
- Crampton v The Queen (2000) 75 ALJR 133
- Doggett v The Queen (2001) 75 ALJR 1290
- Festa v The Queen (2001) 76 ALJR 291
- HG v The Queen (1999) 160 ALR 554
- Regina v GPP [2001] NSWCCA 493
- R v BWT [2002] NSWCCA 60
- R v OGD (No 2) (2000) 50 NSWLR 433
- R v AH (1997) 42 NSWLR 702
- R v Colby [1999] NSWCCA 261
- Shepherd v The Queen (1990) 170 CLR 573
- Mraz v Regina (1955) 93 CLR 493
- Regina v Wilde (1988) 164 CLR 365
- Westerman v The Queen (1991) 55 ACrimR 353