R v B, J

Case [2009] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v B, J

[2009] SASC 110

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)

30 April 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING

Appeal against conviction - appellant convicted of three counts of gross indecency - complainant the appellant's natural daughter - no corroborative evidence supporting complainant's testimony - length of time elapsed between offences and complaint up to five and a half years - appellant did not give evidence - appellant argues trial judge failed to give sufficient warnings regarding the reliability of the complainant's evidence - argues trial judge should have warned the jury of complainant's mother's fixation with child abuse - of complainant's mother giving the complainant a book on child abuse at about the time of complaint - and that complainant had earlier opportunities to report appellant's conduct to counsellor but did not do so - also complains as to the sufficiency of Longman warning given by trial judge - whether judge instructing jury that complainant's conduct in failing to make a prompt complaint not necessarily open to criticism was an error.

Held:  complaints made by appellant regarding mother's influence on complainant and failure of complainant to complain to counsellor more in the nature of defence arguments than factors which might lead to a perceptible miscarriage of justice - trial judge gave clear direction to scrutinise evidence of complainant with great care - trial judge correct not to direct jury that it would be dangerous or unsafe to convict on the complainant's unsupported evidence - whether or not a Longman warning should be given depends upon the circumstances of the case - trial judge gave a balanced direction on failure to complain - any forensic disadvantage suffered by the accused from delay in complaint would have been apparent to the jury - no error in instructing jury that the complainant's delay in making a complaint not necessarily open to criticism - warnings of trial judge apt to meet circumstances of the case - appeal dismissed.

Evidence Act 1929 (SA), s 34CB, s 34I(6a), 34L(5); Statutes Amendment (Evidence and Procedure) Act 2008 (SA), s 16, referred to.
Crampton v The Queen (2000) 206 CLR 161; Doggett v The Queen (2001) 208 CLR 343; R v Murray (1987) 11 NSWLR 12, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Longman warning", "late complaint"

R v B, J
[2009] SASC 110

Court of Criminal Appeal:  Doyle CJ, Vanstone  and White JJ

  1. DOYLE CJ:          I would dismiss the appeal against conviction.  I agree with the reasons given by Vanstone J.

  2. I add the following brief observations.

  3. In this case, as in others, it was argued that the case called for a Longman warning, that one…

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R v B, J [2009] SASC 110
Case
[2009] SASC 110
Decision Date

CaseChat Overview and Summary

The case of R v B, J involved an appeal against a conviction for three counts of gross indecency. The appellant, who was the natural father of the complainant, was convicted based on the testimony of his daughter. The key issues in the appeal related to the adequacy of the warnings given by the trial judge to the jury regarding the reliability of the complainant's evidence. The appellant argued that the trial judge failed to adequately warn the jury about the potential influence of the complainant's mother and the delay in making the complaint. The appellant also contended that the Longman warning, which is a warning about the reliability of uncorroborated evidence in sexual offence cases, was insufficient.

The court examined whether the trial judge's directions to the jury were adequate and whether the warnings were appropriate given the circumstances of the case. The appellant argued that the trial judge should have warned the jury of the mother's fixation with child abuse and the complainant's access to a book on child abuse around the time of the complaint. The appellant further argued that the complainant had opportunities to report the alleged offences to a counsellor but did not do so. Additionally, the appellant questioned the sufficiency of the Longman warning and whether the trial judge's instruction that the complainant's delay in making a complaint was not necessarily open to criticism was an error.

The court concluded that the concerns raised by the appellant were more in the nature of defence arguments and did not constitute factors that might lead to a miscarriage of justice. The trial judge had given clear directions to the jury to scrutinize the complainant's evidence with great care. The court found that the trial judge was correct in not directing the jury that it would be dangerous or unsafe to convict on the complainant's unsupported evidence. The court also held that whether or not a Longman warning should be given depends on the circumstances of each case. The trial judge's balanced direction on the failure to complain was deemed appropriate, and any forensic disadvantage resulting from the delay in the complaint would have been apparent to the jury. The court found no error in the trial judge's instructions regarding the complainant's delay in making a complaint. Consequently, the appeal was dismissed.

The court noted that the rule requiring a judge to give a Longman warning had been abolished, and future cases would be governed by new provisions in the Evidence Act. However, this case was subject to the law in effect at the time of the trial, and the appeal would not alter the outcome of the re-trial if allowed. The court concluded that the warnings given by the trial judge were apt to meet the circumstances of the case and nothing further was required. The appeal was dismissed by the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note in passing that by s 16 of the Statutes Amendment (Evidence and Procedure) Act 2008, the rule requiring a judge to give what has been known as the Longman warning has been abolished. In future cases governed by new provisions inserted into the Evidence Act, a trial judge will not be entitled to give a “warning” in respect of the features which would previously have led to warning in terms of Longman. The judge will not be required to assume any forensic disadvantage to the accused – but will have to form an opinion about it based on the evidence – and will not be entitled to use words such as “dangerous” or “unsafe” in relation to the prospect of a conviction based on such evidence: s 34CB Evidence Act 1929. In Queen v Seigneur [2009] SASC 59, a case stated for consideration of the Full Court relating to the transitional provision regulating the commencement of sections of this amending Act, it was determined that amendments (which include s 34CB) would apply to trials upon any information filed in the court of trial on or after 23 November 2008, being the date the provisions came into effect. Clearly, even if this Court were to allow this appeal, the re-trial of these charges would be governed by the law previously in effect.Conclusion I consider that the terms of the warning were apt to meet the circumstances of the case. Nothing further was called for. I would dismiss the appeal. WHITE J: I would dismiss the appeal. I agree with the reasons of Vanstone J and with the further reasons given by the Chief Justice.

Ratio Decidendi

Legal Principle Established

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